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            Outline Prepared by: Benton Tyler Drinkwine
                    Fall 2006 – University of Denver
Following Constitutional Law Cases, Comments, Questions – 10th Edition
-Drinkwine                                                                                Page 2 of 40
                             CONSTITUTIONAL LAW OUTLINE
      A. Suggestion for Review:
         1) Who:  v.  - facts
         2) What: Cause of Action
         3) Where: Court Levels
         4) When: Dates – surrounding circumstances
         5) Why: What instrument is under question. Why important?
         6) How: Analytical steps to the holding. Look to the following:
            a) Language
            b) Drafter‟s Intent
            c) Structure of the Constitution
            d) Policy
            e) History
      B. How to Analyze
         1) Study the Statute
            a) Understand what it is saying and what it is doing to later attack it or approve it.
      C. Writing the exam
         1) The Appropriate standard of review should be near the top of the exam
      D. Business Regulation Checklist

                                      Federal Regulation on Business Local / State Regulation
Commerce Clause                                    ☻
Dormant Commerce Clause                                                          ☻
Privileges and Immunities                                                        ☻
Substantive Due Process                            ☻                             ☻
Contracts Clause                                                                 ☻
Takings                                            ☻                             ☻

      A. Mere Rationality
         1) The governmental actions will be upheld so long as two conditions are met:
             a) 1) Legitimate State Objective
                 i. The government must be pursuing a legitimate governmental objective
                 ii. Practically any type of health, safety, or general welfare goal will be found
             b) 2) Rational Relation
                 i. There must be a minimally rational relation between the means chosen by the
                     government and the state objective
                 ii. Extremely easy to satisfy: only if the government has acted in a completely
                     “arbitrary and irrational” way will this rational link between ends and means not
                     be found.
      B. Strict Scrutiny
         1) The court will uphold government actions only when two tough requirements are met:
             a) 1) Compelling Objective
-Drinkwine                                                                             Page 3 of 40
             i. The objective being pursued by the government must be compelling, (not just
                 legitimate as in the mere rationality review)
         b) 2) Necessary Means
             i. The means chosen by the government must be “necessary” to achieve that
                 compelling end – thus the fit between the ends and the means must be extremely
                 tight (rational relation between the means and ends is NOT sufficient)
             ii. No less alternative
                  In practice, the Necessary Means requirement means that there must not be
                      any less restrictive means that would accomplish the government‟s objective
                      just as well.
   C. Intermediate Scrutiny (Middle-Level Review)
      1) This middle level review requires the following two things for the act to be upheld:
         a) 1) Important Objective
             i. Government objective must be “important”
                  Half way between legitimate and compelling
         b) 2) Substantially Related Means
             i. The means chosen by the government must be “substantially related” to the
                 important government objective
                  Half way between the “rationally related” and “necessary.”
   D. Consequence of Choices – Who has the Burden of Persuasion?
      1) Mere Rationality
         a) The Individual attacking the governmental act generally has burden of persuasion
      2) Strict Scrutiny
         a) The government body whose act is being challenged has the burden of persuading
             the court
      3) Intermediate Scrutiny (Middle-Level Review)
         a) It is not clear who has the burden, however it usually is placed on the government.
   E. Determining Which Standard of Review to Use:
      1) Mere Rationality
         a) Dormant Commerce Clause
             i. State regulation that affects interstate commerce must meet the mere rationality
             ii. NOTE: There is a second test where the state‟s interest in enforcing the
                 regulation must also outweigh any burden imposed on interstate commerce, and
                 any discrimination against interstate commerce.
         b) Substantive Due Process
             i. As long as no “fundamental right” is involved, the mere rationality test is used.
                  Includes the vast bulk of economic regulations
         c) Equal Protection
             i. Mere rationality review is used so long as:
                  1) No suspect or quasi-suspect classification is being used; AND
                  2) No fundamental Right is being impaired.
             ii. Classes that use the mere rationality standard include: almost all economic
                 regulations; some classification based on alienage; and rights that are not
                 “fundamental” even though they are very important including food, housing and
                 free public education
         d) Contracts Clause
      2) Strict Scrutiny
         a) Substantive Due Process: Fundamental Rights
-Drinkwine                                                                                 Page 4 of 40
              i. Includes the Privacy cluster of marriage, child-bearing, and child-rearing
          b) Equal Protection Review
              i. Strict Scrutiny is used if the classification relates either to a suspect
                 classification or a fundamental right
                  Race, national Origin, sometimes Alienage
                  Vote, Access to the Courts, Interstate Travel
          c) Freedom of Expression
              i. If the government is impairing free expression in a content-based way
                  This includes any interference with the free association
          d) Freedom of Religion / Free Exercise Clause
              i. Even if the government dose not intend to impair a person‟s free exercise of
       3) Intermediate Scrutiny
          a) Equal Protection: Semi-Suspect Classes
              i. Gender and Illegitimacy
          b) Contracts Clause
          c) Free Expression: Non-Content-Based Impairment on Expression
              i. Includes content-neutral “time, place and manner” regulation.

   A. Judicial Review: Review of Acts of Congress
      1) Marbury v. Madison p. 1
         a) What branch of government shall have the final say in interpreting the Constitution?
         b) Facts: Outgoing Federalists appointed several justices of the peace, including
             Marbury (), and were confirmed by the Senate on Adam‟s last days in office.
             Their formal commissions were signed, but not delivered. Madison () as
             Secretary of State was directed by the new President Jefferson to withhold ‟s
             commission.  brought a writ of mandamus directly to the Supreme Court under
             the Judiciary Act of 1789.
         c) Holding: ‟s action is discharged because the original jurisdiction of the Supreme
             Court is limited to those causes listed in Art. III, §2(2) and Congress does not have
             the authority to expand the Supreme Court‟s original jurisdiction.
             i. Was there a right? (Is there an injury?)
                   Yes. He was appointed and his commission was signed and sealed.
             ii. Was there a remedy available?
                   Yes. The court could order him to be placed into the job – and this was a
                     question as to whether the appointment ended in the sealing of Marbury‟s
                     commission or in the delivery.
                      The courts can use judicial review in cases that are based on law; when
                         the cause is merely a political or discretionary question, the Court cannot
                         exercise judicial review..
             iii. Dose the Court have jurisdiction?
                   No.
                      Art. III, §2(2) states that the Supreme Court has original jurisdiction in
                         cases between States, regarding ambassadors.
                      The Judiciary Act of 1789 gives the Supreme Court the power to make
                         writs of mandamus; thus, giving it original jurisdiction.
-Drinkwine                                                                             Page 5 of 40
                            Congress went beyond its Congressional power through expanding
                             the court‟s original jurisdiction which is not allowed under the courts
                             Art. III powers.
                          “The powers of the legislature are defined and limited; and that those
                             limits may not be mistaken, or forgotten, the constitution is written.”
                             – pg. 6
             iv. Supremacy in the Constitution
                  Judicial Job to interpret the Constitution
                      “It is emphatically the province and duty of the judicial department to
                         say what the law is”
                  Constitution is Paramount:
                      The very purpose of a written Constitution is to establish a fundamental
                         and paramount law
      2) Carolene Products (1938) – p. 316
         a) There is a presumption of constitutionality on congressional acts that legislate on
             economic grounds. There is NOT a presumption of constitutionality and review is
             at a narrow scope when Congress legislates on issues of personal rights.
         b) Facts: Congress upheld the constitutionality of a federal statute that prohibited the
             shipment in interstate congress of “filled milk” that it deemed dangerous to public
         c) Judicial Review is a Two-Tier Concept
             i. Ordinary (Economic) Regulation
                  Rational Approach
                  Judicial Review - Begins with a presumption of Constitutional and therefore
                     almost acts as a rubber stamp to legislative and executive powers.
             ii. Footnote 4: Hard Look Doctrine
                  Use this approach when the regulation does one of the following three
                      1) Specific Prohibition within the Constitution (Bill of Rights)
                      2) Restricts Political Processes
                      3) Discrete and insular Minorities (excluded from the political process)
                          Note this is where Congress and the Executive usually get caught
                          The court is designed to protect minorities whereas majorities have
                             the political process and don‟t need protection.
                  Judicial Review - No presumption of Constitutionality
   B. Judicial Review: Review of State Court Decisions
      1) General Principles of Review
         a) When reviewing judgments of state courts, the Supreme Court is exercising its
             appellate jurisdiction.
             i. Art. III, §2 provides that the Supreme Court‟s appellate jurisdiction may be
                 regulated and limited as congress shall provide
             ii. Judiciary Act of 1789, §25 limits the Supreme Court‟s appellate review of state
                 court judgments to federal questions decided by state courts.
                  Thus, the Supreme court cannot review questions of state law.
      2) Martin v. Hunter’s Lessee p. 22
         a) The supreme Court is constitutionally authorized to review the federal
             constitutionality of state court decisions.
-Drinkwine                                                                             Page 6 of 40
         b) Facts: Martin () a British subject, inherited Virginia land from Lord Fairfax who
             died in England. Through state legislation confiscating property of British loyalists,
             Virginia sold the land to Hunter. Hunter‟s lessee () brought an action of ejectment
             before the Virginia trial court.  defended his title based on two treaties between
             the US and Britain and the trial court ruled in favor of Martin. The Virginia High
             Court reversed. The US Supreme Court reversed again, however the Virginia high
             Court refused to comply with the US Supreme Court questioning its jurisdiction and
             control over the Virginia Sovereign.
         c) Holding: The Virginia Court must obey the US Supreme Court‟s ruling because the
             Constitution allows Congress to regulate the Supreme Court‟s Appellate review and
             the Judiciary Act of 1789 is both constitutional and applies in this circumstance.
             i. Language – Is there express language that allows?
                   Art. III, §2(2) Language gives Congress the authority to proscribe appellate
                      jurisdiction of the Supreme Court.
                   The Judiciary Act of 1789, §25 provides for review by the US Supreme
                      Court of final state court decisions rejecting claims under the federal
                      Constitution and laws.
             ii. Drafter‟s Intent –
                   It is clear that they contemplated this occurring through the Supremacy
             iii. Structure of the Constitution
                   Other clauses in the Constitution strip the states of their sovereignty and
                      give such powers to the US. Therefore, the states are NOT absolute
                      sovereigns and gave it up when joining the union.
             iv. Policy
                   If there was no federal oversight, state prejudices and interpretations of
                      federal laws would be inconsistent throughout the union
             v. History
                   Such power has not been challenged in the past under similar review.
      3) Jurisdiction Also Extends to Criminal Cases in State Courts.
         a) Cohens v. Virginia (1821) – p. 26
             i. Chief Judge Marshall expressed a broad view of the Court‟s powers but decided
                  the case on a narrow ground that the federal statute authorizing a lottery had no
                  effect outside Washington DC.
   C. Limits on Judicial Review : Political Questions
      1) Political Questions are “non-justiciable” issues
         a) While the case is technically within the court‟s jurisdiction, it is not appropriate for
             judicial decision making.
         b) More appropriate for the two political branches to solve
             i. “[W]here the heads of departments are the political or confidential agents of the
                  executive, merely to execute the will of the president…nothing can be more
                  perfectly clear than their acts are only politically examinable.” – Marbury v.
                  Madison pg. 3
      2) Meshing of two sets of Principles
         a) Separation of Powers: The Court will not decide matters which it concludes are
             committed by the Constitution to other branches of the government for decision
         b) Prudential Concerns: For various reasons, the Court concludes it is unwise, even if
             not strictly unconstitutional, for it to decide the case
-Drinkwine                                                                              Page 7 of 40
      3) TEST: A controversy involves a political question where there is: (from Baker v. Carr).
          a) A textually demonstrable constitutional commitment of the issue to a subordinate
             political department, OR,
          b) A lack of judicially discoverable and manageable standards for resolving it.
      4) “Commitment to Other Branches” strand: Decisions that have been committed to the
          President or Congress
          a) Impeachment
             i. Majority View: The determination of the grounds of which acts constitute the
                  constitutionally defined” high crimes and misdemeanors” is committed to other
                  branches of government and therefore is a non-justiciable political question
             ii. Senate has the Sole Power to decide what constituted a “trial”
                   Nixon v. United States (1993) – pg. 26
                      Is a Senate rule that confers an impeachment trial to a committee to
                          investigate the facts and then issue a report to the whole Senate
                          unconstitutional violating Art. I, §3, 6 “”The Senate shall have the sole
                          Power to try all Impeachments.” whereas the entire Senate was no
                          involved in the trial?
                           The rule does not violate the Constitution
                      The word try gives the court no judicially measurable standard.
                           Judges are not able to come to a consensus as to the exact meaning
                              of the word “try”.
          b) Amendment of Constitution
             i. Only Congress can determine whether a particular state had ratified a
                  constitutional amendment – Coleman v. Miller (Four Member Concurrence)
          c) Powell v. McCormack (1969) – pg 29 (quoted in Nixon)
             i. Only a limited commitment of the decision-making authority in question was
                  committed to another branch.
             ii. Can the courts review the House of Representatives‟ conclusion that Powell was
                  “unqualified” to sit as a Member because he had been accused of
                  misappropriating public funds and abusing the process of New York courts?
                   Yes.
             iii. There are clear judicially manageable questions for the court to examine
                   Art. I, §5 provides “Each House shall be the Judge of the Elections, Returns
                     and Qualifications of its own Members”
                   Art. I, §2 specifies three requirements for membership in the House: the
                     candidate must be at least 25 years of age, a citizen of the United States for
                     no less than seven years, and an inhabitant of the State he is chosen to
             iv. Congress was not given the right to impose additional qualification for
                   The federal court could still be barred from reviewing a Congressional
                     decision as to whether a member met the three explicit qualifications.
      5) “Lack of Judicially Manageable Standards” strand
          a) Time for Ratifying Amendments
             i. Coleman v. Miller (1939) – p. 34
                   Plurality opinion concluded that the issue of how much time could pass
                     before ratification was a political question.
                   The court found that there was no criteria for such a judicial determination
                      The Constitution was silent
-Drinkwine                                                                             Page 8 of 40
                      Only Congress had the institutional competence to make this determination
                       (as it had done by setting ratification time limits in other amendments
                       previously proposed and as it has done so in nearly all instances since).
         b) Guarantee of Republican Form of Government
             i. Art. IV, §4: “The United States shall guarantee to every state in this Union a
                  Republican Form of Government.”
             ii. There is a “lack of criteria by which a court could determine which form of
                  government was republican.” – Luther v. Borden – p. 37
             iii. The Court has never departed from the view that all Guaranty Clause claims
                  present a non-justiciable political question
                   Note: The guaranty clause would have furnished a convenient way to
                       dispose of the reapportionment cases; however, in Baker v. Carr, the Court
                       instead relied solely on the Equal Protection Clause.
         c) War Powers Disputes
             i. If the federal courts were called upon to referee a dispute between the President
                  and Congress concerning whether the President had usurped Congress‟ war-
                  making powers by committing our armed forces to combat without
                  congressional approval, the “lack of judicially manageable standards” strand
                  might cause the case to be regarded as a political question.
      6) The Need for a unified voice (Especially in Foreign Affairs)
         a) The need for the federal government to speak with a single, unified voice has
             occasionally been a factor in the conclusion that an issue presents a political
             question. – Most likely area is in foreign affairs.
         b) Treaty termination
             i. Goldwater v. Carter (1979) – p. 39
                   The court refused to decide whether the President can terminate a treaty
                       with Taiwan without Congressional approval. The four member plurality
                       may have had the “single voice” rationale in mind when it remarked that the
                       case posed a political question because it “involves the authority of the
                       President in the conduct of our country‟s foreign relations.”
   D. Limits on Judicial Review: Congressional Regulation of Judicial Power
      1) The General Problem:
         a) The only direct grant of jurisdiction is that Art. III, §2 states the Supreme Court
             shall have original jurisdiction in cases involving ambassadors, ministers, and
             consuls and in cases where a state is a party.
         b) Art. III, §2(2) – “… In all the other Cases before mentioned , the supreme Court
             shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions,
             and under such Regulations as the Congress shall make.”
         c) “The appellate jurisdiction of this court is not derived from acts of congress. It is,
             strictly speaking, conferred by the Constitution. But it is conferred “with such
             exceptions and under such regulations as Congress shall make.” – Ex Parte
             McCardle – p. 43
      2) Congress has at least some power to control the Supreme Courts appellate jurisdiction
         a) Ex Parte McCardle (1809) – p. 42
             i. Congress has the authority to strip the Supreme Court of its authority to hear an
                  appeal over a habeas corpus case.
             ii. “The Appellate jurisdiction of this Court is not derived from acts of Congress.
                  It is, strictly speaking, conferred by the Constitution. But it is Conferred „with
                  such exceptions and under such regulations as Congress shall make. “
-Drinkwine                                                                           Page 9 of 40
                    Note: Today there are suggestions that Congress cannot strip the court of its
                     jurisdiction of a case while it is in review as Congress did in McCardle. The
                     Court will sometime look to see if there is a negative Congressional Intent
                     on a single case.
      3) Congress does not have unlimited power to tamper with Supreme Court‟s appellate
         a) United States v. Klein (1872) – p. 45
             i. Any jurisdictional limitation must be neutral; that is, Congress may not decide
                 the merits of a case under the guise of limiting jurisdiction.
         b) Practical Limitation
             i. Without Supreme Court jurisdiction in an area, the individual court of appeals
                 will be left to go there own ways, destroying national uniformity of the law in
                 that area.
      4) Select Commentaries on Congressional power to regulate the Supreme Court‟s
         appellate jurisdiction – pg. 44
         a) Essential Functions Theory: “Surely the framers did not intend to allow Congress to
             take away the power of the Supreme Court in two core values:
             i. Hart: In order for exceptions to the Court‟s jurisdiction to be constitutionally
                 permissible under Art. III, the exceptions “must not be such as will destroy the
                 essential role of the Supreme Court in the constitutional plan.”
             ii. Ratner: Art. VI‟s Supremacy Clause, and through Art. III establishing the
                 Supreme Court as the constitutional instrument for implementing that clause,
                 the essential functions of the Supreme Court under the Constitution are:
                  1- ultimately to resolve inconsistent or conflicting interpretations of federal
                     law, and particularly of the Constitution, by state ad federal courts;
                  2- to maintain the supremacy of federal law, and particularly the
                     Constitution, when it conflicts with state law or is challenged by state
         b) Reaction to the Essential Functions Theory:
             i. Redish: “[I] might well agree as a policy matter, that Congress should not
                 possess the power to tamper with performance of the Supreme Court‟s rule,
                 [but] I can find no constitutional basis for erecting such a [limitation].”
   E. Limits on Judicial Review: Certiorari
      1) In 1988, Congress virtually eliminated the Court‟s mandatory appeal jurisdiction
      2) Nearly all cases now come to the court through Grants of Certiorari
         a) Four Votes Needed
         b) Denial of certiorari is NOT a decision on its merits and therefore is NOT a

   A. Sources and Nature
      1) Nature of Federalism:
         a) Government has Limited Powers
            i. National government an only assert those powers specifically granted by the US
                Constitution (can include implied powers)
                 Federal Government has no general police power. i.e. regulate for the health,
                    safety, or general welfare of the citizenry.
-Drinkwine                                                                            Page 10 of 40
                    Congress does have the power to lay and collect taxes and to provide for the
                     general welfare of the United States
            ii. Actions by state governments are valid under federal law unless it violates some
                 specific limitation imposed by the US Constitution
      2) Sources
         a) Enumerated Powers – Most are found in Art.I,§8
         b) Implied Powers – Art. I, §8 “Necessary and Proper Clause”
            i. Not only are explicit powers authorized by the Constitution, implied powers, or
                 those that are ancillary to one of the powers explicitly listed in the Constitution
                 so long as they do not conflict with prohibitions
            ii. McCulloch v. Maryland (1819) – p. 58
                  The Court relied on the necessary and proper clause as a justification fro
                     Congress‟ right to create a bank or corporation even though the power was
                     not specifically granted in the Constitution
                  TEST: If the ends are legitimate, then any appropriate means, not
                     prohibited, and consistent with the spirit of the constitution, are
                  Necessary does NOT mean “absolutely necessary” or “indispensable.”
                      “Let the end be legitimate, let if be within the scope of the constitution,
                         and all means which are appropriate, which are plainly adapted to that
                         end, which are not prohibited, [and which are consistent] with the letter
                         an spirit of the constitution, are constitutional.”
                  The chartering of the national bank was valid because it bore a reasonable
                     relationship to various constitutionally-enumerated powers of the
                     government (the power to collect taxes, to borrow money, to regulate
                     commerce etc.)
                      Thus, Maryland tax on the national bank system was invalid because it
                         interfered with the exercise of a valid federal activity.
            iii. Modern Importance of Implied Powers
                  Standard in McCulloch is still valid
                  The courts will not strike down a congressional action so long as Congress
                     employed a means which is not prohibited by the Constitution and which is
                     rational related to objectives that are themselves within the constitutionally-
                     enumerated powers.
                      Motives are irrelevant, and the courts give great deference to Congress
   B. Commerce Power
      1) Source:
         a) Article I, §8 gives Congress the power “to regulate Commerce with foreign nations,
            and among the several States, and with the Indian Tribes.”
         b) Limitation on states vs. limitation on Congress:
            i. Commerce Clause acts as a source of congressional authority AND it acts
                 implicitly as a limitation on state legislative power
      2) There seem to be three broad categories of activities which Congress can
         constitutionally regulate – Lopez:
         a) 1) Channels – Congress can regulate the channels of interstate commerce. Thus,
            Congress can regulate in a way that is reasonably related to highways, waterways,
            and air traffic
            i. – Heart of Atlanta, Darby
-Drinkwine                                                                                  Page 11 of 40
          b) 2) Instrumentalities – Congress can regulate the instrumentalities of interstate
             commerce, “even though the threat may come only from intrastate activities” –
             i. Refers to people, machines, and other things used in carrying out commerce.
             ii. Example: Congress could say that every truck must have a specific safety
                  devise, even if a particular truck in question was made and exclusively used
                  within a single state.
             iii. – Shreveport Case
          c) 3) Articles Moving in Interstate Commerce – (NOTE: this category is not listed
             in Lopez) – Congress can regulate articles moving in interstate commerce.
             i. In Reno v. Condon (2000), Court said that computerized information about
                  motorists was an “article of commerce” and appropriate for Congressional
                  regulation even though the information did not “substantially affect” commerce
                  (as in the 4th category below).
          d) 4) Substantially Affecting Commerce – United States v. Darby (1941) p. 79 ruled
             that the Fair Labor Standards Act constitutional even though it did not directly
             regulate commerce - rather it regulated an aspect of manufacturing, wages and
             hours of individuals employed in the production of goods. This was permissible
             under the commerce Clause when augmented by the Necessary and Proper Clause.
             The Darby court favorable cited McCulloch v. Maryland’s broad view of the
             Necessary and Proper Clause and held that Congress could regulate interstate
             activity that had a “substantial effect on interstate commerce.” Note: See also the
             cases in the Commerce Power: Civil Rights Legislation (below). Criteria below is
             noted in United States v. Lopez (1995) – p. 92 (Gun-Free School Zones Act of
             1990) and United States v. Morrison (2000) – p. 91(Violence Against Women Act of
             1984) (cited by Rehnquist in Morrison):
             i. Activity must be Commercial
                   Activity is Commercial on its face
                       If the regulated activity is itself arguable commercial, then it doesn‟t
                           seem to matter whether the particular instance of the activity directly
                           affects interstate commerce, as long as the instances is part of a general
                           class of activities that collectively, substantially affect interstate
                       Gonzales v. Raich – π‟s own marijuana-growing activities are in a sense
                           “commercial,” but are entirely intrastate; however, when aggregated
                           with all other local medicinal-marijuana-growing activities π‟s activities
                           might undermine Congress‟s interstate-regulatory scheme. (Congress
                           can then regulate even the solely intrastate events).
                   Activity is Not Commercial on its face
                       If the regulated activity itself is not commercial, then there will
                           apparently have to be a pretty obvious connection between the activity
                           and interstate commerce.
                       Cumulative Affect: Wickard v. Filburn (1942) – p. 83 – The
                           Agricultural Adjustment Act of 1938 was upheld because the π‟s act of
                           raising and consuming wheat on his own small farm had a market affect
                           whereas “taken together with that of many others similarly situated” has
                           an affect on interstate commerce whereas home-grown wheat “supplies a
                           need of a man who grew it which would otherwise be reflected by
                           purchases in an open market.”
-Drinkwine                                                                            Page 12 of 40
                           We know from Lopez that the link must be more obvious than the
                            link between guns-in-schools and commerce
                         We know from Morrison that the link must be more obvious than the
                            one between gender-based violence and commerce.
                Lopez: Gun-Free Zone has nothing to do with interstate commerce no matter
                    how broadly it is examined
                Morrison: Gender motivated crimes have nothing to do with economic
          ii. Statute Should have an “express jurisdictional element which might limit
               its reach to an explicit connection with or effect on interstate commerce”
                Lopez: Gun-Free Zone has “no jurisdictional element which might limit its
                    reach to a discrete set of firearm possessions that additionally have an
                    explicit connection with or effect on interstate commerce.”
                Morrison: The Violence Against Women Act “contains no jurisdictional
                    element establishing that the federal cause of action is in pursuance of
                    Congress‟ power to regulate interstate commerce.
          iii. Legislative History should contain express congressional findings regarding
               the effects that the regulated activity has on interstate commerce
                Lopez: The legislative history of the Gun-Free Zone statute “contains no
                    express congressional findings regarding the effects upon interstate
                    commerce of gun possession in a school zone.”
                Morrison: There are numerous findings within the legislative history
                    regarding the serious impact that gender-motivated violence has on victims
                    and their families. However, “simply because Congress may conclude that a
                    particular activity substantially affects interstate commerce does not
                    necessarily make it so.” (quoting Lopez and Hodel) It is “ultimately a
                    judicial rather than a legislative question and cam be settled finally only by
                    this Court” (quoting Heart of Atlanta (Black, J., concurring)).
          iv. There must be a link between the regulated activity and a substantial effect
               on interstate commerce.
                Note: This reverses the trend where the courts generally gave great
                    deference to Congress since Darby. – No longer the rational basis. The
                    effect must in fact exist to the Court‟s own independent satisfaction.
                Lopez: The link between gun possession and a substantial effect on interstate
                    commerce was attenuated.
                Morrison: The but-for causal chain from every violent crime to the effect on
                    interstate commerce is tenuous.
          v. Kennedy Concurrence in Lopez: Traditional Domain of States Off Limits:
                If the activity being regulated has traditionally been the domain of the states,
                    and is where the states have the expertise, the Court is less likely to find that
                    Congress is acting within its Commerce Power.
                     Education, Family law, and General Criminal Law
                EXCEPTION (Not Mentioned by Kennedy): This can be outweighed by a
                    showing that a national solution is needed.
                     For example, where one state‟s choice heavily affects other states
                         i.e. Environment, air / water pollution migrate across state borders.
   C. Commerce Power: Federal Criminal Laws
-Drinkwine                                                                               Page 13 of 40
      A broad reading of Congress‟ Commerce Clause powers has been applied in a number of
      decisions involving federal criminal statutes:
      1) Ban on Marijuana Cultivation Gonzales v. Raich (2005) – p. 102
          a) The Court upheld Congress‟s power to criminalize even the purely local, non-profit
              oriented growing of medicinal marijuana.
          b) Used the “cumulative effect” rationale:
              i. The sale of marijuana as a whole had an effect on interstate commerce; and
              ii. Congress reasonable feared that its entire regulatory scheme would be
                   undermined if Congress were required to exempt purely local non-profit
                   medicinal cultivation, since some of this supposedly-local supposedly-nonprofit
                   marijuana might leak into the interstate marked and substantially affect it.
      2) Commerce Prohibiting Technique: Banning the interstate transportation of persons or
          items in a matter incident to some criminal activity
          a) The Mann Act: Prohibits the interstate transportation of women for immoral
          b) The Dyer Act: Makes it a crime to transport a stolen vehicle across state lines
      3) Seemingly Local Activities: United States v. Perez (1971) – p. 86
          a) Criminal statutes affecting even seemingly local activities will be upheld if
              Congress has shown a clear intent to encompass such activities. As a matter of
              statutory interpretation, the more local the activities of the defendant, the more
              likely the Court is to conclude that Congress did NOT intend to reach those
   D. Commerce Power: Civil Rights Legislation
      Congress has used the commerce power as a source of governmental authority to prohibit
      various forms of discrimination in the economic marketplace, including race, gender, age,
      and disability.
      1) Title II of the 1964 Civil Rights Act bans discrimination in places of public
          accommodation. This ban does so by covering any establishment which serves
          interstate travelers, or, in the case of restaurants, which buy food - a substantial portion
          of which had moved in commerce. As the cases below shoe it encompasses even
          “local” enterprises.
      2) Heart of Atlanta Motel, Inc. v. United States (1964) – p. 87
          a) Congress could have reasonably concluded that racial discrimination by motels
              serving interstate travelers substantially affected interstate commerce when enacting
              the Civil rights Act of 1964.
          b) Facts: The motel was near the intersection of two major interstates, derived 75% of
              its occupancy from out-of-state guests, and solicited business in national media.
              i. Legislative History showed a pattern off nationwide exclusionary practices that
                   imposed a “qualitative as well as a quantitative effect on travel by Negroes. The
                   former was the obvious impairment of the Negro traveler‟s pleasure and
                   convenience that resulted when he continually was uncertain of finding lodging.
                   As for the latter, there was evidence that this uncertainty stemming from racial
                   discrimination had the effect of discouraging travel on the part of a substantial
                   portion of the Negro community.”
          c) “The power of Congress to promote interstate commerce also includes the power to
              regulate the local incidents thereof, including local activities in both the states of
              origin and destination, which might have a substantial and harmful effect upon that
      3) Katzenbach v. McClung (1964) – p. 88
-Drinkwine                                                                                Page 14 of 40
          a) Congress could have reasonably concluded that racial discrimination by restaurants
             had a depressing effect on the economy by diminishing the amount spent in such
             restaurants by black customers and by imposing a “depressant effect on the general
             business conditions in the respective communities.”
             i. This burden on interstate commerce, albeit indirect, was sufficiently substantial.
          b) Facts: Ollie‟s Barbecue was relatively far from any interstate or train or bus station,
             and there was no evidence that an appreciable part of its business was in serving
             out-of-state travelers. However, 46% of the food purchased by the restraint during
             the previous year had been bought from a supplier who had brought it from out of
          c) The court upheld the civil Rights Act by looking to Wickard v. Filburn, even
             though Ollie‟s was small, and the value of the food it purchased from out of state
             had only an insignificant effect on commerce, the restaurant‟s discriminatory
             conduct was representative of a great deal of similar conduct throughout the
             country, and this conduct in aggregate clearly had an effect on interstate commerce.
   E. Intergovernmental Immunities: Limitations imposed by the 10th Amendment
      1) Overview
          a) The 10th Amendment: “the powers not delegated to the United States by the
             Constitution, nor prohibited by it to the States, are reserved to the States
             respectively, or to the people.”
          b) Two types of controversies
             i. Taxing of state or federal government
             ii. Regulations
      2) Tax Immunity
          a) Federal government is largely immune from state taxes
          b) State Government immunity from federal taxes is very narrow
             i. Exceptions (when federal taxes on state governments are struck down)
                  Discriminatory
                  Severely interferes with state / local governmental duties
      3) Commerce Clause Regulatory Authority (When Congress is Directing Activity)
          a) Congress can generally direct actions
             i. Garcia v. San Antonio Metro Transit Authority (1985) – p. 133
                  Effect of Garcia: If the regulation would be valid if applied to a private
                     party, it is also valid as to the state… the fact that there is a 10th Amendment
                     has virtually no practical significance.
                  Minimum-wage and overtime provisions of the Fair Labor Standards Act
                     can apply to employees of a municipally-owned and operated mass-transit
                  Overruled National League of Cities’ “traditional government functions
                      “Any rule of state immunity that looks to the „traditional,‟ „integral,‟ or
                         „necessary‟ nature of governmental functions inevitably invites an
                         unelected federal judiciary to make decisions about which state policies
                         it favors and which ones it dislikes.”
                  State sovereign interests are protected by Procedural Safeguards inherent in
                     the structure of the federal system - Each state has two senators, states have
                     a special role in the election of the president through the electoral college.
-Drinkwine                                                                               Page 15 of 40
          b) Exception: Congress may NOT compel a state or local government‟s to administer
             a federal regulatory program– no matter if they are ministerial , temporary, and easy
             to perform.
             i. Printz v. United States (1997) – p.140
                  The 1993 Brady Bill temporarily ordered local law enforcement officials to
                     conduct background checks on prospective gun buyers.
                  Scalia‟s opinion did not explicitly say that it violated any particular
                     constitutional provision; rather he seemed to rely on a general, non-textual
                     principle of state sovereignty. “It is an essential attribute of the States‟
                     retained sovereignty that they remain independent and autonomous within
                     their proper sphere of authority.”
          c) Exception to the Exception : The court now has breathing room.
             i. Reno v. Condon (2000) – p. 148
                  “A State wishing to engage in certain activity must take administrative and
                     sometimes legislative action to comply with federal standards regulating that
                     activity is a commonplace that presents no constitutional defect.”
                  The court acknowledges that the DPPA requires time and effort on the part
                     of state employees, but it rejects the State‟s argument that the DPPA violates
                     the principles laid down in New York or Printz

     A. Separation of Powers: Formalism v. Functionalism
        1) Formalist Approach – not implemented much today
           a) Strict separation of powers with no blending of such powers
              i. There are 3 branches of government and the framers wanted clear division
                  between them
           b) Test: Is the act legislative, executive, or judicial in nature? Is the appropriate
              branch acting?
        2) Functionalist Approach
           a) There are 3 branches of government, each have certain core powers that the other
              branches should not interfere with.
              i. There are overlapping powers where more than one branch can act
           b) Key Concern: Making sure that the checks and balances work.
           c) Test: Is the action a substantial interference with the other branch of government
              that shares that power?
              i. If it is then it is unconstitutional
              ii. If it is not, then it is constitutional

     A. General Problem
        1) Source of Power:
           a) There are only a few powers which are explicitly granted by the Constitution to the
              President – enumerated in Art. II, §2.
           b) Much of the President‟s powers in both foreign and domestic spheres are implied.
              i. Art. II, § 1 “The executive Power shall be vested in a President…”
-Drinkwine                                                                               Page 16 of 40
          c) If the Supreme Court concludes that a presidential action is properly regarded as
             executive rather than legislative or judicial, then the act will be upheld even without
             it falling within any specific constitutionally-enumerated power.
   B. Domestic Matters
      1) President cannot make laws; he can only carry them out.
          a) Youngstown Sheet & Tube Co. v. Sawyer - Steel Seizure Case (1952) – p.151
             i. Truman acted outside his constitutional powers when he issued an order
                  directing the Secretary of Commerce to take possession of an operate most of
                  the nations steel mills to avoid them from shutting down during a labor dispute.
                   The Court determined this act was an unconstitutional exercise of
                      lawmaking authority.
             ii. Black‟s opinion uses the formalist approach to strike the seizure down.
             iii. Frankfurter‟s Concurring Opinion suggests looking to history and tradition to
                  provide meaning to “the words of the text [of the Constitution].”
             iv. Jackson‟s Concurring Opinion used the functionalist approach
                   The President‟s powers “are not fixed but fluctuate, depending on their
                      disjunction or conjunction with those of Congress.” Jackson conceived of
                      three categories:
                       1) Where the President acts pursuant to express or implied authorization
                          of Congress, in which case his authority is at its maximum;
                       2) Where the President acts in absence of either grant or denial of
                          authority, in which case “there is a zone of twilight in which he and
                          Congress may have concurrent authority, or in which its distribution is
                          uncertain”; and,
                       3) Where the President acts in contradiction to the express or implied
                          will of Congress; in this case, his power is “at its lowest ebb.” –
                           Jackson felt that the steel seizure fell into this third category and
                              therefore could not be constitutionally justified.
      2) Implied Acquiescence by Congress:
          a) Congress may sometimes be found to have impliedly acquiesced in the President‟s
             exercise of power in a certain area. – this may be enough to tip the balance in favor
             of a finding that the President acted within the scope of his constitutional authority.
          b) Acquiescence Found - .Dames & Moore v. Regan (1981) – p. 157
             i. The Court unanimously upheld presidential executive orders to implement an
                  executive agreement between Iran and the US securing the release of American
                  hostages held in Iran for 15 months in 1979-81.
             ii. The Court relied on the analysis in the Jackson‟s Steel Seizure Case
                   While Congress has never explicitly delegated to the President the power to
                      suspend such claims, it had implicitly authorized that practice by a long
                      history of acquiescing in similar presidential conduct.
                       (for instance, Congress had implicitly approved the use of executive
                          agreements between the President and foreign powers to settle claims.)
             iii. NOT DISPOSITIVE: The fact that Congress has impliedly consented to
                  Presidential action will almost certainly not by itself bring the action within the
                  scope of constitutional authority: it will merely be a factor in the analysis of
                  close cases.
-Drinkwine                                                                            Page 17 of 40
                     In Dames and Moore, the President‟s general executive authority in foreign
                      policy matters (and perhaps his Commander-in-Chief powers) were
                      probably also a part of the equation
         c) Acquiescence NOT Found – Hamdan v. Rumsfeld (2006) – not in casebook
             i. Especially in a controversial area of wartime powers, the Court will be reluctant
                  to conclude that a vague or ambiguous Congressional statute constitutes implicit
                  acquiescence in the President‟s exercise a particular wartime power.
                   If Congress wants to authorize the President to exercise a particular wartime
                      power, it will have to confer that authority relatively explicitly.
             ii. The Court rejected George W. Bush‟s claim that in the aftermath of the 9/11
                  terror attacks, Congress had implicitly granted him power to set up military
                  commissions to try Al Qaeda members for war crimes.
             iii. The majority concluded that the Authorization to use Military Force, which
                  authorized the President to use “all necessary and appropriate force against
                  those nations, organizations, or persons he determines planned, authorized,
                  committed, or aided the terrorist attacks,” that Congress had NOT intended to
                  repeal the Uniform Code of Military Justice‟s rule barring military
   C. International Affairs
      1) Special Presidential Role in Foreign Affairs
         a) The Constitution gives the President substantially greater authority with respect to
             foreign affairs than with respect to domestic ones.
             i. Art. II, §2 explicitly enumerates Commander-in-Chief Power, treaty-making
                  power, and the right to appoint ambassadors
             ii. More generally, the need to present a clear and unified face to the world dictates
                  that the President bears a special role in implementing the nation‟s foreign
         b) United States v. Curtis-Wright Export Corp. (1936) – p. 162
             i. Broad Congressional delegation of legislative power was constitutional when
                  Congress authorized the President to ban the sale of arms to countries engaged
                  in particular conflict.
             ii. The court stressed the “very delicate, plenary and exclusive power of the
                  President as the sole organ of the federal government in the field of international
                   Note: This is scary: plenary = unlimited / unchallenged
             iii. Presidential Actions was in accord / harmony with Congressional intent.
             iv. Holding: Broader delegation of lawmaking power by Congress to the President
                  will be tolerated in the area of international affairs than in the domestic area.
   D. War Powers
      1) Generally:
         a) The Constitution gives both Congress and the President special powers with respect
             to war
             i. In Art. I §8, Congress is given the powers to “declare war… and make Rules
                  concerning Captures on Land and Water.” Congress is also given the power to
                  “raise and support Armies,” to “define and punish…Offenses against the Law of
                  Nations,” and to “make Rules for Government and Regulation of the land and
                  naval Forces.”
-Drinkwine                                                                             Page 18 of 40
            ii. In Art. II, § 2, the President is made the “Commander in Chief” of the armed
                 forces. In Art. II, §1, more generally, “the executive Power” is “vested” in the
         b) Basic Idea is that Congress declares war and maintains the armed forces, while the
            president carries out any war that is so declared.
      2) Commitment of Armed Forces Abroad: The use of the Commander-in-Chief powers to
         commit the use of American armed forces abroad:
         a) Courts Silent:
            i. To date, the courts have not accepted a case regarding the War Powers Act
                 because this is a political question.
            ii. Although the President has committed the Armed Forces to military action
                 without a declaration of war at numerous times during our history, the courts
                 have rarely passed on the constitutionality of such action. Generally, Congress
                 has tacitly acquiesced in such action, so that no litigation has arisen.
            iii. Campbell v. Clinton (2000) – p. 165
                  A number of congressmen filed suit claiming that the President violated the
                     War Powers Resolution and the War Powers Clause of the Constitution by
                     directing US forces‟ participation in the NATO campaign in Yugoslavia.
                  The Circuit Court upheld the District Court‟s dismissal for lack of standing.
                      This is a political question
                          Majority Opinion:
                              There is no justiciable standard
                              The Court does not know how to define “war”
                          Concurring Opinion
                              Defining words is part of the Court‟s job
                              War is ambiguous, but it is not anymore ambiguous as to other
                                  words in the Constitution – such as “due process”.
         b) Sudden Attack
            i. It is settled that the President may commit forces to repel a sudden attack upon
                 the United States itself
                  The Prize Cases (1863) a majority held that Lincoln could blockade
                     Southern ports following the Confederate attack on Fort Sumter.
                      The majority reasoned that the President could resist an attack by a
                         foreign nation: the fact that the attack came from an internal part of the
                         Union did not strip the President of his power to take unilateral action.
         c) Attack on Allies
            i. The Prize Cases decision is not clear whether the President may commit forces,
                 without congressional approval, where an ally is attacked.
         d) Preemptive Strike
            i. The President‟s right to order a preemptive strike in anticipation of an enemy
                 attack is unclear.
                  Since in this situation there would probably not be time for Congress to
                     consider the wisdom of military action, a providentially-ordered preemptive
                     strike would likely be found constitutional
         e) Defense Treaties
            i. The US is party to many collective defense treaties, pledging to come to the aid
                 of any treaty member who is attacked.
-Drinkwine                                                                             Page 19 of 40
             ii. Since the treaty has been ratified by the Senate, it can be argued that this
                  constitutes sufficient authorization for the President to commit troops
                   However, this process bypasses the House of Representatives which are
                      given the constitutional authority to vote on war resolutions
          f) Delegation by Congress
             i. Congress sometimes delegates to the President in advance the discretion to
                  commit the armed forces.
             ii. The Gulf of Tonkin Resolution state that the US is “prepared, as the President
                  determines, to take all necessary steps…”
             iii. Criticism: It can be argued that such a broad delegation of Congress‟ war-
                  making powers is unconstitutional.

   A. Summary – How to Approach Separation of Powers Issue:
      1) Approach the issue from a “Formalist” Approach, AND then from a “Functionalits”
      2) Formalist Approach:
         a) What kind of power?
         b) In what branch is that power being executed?
             i. If it is unclear of which branch is acting, look to see who has removal power
         c) If the type of power does not match with the corresponding branch of government,
             then it is unconstitutional
      3) Functionalist Approach:
         a) Is there an “interference” with essential functions of a branch?
         b) Is there a wrongful expansion of a power of a certain branch?
   B. The (Non-)Delegation Doctrine – Frameworks of Administrative Law
      1) Congress cannot delegate its legislative powers to another branch – Mistretta v. US
      2) TEST: Delegation will be upheld if Congress furnishes an “intelligible principle” that
         rulemakers are bound to follow.
      3) Limits on the delegation of legislative power.
         a) Yakus v. United States (1944) – p. 180
             i. The Court upheld the WWII emergency price control act authorizing the
                 president-appointed administrator to issue regulations establishing maximum
                 prices and rents to “stabilize prices and prevent speculative, unwarranted, and
                 abnormal increases in prices and rents.”
             ii. The Statute must state:
                  1) the Legislative Purpose
                  2) The means / methods of achieving that objective
                  3) The standards to guide the administrative determination.
         b) Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984) – p. 181
             i. If Congress has explicitly left a gap for the agency to fill, the agency‟s
                 interpretation of its governing statute are valid unless they are procedurally
                 arbitrary, capricious, or manifestly contrary of the statute; if the delegation is
                 implicit rather than explicit, the agency‟s interpretation is valid if it is
   C. Legislative Veto
      1) Generally
-Drinkwine                                                                                  Page 20 of 40
          A devise which enables Congress to monitor actions by the executive branch, including
          federal administrative agencies. Typically, such a legislative veto provision is included
          as part of a congressional statute delegating certain powers to federal agencies. If, after
          an agency takes a certain action (usually, issuance of a regulation), Congress disagrees,
          the veto provision in the original bill allows one or both houses to cancel the
          administrative action by means of a resolution. The resolution is NOT presented to the
          President (as a statute must be), and he does not receive the opportunity to veto it.
      2) One House Veto
          a) Violates both the President‟s veto power and the bicameral structure of Congress
          b) Immigration and Naturalization Service v. Chadha (1983) – p. 185
              i. Statute at Issue: Congress delegated to the Attorney General the authority to
                   suspend deportation of aliens in certain situations. However, in order to retain
                   some control over this delegated power, Congress reserved for itself a
                   legislative veto over each decision by the Attorney general suspending
                   deportation. The veto could be exercised by a resolution passed by EITHER
                   house within a certain time frame.
              ii. Issue: Whether the House‟s issuance of a legislative veto here itself constituted
                   the exercise of legislative power.
                    The Court found that overruling the Attorney General‟s decision on a
                       deportation matted DID constitute the exercise of legislative power.
                    It had the “purpose and effect of altering the legal rights, duties, and
                       relations of persons… outside the legislative branch.”
              iii. Powell‟s Concurrence: This is a judicial action and therefore it is not
              iv. Consequently, Congress could reverse the Attorney General‟s decision on a
                   deportation matter only by passing a law, in the constitutionally-prescribed
                   manner. The fact that the legislative veto may be a more “efficient” means of
                   controlling administrative action was irrelevant.
      3) Two House Veto
          a) Legislative veto clauses allowing a veto only when BOTH houses act concurrently
              are just as unconstitutional as a single-house veto provision, because both types
              deprive the president of his veto power.
      4) Example of Single House Actions Approved by the Constitution
          a) Senate could pass a resolution that all presidential appointments shall be deemed
              approved by the Senate if that body does not vote to reject them within a certain
              period of time.
              i. The Senate alone is given the power to approve or disapprove presidential
              ii. Such a provision might be attacked on the theory that it delegates to the
                   Executive Branch Powers which must be affirmatively exercised by the Senate
   D. Line-Item Veto
      1) The Presentment Clause in Art. 1 § 7 gives the President the power to veto any bill
          passed by Congress. Presentment clause provides that after a bill has passed both
          houses of Congress, but before it has become law, it must be presented to the president:
          if he approves it, “he shall sign it, but if not he shall return it, with his objections to that
          house in which it had originated, who shall… proceed to reconsider it.” – Commonly
          known as a presidential veto.
      2) Clinton v. City of New York (1998) – p. 190
-Drinkwine                                                                                Page 21 of 40
          a) How the Line-Item Veto Worked
             i. The Line Item Veto Act gave President Clinton the power to “cancel” any of
                  several types of provisions contained in new statutes enacted by Congress
                   Including: any item of new direct spending and any limited tax benefit.
             ii. The net affect of the Act was to let the President plus one-third of Congress (the
                  percentage necessary to uphold the President‟s veto of the disapproval bill) veto
                  any individual item of spending or limited tax benefit.
          b) Stevens‟ majority opinion
             i. The Line Item Veto failed to follow the Presentment clause‟s method of
                  enacting or repealing statutes.
                   The presentment clause was the only way authorized in the Constitution to
                       enact or repeal a bill.
             ii. The Act failed to follow the procedure in two ways
                   1) The President‟s “return” of the bill occurred after the bill had been signed
                       into law, rather than before
                   2) the cancellation could apply to only part of the bill, whereas the
                       Presentment clause requires the veto of the entire bill.
             iii. Net effect was to authorize the President to create a different law.
          c) Kennedy Concurrence
             i. The act “establishes a new mechanism which gives the President the sole ability
                  to hurt a group that is a visible target, in order to disfavor the group or to extract
                  further concessions from Congress.” This “enhances the President‟s powers
                  beyond what the framers would have endorsed.”
   E. Appointment and Removal Powers
      1) Test:
          a) Functionalist Analysis:
             i. Does the action significantly interfere with another branch of power to execute
                  its power?
             ii. When Congress limits Presidential powers and increases Congressional powers:
                   Unconstitutional
             iii. When Congress limits Presidential powers and does NOT increase
                  Congressional powers:
                   Constitutional
          b) Formalist Approach
             i. What Branch of power is the officer in?
             ii. What kind of power is the officer executing?
             iii. If they do not match, then the power to appoint/remove is unconstitutional (see
                  Bowsher v. Synar below)
      2) The President‟s Power of Appointment
          a) Superior Officers vs. Inferior Officers
             i. US Constitution Art.II,§2,2 states that the President shall “nominate, and by and
                  with the Advice and Consent of the Senate, shall appoint Ambassadors…
                  Judges of the Supreme Court, and all other Officers of the United States…”
                  This section goes on to provide that “the Congress may by Law vest the
                  Appointment of such inferior Officers, as they think proper, in the President
                  alone, in the Courts of Law, or in the Heads of Departments.”
          b) “Principal” Officers: IN the case of “principal” officers, the President nominates a
             candidate, and the Senate must, as a constitutional matter, decide whether to
             approve the nomination.
-Drinkwine                                                                              Page 22 of 40
            i. Congress may NOT take away the President‟s power of Appointment
         c) Inferior Officers: Congress DOES have the right to limit the President‟s right of
            appointment of inferior officers. Congress cannot make such appointments itself,
            but it may give the power of appointment to: (1) the President; (2) the judiciary; or
            (3) the heads of departments.
         d) Principal v. Inferior Officers
            i. In Edmund v. United States, Scalia defined “Inferior” Officers as anyone who
                 has a superior.
                  Few, if any federal employees other than ambassadors, Cabinet Officials,
                      and federal judges are therefore “Principal” Officers.
         e) No Appointments by Congress: A key aspect of the Appointments Clause is that
            the Congress itself may not make any appointments of federal officials, whether
            “principal” or “inferior.”
            i. The most it may do is, in the case of lower-level officials, to prescribe the
                 procedures by which the executive or judicial branch shall make appointments.
                 The procedures may include fairly detailed qualifications regarding age,
                 experience etc.
            ii. Congress may make its own appointments of persons to exercise powers
                 essentially of an investigative and informative nature. Thus Congress, or one of
                 its committees, might appoint a staff to make an investigation into a particular
      3) The President‟s Right to Remove Appointees: Apart from impeachment, the
         Constitution is silent.
         a) Quasi-Legislative and Quasi-Judicial Officers
            i. Congress ma limit or completely block the President‟s right of removal
            ii. Humphrey’s Executor v. United States (1958) p. 195
                  The Court held that Congressional control over the removal of quasi-
                      legislative and quasi-judicial officials was necessary in order to preserve
                      their independence from the executive branch.
                  Therefore, the Court upheld the Federal Trade Commission Act, which
                      limited the President‟s right to remove federal trade commissioners.
         b) Purely Executive Officers
            i. Prior rule (until 1988) was that if a purely executive officer had been appointed
                 by the President, Congress may not limit the President‟s right to remove that
            ii. New rule (after Morrison v. Olson below) Congress may limit the President‟s
                 removal, even of a purely executive officer, so lon as the removal restrictions
                 are not “of such a nature that the President‟s ability to perform his constitutional
                 duty…” – Morrison v. Olson.
            iii. Morrison v. Olson (1988) p. 201
                  Olson was indicted by an independent counsel under the Ethics in
                      Government Act. Congress limited the President‟s power in removing the
                      Independent Counsel.
                  Issue: Dose limiting the Executive Branch‟s authority to only remove the
                      independent counsel on “good cause” unconstitutionally restrict the
                      Executive‟s power?
                       No. The independent counsel is constitutional.
                  “We simply do not see how the President‟s need to control the exercise of
                      that discretion is so central to the functioning of the Executive Branch as to
-Drinkwine                                                                              Page 23 of 40
                      require as a matter of constitutional law that the counsel be terminable at
                      will by the President.”
                   “[With] the exception of the over of impeachment – which applies to all
                      officers of the United States – Congress retained for itself no powers of
                      control or supervision over the independent counsel.”
      4) Removal by Congress:
         a) Congress may NOT reserve to itself the power to remove an executive officer.
             i. From Bowsher, (below), Congress may not reserve the right to remove an
                  executive officer “for cause” – at least where the definition of “cause” is fairly
                  broad (Bowsher names “inefficiency,” “neglect of duty” or “malfeasance”).
         b) Bowsher v. Synar (1986) p. 198
             i. The Gramm-Rudman Act attempted to set a “maximum deficit amount” for
                  each of the fiscal years and the Comptroller General who was empowered to
                  make automatic cuts to stay under that limit. Under much older legislation,
                  Congress reserved to itself the right to remove the Comptroller General from
                  office for five specified reasons: “permanent disability,” “inefficiency,” “
                  neglect of duty,” “malfeasance,” or “a felony or conduct involving moral
             ii. (Through a formalist analysis) the Statute was struck down: The Court struck
                  down the automatic-reduction provision of the Act because: (1) The Act uses
                  the “Comptroller‟s “executive powers”; (2) executive powers may not be vested
                  Congress in itself or its agents, because Congress is limited to legislative rather
                  than executive functions; (3) because Congress can remove the Comptroller, he
                  is an agent of Congress; therefore (4) the Comptroller may not constitutionally
                  exercise the executive powers given to him by the Act; and (5) the Act‟s
                  automatic budget reduction mechanism, which is based on the Comptroller‟s
                  exercise of his executive powers, must be invalidated.
             iii. Nature of Removal Power: The retention by Congress of the right to remove an
                  executive officer for certain specified types of cause converts that officer into an
                  agent of Congress.
             iv. White‟s Dissent (Current Functionalist Analysis)
                   The right to remove the Comptroller for specified causes did not convert
                      him to an agent of Congress.
                   “The question is whether there is a genuine threat of „encroachment or
                      aggrandizement of one branch at the expense of the other‟”
                   “Common sense indicates that the existence of the removal provisions poses
                      no such threat to the principle of separation of powers.
   F. Executive Privilege
      1) Several Presidents have invoked what they described as the doctrine of “executive
         privilege” to justify their refusal to disclose information which they claimed to be
      2) United States v. Nixon (1974) p. 208
         a) The Court recognized in general terms a constitutionally-based doctrine of
             executive privilege, but held that the privilege was only a qualified one, which was
             overcome on the facts by the needs of a pending criminal investigation.
         b) Court, not the President, Decides:
             i. The Court rejected the claim that “the separation of powers doctrine precludes
                  judicial review of a President‟s claim of privilege.”
-Drinkwine                                                                              Page 24 of 40
             ii. The Court quoted Marbury v. Madison, that it is the duty of the judicial branch
                  to “say what the law is.”
         c) Privilege Exists:
             i. There is a privilege for “confidentiality of Presidential communications in the
                  exercise of Article II powers.”
             ii. “Those who expect public dissemination of their remarks may well temper
                  candor with a concern for appearances and for their own interests to the
                  detriment of the decision-making process.” Therefore, the privilege of
                  confidentiality “can be said to derive form the supremacy of each branch within
                  its own assigned area of constitutional duties.”
         d) Privilege Only Qualified:
             i. Court rejected the President‟s claim that the privilege was absolute
             ii. Where the claim of privilege was a general one, and not related to a particular
                  need to protect” military, diplomatic, or sensitive national security secrets,” the
                  Court held that the privilege was merely a qualified one,
                   Here it was outweighed by the need to develop all relevant facts in a
                       criminal trial.
   G. Executive Immunity
      1) There is no constitutional mention of executive privilege, but the common law has
         established certain principles:
      2) Judicial Process
         a) As the result of US v. Nixon (above) there does not seem to be any general doctrine
             making the President or other members of the Executive Branch immune from the
             judicial process.
             i. In US v. Nixon, although the Supreme Court did not explicitly discuss the issue
                  of presidential amenability to judicial process, Nixon seems to stand for the
                  proposition that there is no general immunity.
      3) Civil Liability for Official Acts
         a) The President has absolute immunity from civil liability for his official acts as the
             result of Nixon v. Fizgerald (1982).
      4) No Presidential Immunity from Non-Official Acts
         a) There is not even qualified immunity for acts that the President takes that are
             completely unrelated to the carrying out of his job Clinton v. Jones (1997).
      5) Criminal Prosecution
         a) There is no executive immunity, either of common-law or constitutional nature,
             from criminal prosecution
         b) Delay: However, an argument may be made that the Constitution‟s provision of
             impeachment as the means of removing federal officers bars any criminal
             prosecution of such official until after they have been removed from office.
   H. Impeachment
      1) Art. II,§4 state the standards for impeachment: “the President, Vice President and all
         civil Officers of the United States, shall be removed from Office on Impeachment for,
         and Conviction of, treason, Bribery, or other high Crimes and Misdemeanors.”
      2) Meaning of “High Crimes and Misdemeanors”
         a) Some suggest only “serious indictable crimes” may serve as the basis for
         b) Others suggest that any “serious abuse of the powers of the Presidency” may serve
             as a basis.
         c) Majority View: Somewhere in the middle {Note: This is likely a political question}
-Drinkwine                                                                           Page 25 of 40
      3) Criminal Liability:
          a) The Constitution explicitly provides that an impeachment conviction has no
             immediate effect other that the remove the officer from office (and to disqualify
             him from holding any other federal office) – Art I,§3,7.
          b) But the clause provides that he may be indicted and tried for the crime.
          c) No Pardon Power:
             i. Art. II§2,1 giver the President the power to grant pardons “except in Cases of
      4) Reviewability by Court:
          a) It is not clear whether the Supreme Court may review the conviction – there is no
          b) The traditional view is that impeachment conviction presents a non-justiciable
             political question.
          c) The contrary view is that the Supreme Court may review an impeachment
             conviction to determine at least some issues: i.e. whether an adequate definition of
             “high Crimes and Misdemeanors” was applied.

   A. Dormant Commerce Clause
      1) Overview
         a) Issue: Does the mere fact that the Constitution gives Congress the power to
            regulate interstate commerce prevent a state from taking a particular action which
            affects interstate commerce, assuming that Congress has not actually exercised its
            power in the subject area in question (so that no Supremacy Clause questions are
            i. Focus is not on what Congress has done, but what Congress might have done.
                 Congress has constitutional power to regulate interstate commerce
                 States have police power, and ability to protect health, safety, and welfare
         b) Concurrent Regulatory Power
            i. When Congress has spoken (made a law); it preempts state law (Supremacy)
                 Express
                     If Congress has expressed its intent to regulate in a certain question then
                        there is no question that the state cannot regulate in that area as well
                 Implied
                     The Court will ask, even though Congress has not specifically made a
                        law on the exact subject at issue, will it conflict with other laws where
                        Congress has given the federal power to act?
            ii. When Congress has remained silent, (no express or implied power given to the
                federal government)
                 General Rule:
                     State / Local Government Can regulate interstate commerce
                 Exception:
                     No Economic protectionism: The concept of interstate commerce must
                        be protected.
                 Test: - following Pike v. Bruce Church (1970)
                     Does the State / Local law:
                         1) Discriminate Against Interstate Commerce?
-Drinkwine                                                                           Page 26 of 40
                            2) Local Public Interests – Is there a legitimate public interest, and
                             is the action rationally related to that interest?
                          3) Burden on Interstate Commerce –
                          4) Balance Public Interest with the Burden on Interstate Commerce
      2) Congress has spoken and the State Passed a law regulating similar activity:
         a) Gibbons v. Ogden (1824) p. 223
            i. New York granted an exclusive steamboat operating license which was
                 ultimately owned by Ogden. Gibbons obtained a federal license to operate his
                 vessel between New York and New Jersey, but was enjoined by New York
                 because of Ogden‟s exclusive license.
            ii. Holding: After giving a broad definition of “commerce”, Marshall went on to
                 hold athat the New York monopoly was invalid because it conflicted with the
                 federal commerce power.
                  Meaning of Congressional Silence:
                      Without an explicit ruling on the exact question whether interstate
                         commerce power was exclusive to the federal government, Marshall
                         assumed, without deciding, that the states could regulate commerce in a
                         particular way if there was no actual conflict between state regulation
                         and an act of Congress.
            iii. Actual Conflict:
                  Marshall found that there was an actual conflict between New York‟s action
                     and a law of Congress: the federal licensing law conflicted with the New
                     York monopoly, and the New York monopoly had to fail under the
                     Supremacy Clause.
         b) Wilson v. The Black Bird Creek Marsh Co. (1829) p. 224
            i. Delaware authorized the construction of a dam on a creek which flowed into the
                 Delaware River. Because the dam blocked navigation of the creek, the owners
                 of a federally- licensed ship broke the dam in order to pass through the creek an
                 were sued by the dam‟s owners.
            ii. Holding: Marshal found that there was no actual conflict between Delaware‟s
                 permitting the dam and any act of Congress.
                  Note: this seems to be a retraction from the view he expressed in Gibbons,
                     that congressional licensing of a vessel constituted congressional action
                     which was in conflict with the state‟s attempt to regulate its waterways)>
            iii. Marshall then found that Delaware‟s actions was not “repugnant to the power to
                 regulate commerce in its dormant state.”
            iv. Rationale:
                  “If Congress had passed any act which bore upon the case… we should feel
                     not much difficulty in saying that aa state law coming in conflict with such
                     act would be void. But Congress has passed no such act.”
                  Delaware was not acting for the purpose of regulating interstate commerce,
                     but rather was attempting to protect the health of nearby inhabitants and
                     increase the value of the property adjoining to the waterway.
            v. Non-Discriminatory: The dam was not discriminatory against interstate
                 commerce. Both vessels traveling solely in intrastate traffic, as well as those
                 engaged in interstate voyages, were equally barred from navigating the dammed
                 –up creek.
      3) No Discrimination Against Interstate Commerce is Allowed
-Drinkwine                                                                            Page 27 of 40
          a) “The Constitution was framed under the dominion of a political philosophy less
             parochial in range. It was framed upon the theory that the peoples of the several
             states must sink or swim together, and that in the long run prosperity and salvation
             are in union and not division. – Baldwin v. G.A.F. Seeling, Inc. (1935).
          b) Under the Pike v. Bruce Church standard, purposeful and facial discriminations
             against interstate commerce are virtually per se illegal, whereas “incidental”
             restrictions trigger judicial balancing.
      4) Legitimate State interests:
          a) Health, Safety, Welfare of the state‟s citizens
          b) Baldwin v. G.A.F Seeling (1935) p. 233
             i. Discriminate against Interstate Commerce?
                   Yes. Sets barriers to trade
             ii. Local Public Interest?
                   The court does not buy the impure milk argument and concludes that the
                      only reason the law is instated is to protect local industry.
             iii. Balancing Local Interest with Burden
                   Balancing was not done in this case.
      5) Balancing State Interests with impacts on Interstate Commerce
          a) Dean Milk Co. v. Madison (1951) p. 235
             i. The city of Madison, Wisconsin made it unlawful to sell any milk that had not
                  been processed and bottled within 5 miles of the city. The city claimed that the
                  measure was not intended to discriminate against out-of-state milk producers,
                  but was rather designed to permit inspection of pasteurization quality control so
                  as to guard against adulterated milk. The regulation was attacked by an Illinois
                  corporation which distributed milk in both states.
             ii. The Court conceded that the regulation might have been motivated by a bona
                  fide safety and health concerns. BUT the regulation nonetheless discriminated
                  against interstate commerce (it had a discriminatory effect). Nor did the fact
                  that the Wisconsin companies 5 miles away from the city were also
                  discriminated against save the local regulation.
             iii. There were reasonable non-discriminatory alternatives, which would have
                  protected the local interest in unadulterated milk, and could have been
                  implemented – Sent inspectors to out-of-state plants, passing the cost onto
                  producers, etc.
                   Note: If there is discrimination and there is a legitimate public interest, look
                      for alternatives to accomplish the same goal in a less burdensome way.
                       Here there is very little burden to send inspectors to out-of-state plants
                          and check their milk, then pass the cost on to the producers.
          b) Minnesota v. Clover Leaf Creamery Co. (1981) p. 255
             i. The Supreme Court upheld a state law which banned non-returnable milk
                  containers made of plastic (but permitted non-returnable milk containers made
                  of other substances, principally cardboard cartons.
             ii. Discriminatory?
                   No. It even-handedly prohibits all milk retailers from both in-state and out-
             iii. Legitimate Public Interest?
                   Yes
             iv. Burden Balancing
                   There is no burden on out-of-state paper manufacturers
-Drinkwine                                                                                                              Page 28 of 40
                      There is a burden on out of state plastic, that is non-returnable
                        They can make returnable plastic pouches
                        Thus, there is not that much of a burden on he plastic industry.
                 v. Alternatives?
                     Does not really discuss whether there are better alternatives for achieving
                       the same goal.
                                                  Has Congress Spoken
                                                      on the Issue?

     Dormant NO                                                                 YES
    Commerce                                                                            Express:
                                                                                                                      Congress has
      Clause                                                                          Congress Has
                                                                                      Passed a Law
                                                                                                                      Passed other
                                  General Rule:
                                  State / Local
                                                             Congress has
                                    Regulate                                                           Will it Conflict with other laws?
                                                            acted and thus
                                                                                                       Has Congress has given Power
                                                            has Supremacy
                                                                                                        to the Federal Government to
                                                              over state
                                                                                                                affect the issue?

                                                                                          YES                             NO
                                                                        State / Local                            State / Local
                                                                        Government                               Government
                                                                         CANNOT                                      CAN
                                                                          Regulate                                 Regulate

                                                      Here, the BURDEN               Here, the
 Does the State / Local Law                               shifts to the        BURDEN remains
        Discriminate?                                government to prove          with the party
(Are the out-of-state burdens        YES               regulation is NOT       trying to prove the             NO
                                                       merely economic             regulation is
more than in-state burdens?)                             protectionism           unconstitutional

    Is there a State / Local
        Public Interest?
        “Legitimate” v.
                                      NO                    YES                                      NO                   YES
   “Economic Protectionist”

      Is there a Burden on
     Interstate Commerce?
       (Is there a negative         YES                   YES                                  YES                       YES
    Balance the State / Local
                                                        Pike v. Church                                                  Pike v. Church
     Public Interest with the                         Balance: Burden v.                                              Balance: Burden v.
      Burden on Interstate                             Public Interest +                                               Public Interest +
                                                      Consider Possible                                               Consider Possible
    Commerce AND Account
                                                         Alternatives                                                    Alternatives
      for any Alternatives

                                Virtually                                                  Virtually
                                                    Constitutional or                                               Constitutional or
                                 per se             Unconstitutional
                                                                                            per se                  Unconstitutional
                                 Illegal                                                    Illegal

                           Baldwin (233)
                                                                                  C&A Carbone v.                    Clover Leaf (255)
                          H.P. Hood (247)         Dean Milk (235)
            Cases                                                                 Clarkstown (257)                  West Lynn (242)
                          PA v. NJ (251)
-Drinkwine                                                                            Page 29 of 40

   B. Interstate Privileges and Immunities
      1) Overview
         a) As with Dormant Commerce Clause, Privileges and Immunities are intended to
             prevent state discrimination against out-of-state individuals
         b) ONLY applies to INDIVIDUAL CITIZENS – Don‟t use for corporations or aliens.
         c) While it states “citizens”, in actuality it refers to residents
      2) Source
         a) Privileges and Immunities Appears twice in the Constitution
             i. Art.IV,§2,1 “Citizens of each State shall be entitled to all the Privileges and
                 Immunities of Citizens in several States”
             ii. 14th Amendment:
                  No Longer used because of a case.
      3) Test: Even where out-of-staters are discriminated against, it is relatively hard for the
         out-of-staters to establish a violation of the Privileges and Immunities Clause.
         a) Only “fundamental rights” covered: Only rights that are fundamental to national
             unity are covered. The rights that meet this standard are all related to commerce
             i. The right to be employed, the right to practice one‟s profession, and the right to
                 engage in business are all fundamental and therefore protected.
             ii. Non-economic rights are generally NOT fundamental to national unity, and thus
                 not protected by the Privileges and Immunities Clause.
                  The right to engage in recreational activities is NOT protected.
                  Baldwin v. Montana Fish and Game Comm’n (1978)
                      Montana allows Montana residents to purchase a license for hunting elk
                         and other animals for $30, while non-residents are charged $225
                      Holding: This scheme does not violate the Privileges and Immunities
                         Clause because the right to recreation is not a right that is fundamental to
                         a national unity.
         b) Two Part Test: Once it is determined that a fundamental right is at issue, the Court
             will apply a two-part test. The π, who is attacking the discrimination will win if
             EITHER of the following is shown.
             i. “Peculiar Source of Evil”
                  The Discrimination will violate the Privileges and Immunities Clause unless
                     non-residents are a “peculiar source of the evil” which the law was enacted
                     to remedy.
                  Alaska Hire Case
                      Alaska argued that its employment preference for residents was a
                         reasonable response to high unemployment rates.
                      The Court held that the state did not show that the non-residents were a
                         “peculiar source of the evil” (unemployment), because much of the
                         unemployment came from the fact that too many residents were
                         untrained or lived too far from job opportunities, and the influx of out-
                         of-staters seeking jobs was just a small part of the problem.
             ii. “Substantial Relationship Test”
                  The π will win if the discrimination against non-residents does not bear a
                     substantial relationship to the problem the statute is attempting to solve.
                  In the Alaska Hire Case, this prong was not satisfied either – a blanket and
                     absolute preference for all qualified residents over all non-residents was not
                     sufficiently “closely tailored” to the unemployment problem.
-Drinkwine                                                                             Page 30 of 40
                    If there is a less discriminatory alternative that would solve the problem, the
                     requisite “substantial relationship” between the discrimination against out-
                     of-staters and the problem will not be found to exist.
             iii. No Market participant exception for the State:
                   Unlike the Commerce Clause, where the state is not subject to the
                     Commerce Clause‟s prohibition on discrimination against interstate
                     commerce when the state is acting as a “market participant,” the Court has
                     held that there is no “market participant” exception to the Privileges and
                     Immunities Clause.
                   United Building and Construction Trades Council v. Mayor of Camden
                     (1984) p. 276
                      A New Jersey ordinance which required that at least 40% of the work
                          force on any construction project funded by the city must reside in the
                      Holding: The rationale for a “market participant” exemption in the
                          privileges and immunities context was not as strong as in the Commerce
                          Clause context
                           The Commerce Clause deals only with regulation, and a state acting
                              as a “market participant” is simply not regulating
                           But the Privileges and Immunities Clause bars ANY type of state
                              conduct, regulatory or otherwise, which discriminates against out-of-
                              staters on matters of fundamental concern.
                      Discrimination based on municipal residence is barred just as such
                          discrimination based on state residence.
                           While in-staters have a remedy at the poles, out-of staters have no
                              such remedy
                      Ban against out-of-staters is NOT absolute.
                           All that there requires is that there be a tight fit between the
                              particular discrimination used and a significant evil that the state is
                               Here, Camden claimed that it was attempting to reverse wide-
                                  spread local unemployment and “middle-class flight.”
                               The Court remanded for a consideration of whether this was an
                                  appropriate purpose and whether the particular discriminatory
                                  measure chosen was sufficiently closely linked to attainment of
                                  that objective.
   C. Protection of Economic Interests – Substantive Due Process: Liberty of Contract
      1) “The „liberty‟ mentioned in [the 14th amendment]… means not only one‟s right to be
         free of physical restraint in his person, but „embraces the right of the citizen to be free
         in the enjoyment of all his faculties, to be free to use them in all lawful ways; to live
         and work where he will; [to] pursuer any livelihood or avocation; and for that purpose
         to enter into all contracts which may be proper, necessary, and essential to his carrying
         out to a successful conclusion the purpose above mentioned.‟” – Allegeyer v. Lousisana
         (1897) p. 304
      2) Lochner v. New York (1905) p. 305 – Note: Don’t Cite Lochner
         a) The test in Lochner is still valid; however, the “freedom to contract” economic
             theory referred to in Lochner has been abandoned.
         b) A New York law limited the hours which a bakery employee could work to 10 per
             day and 60 per week.
-Drinkwine                                                                             Page 31 of 40
          c) Two defenses of the statute:
             i. 1- It was a valid Labor Law
             ii. 2- Protected health and safety of the workers
          d) TEST: Is this a fair, reasonable, and appropriate exercise of the police power of the
             state, or is it an unreasonable, unnecessary
          e) Not Valid Labor Law:
             i. The police power only extended to the protection of “public welfare”
             ii. The readjustment of bargaining power between bakery employees and their
                  employers, the Court implied, was not of sufficiently public (as opposed to
                  private) concern, especially in the view of the law‟s infringement of the liberty
                   The Court suggested that if the bakers were not as intelligent as other
                      workers, or for some reason needed unusual protection, the statute might be
                      valid as a labor law, the court found no reason this class needed special
          f) Not Safety or Health Measure:
             i. The Court did not find the bakers to be an especially endangered group (as it
                  had hound miners to be in a case earlier).
             ii. Long working did NOT affect the public health and safety of the public by
                  making the bread less fit to eat.
             iii. In guarding the wholesomeness of the baked goods, the state could have used
                  alternative measures that interfered less with the freedom of contract –
                  inspecting premises, requiring washrooms be furnished etc.
      3) Nebia v. New York (1934) p. 313
          a) New York established a Milk Control Board with the power to fix maximum and
             minimum retail prices. The Board fixed nin cents as the price that could be charged
             in the store and Nebia was convicted of selling milk below the minimum price.
          b) “Upon proper occasion and by appropriate measures the state may regulate a
             business in any of its aspects, including the prices to be charged for the products or
             commodities it sells.”
          c) “The guaranty of due process demands only that the law shall not be unreasonable,
             arbitrary, or capricious, and that the means selected shall have a real and substantial
             relation to the object sought to be attained.”
             i. The Milk Board‟s acts were not arbitrary, or capricious and were in relation to
                  prevent ruthless competition from destroying the wholesale price structure on
                  which the farmer depends on his livelihood, and the community for an assured
                  supply of milk.
      4) United States v. Carolene Products (1938) p. 316 – Footnote 4
          a) “Economic regulatory legislation… [is] entitled to a presumption of
             constitutionality and should be upheld if supported by any rational basis.”
             i. “There may be a narrower scope for operation of the presumption of
                  constitutionality when legislation appears on its face to be within a specific
                  prohibition of the constitution [regarding personal rights].”
   D. Protection of Economic Interests – Contract Clause
      1) Overview
          a) Source: Art. I,§10 prohibits the state from enacting any “Law impairing the
             Obligation of Contracts.”
          b) Applies only to State and Local Government (Federal is Constitutionally not
-Drinkwine                                                                             Page 32 of 40
          c) Difference between the Contract Clause and Substantive Due Process:
             i. Substantive Due Process is implied
             ii. Contract Clause is explicit.
          d) Purpose:
             i. Contract Clause was enacted principally for the purpose of protecting creditors
                 against debtor relief laws. Such protection of creditors was thought to be
                 necessary for the economic development of the country
             ii. Quickly extended to include the prevention of the impairment of “public”
                 contracts(contracts between the government and private parties).
      2) Exceptions to the Contract Clause
          a) Protection of the Public Interest
             i. Home Building & Loan Association v. Blaisdell (1934) p. 354
                  A Minnesota statute, enacted at the height of the Depression, allowed local
                     courts to give relief from mortgage foreclosure sales. The courts were
                     permitted to give extensions from such sales, provided that the mortgagor
                     paid “all or a reasonable part” of the property‟s fair income or rental value.
                     The measure was intended to apply to mortgages issued prior to the date of
                     the law; i.e. the statute was retroactive.
                  Holding: The Supreme Court upheld the statute on the theory that the state
                     had at least the right to temporarily delay enforcement of a mortgage‟s
                     literal terms, where “vital public interests” would otherwise suffer. In view
                     of the enormous economic emergency (the depression) which gave rise to
                     the statute, the modification was a limited and reasonable one. The court
                     stressed that the principal remained due, interest continued to run, the right
                     of foreclosure would ultimately be restored, and the statute (the Court
                     assumed) would be rescinded once the economic emergency was over.
      3) Test: “Blaisdell Factors” (see above) where issues do not violate the Contract Clause
          a) 1) There should be an “emergency need” – Ends
          b) 2) Action should be intended “to protect the vital interests of the community”
             (Think of Health, Safety, Welfare) – Ends
          c) 3) The law should be “appropriately tailored to the emergency” – Means
             i. Note: Minnesota statute also was not designed to favor any one group over
          d) 4) The specified conditions imposed should be “reasonable” – Means
          e) 5) The legislation should be “temporary”
   E. Protection of Economic Interests – Takings
      1) Overview
          a) Source:
             i. 5th Amendment: “private property [shall not] be taken for public use, without
                 just compensation.”
             ii. While the same clause does not appear in the 14th Amendment, case law has
                 read that it also applies to state / local government
          b) Two Constitutional Law Issues of Importance
             i. What is the borderline between a “taking” (for which compensation must be
                 paid) and a mere “regulation” (for which no compensation is due)?
             ii. When is a taking made for “private” rather than “public” use, so that there is no
                 right of eminent domain, even if compensation is paid?
      2) Taking / Regulation Distinction
          a) Overview of the Issue
-Drinkwine                                                                           Page 33 of 40
            i. If the court finds that private property has been “taken” by the government,
                compensation must be paid. If there state merely “regulates” property use in a
                manner consistent with the state‟s police power, then no compensation needs to
                be paid even though the owner‟s use of the property, or even its value, has been
                substantially diminished.
            ii. Most of the cases deal with land use regulations; these include zoning
                regulations, environmental protection rules, landmark preservation schemes,
                and other schemes by which the government does not attempt to take title to a
                landowner‟s property but does regulate his use of that property.
         b) TESTS: 2 Competing Tests
            i. The 2-Part Balancing Test (Penn Coal, Keystone, Penn Central) (Currently
                used today)
                 1) Character of the Governmental Regulation
                     Is it important to the public interest?
                     Are there widespread benefits?
                     Does it prevent a nuisance?
                 2) Economic Harm to Property Owner
                     (a) Type of Harm:
                         (1) Exclusive Right of Possession (Most Important)
                         (2) Right to Transfer (????can‟t sell but can transfer through will is
                            not a taking ????).
                         (3) Right to use (Interference with present use is not a taking).
                     (b) Defeat Investment-Backed Expectations
                         If there is “any economical viable use” then there is no taking.
                         If there is a “reasonable return on the investment” then there is no
                 3) Standard of Review
                     Rational Review Only
                     Maximum Deference to the Government
            ii. The Two-Part Per Se Test (Nollan, Lucas, Dolan) (Not used so much today)
                 1) Regulation “does not substantially advance legitimate government
                     Are there inappropriate ends / means – Similar to Lochner Substantive
                        Due Process Test)
                 2) Regulation “denies economic viable use of land”
                     “Total Taking”
                     EXCEPTION – if the right / use was not a part of the title to begin with
                        (e.g. nuisance).
                     EXCEPTION – If it is just personal property / money
                         Taking may be more easily justified
                 3) Standard of Review
                     Intermediate Scrutiny
                         Ends sought must be “important”
                         Means must be “substantially related” to achieving the ends sought.
         c) Physical Use
            i. If the government makes or authorizes a permanent physical occupation of the
                property, this will automatically be found to constitute a taking, no matter how
-Drinkwine                                                                            Page 34 of 40
                minor the interference with the owner‟s use and no matter how important the
                countervailing government interests
            ii. Loretto v. Teleprompter Manhattan CATV Corp. (1982)
                 The court formulated this “per se” rule, and applied it to invalidate a statute
                     which required landlords to permit cable television companies to install their
                     cable facilities on the landlord‟s rental property.
                      The scheme permitted the landlords to charge the cable companies what
                          was in most instances a maximum one-time fee of $1.00.
         d) Diminution in Value
            i. The more drastic the reduction in value of the owner‟s property, the more likely
                a taking is to be found
         e) Denial of All Economically Viable Use of Land
            i. The Court has imposed a flat rule that a taking occurs where an owner has been
                deprived of “all economically viable use” of his land.
         f) Temporary Moratorium on Development
            i. The government does not necessarily have to pay just compensation where a
                planning board institutes a moratorium on the development of a certain
            ii. The court will consider all the surrounding circumstances to determine whether
                the delay of all economically viable use was so severe as to require that
                compensation be paid – See Tahoe-Sierra Preservation Council v. Tahoe
                Regional Planning Agency (2002).
         g) “Prevention of Harm” or “Noxious Use” Rationale
            i. A regulation, rather than a taking, is likely to be found where the property use
                being prevented is one that is “harmful” or “noxious” to others.
                 Zoning ordinances which properly prevent the operation of a steel mill in
                     the middle of a residential neighborhood.
                 In general, anything which the common law would recognize as a public or
                     private nuisance may be barred by regulation without the need for
         h) Zoning Regulation
            i. In cases where zoning regulations impair an owner‟s use of his property, the
                Court has been especially reluctant to find a compensable taking. A zoning
                ordinance will not be stricken as violative of due process unless it is “clearly
                arbitrary and unreasonable,” having no substantial relation to the public health,
                safety, morals, or general welfare. – Moore v. East Cleveland (1977).
         i) Other Environmental Regulation
            i. Regulations designed to protect the environment are usually similarly subjected
                to only mild review, even if the property owner‟s ability to use his land is
                substantially circumscribed.
         j) Landmark Preservation
            i. Landmark Preservation schemes, like zoning and environmental regulations,
                will seldom constitute a taking.
            ii. If it is carried out as part of a comprehensive preservation scheme, development
                of individual landmarks may be curtailed without affecting a taking. – Penn
                Central Transportation Co. v. New York City (1978).
      3) Requirement of “Public” Use
         a) Overview of the Issue:
-Drinkwine                                                                             Page 35 of 40
               i. The government cannot simply take private property from one person, and give
                   it to another, without any public purpose.
            b) “Public Use” Construed Broadly
               i. So long as the state‟s use of its eminent domain power is “rationally related to a
                   conceivable public purpose” the public use requirement is satisfied – Hawaii
                   Housing Authority v. Midkiff (1984).
               ii. The property “need not be open to the general public after the taking.” – Kelo v.
                   New London (2005)

     A. Introduction

     A. Rights of Privacy – Autonomy – Personhood
     B. Abortion Rights
        1) Current Test (from Casey)
           a) Is the fetus viable? (Can it live outside the woman?)
               i. If the fetus is not viable, then the legislature can only regulate abortions as long
                   as it does not put an undue burden on the mother.
               ii. If the fetus is viable, the legislature may regulate as long as there is a medical
                   emergency exception.
        2) Roe v Wade.(1973) pg 393
           a) Summary:
               i. 9-0 – There is no absolute right to an abortion
               ii. 9-0 – There is no absolute rights to the fetus.
           -Drinkwine                                                                                               Page 36 of 40
                                                        (Roe v. Wade cont.)
     Issues             Blackmun                   Stewart         Douglas                         White                 Rehnquist
Ruling Below =     Unconstitutional           Unconstitutional        Unconstitutional      Unconstitutional         Unconstitutional
S/L Const?
“Good” Law?        Not Good Law               Not Good Law            Not Good Law          Up to the Legislature
Is there a         Yes – 394-395              Yes - Privacy – the     Yes – 398             No fundamental           No Fundamental
“fundamental       Privacy – there is a       right to be free from   Freedom of choice     rights – 399             Right – the claimed
right” for the     “liberty” in               unwarranted             in basic decisions    The right to privacy     right in this case is
woman?             reproductive rights        governmental            of one‟s life, Care   is not in the            NOT a fundamental
                                              interference into       for health            constitution and the     right even though the
What is it?
                                              matters so                                    court is creating a      right to privacy
                                              fundamentally                                 new constitutional       exists. So, must use
                                              affecting the person                          right                    the rational relation
                                              as to bear or beget a                                                  test – 399 (gives
                                              child - 397                                                            deference to leg.)
Constitutional     14th Amend - 394           14th Amend – 397 –      14th – 398                                     Bill of rights include
Source                                        Note: in Griswold,                                                     implicit rights but can
                                              Stewart did not                                                        be taken away with
                                              recognize Subst.                                                       due process
                                              Due process in 14th
Is it absolute?    No -395 government                                 No -398 – The
                   can regulate in                                    Woman‟s right is
                   safeguarding health,                               one of many
                   maintaining medical                                including society‟s
                   standards, protecting                              right and right of
                   potential life                                     unborn. - 398
Is there a         Fetus is not a person                              No. the right of
“fundamental       and is not recognized                              the fetus is one of
right” for the     by the 14th Amend –                                many including the
fetus?             395… but state has                                 mother‟s right and
                   an interests in                                    the right of
                   protecting the right of                            society. -398
                   potential life. - 395
ENDS:              1) Protect prenatal        Protection of Health    Protection of H&S
Government’s       life; 2) Health of the     & Safety of woman       of Mom and
Interests?         mother- 394                and embryo              embryo
MEANS: Does        Embryo is not life but     Means are overly        Overbroad only
this law achieve   “potentiality” of life -   broad and are too       considers the
those ends?        395                        intrusive into          fetus‟ safety not
                                              individual liberty      the mom‟s
Balancing Tests    - 396                                                                                             By breaking the
Depending on       1st – State cannot interfere                                                                      terms of pregnancy
the Fetus’         with woman‟s right at all.                                                                        into three distinct
Development:       (medical reason – risk to mom                                                                     terms partakes more
                   from abortion v. bearing child                                                                    of judicial legislation
  1st Trimester   significantly less.)                                                                              than in weighing the
  2nd Trimester   2nd – State may regulate                                                                          intent of the drafters
  3rd Trimester   abortions to the extent it                                                                        of the 14th Amend.
                   reasonably relates to the
                   preservation and protection of
                   woman. (medical reason – risk
                   of harm to woman through an
                   abortion is higher than going
                   through birth)
                   3rd – States can regulate unless
                   health of the mother at issue.
                   (medical reason – viability)
          -Drinkwine                                                                                                          Page 37 of 40

                  3) Planned Parenthood v. Casey
                     a) Summary:
                        i. Rejects the Roe v. Wade trimester framework while maintaining its “essential
                        ii. TEST:
                              Pre-viability: Undue Burden analysis where the state regulation cannot have
                                the effect or purpose to placing a substantial obstacle in the path of a woman
                                seeking an abortion of a non-viable fetus. The means chosen by the state
                                must be calculated to inform the woman‟s free choice, not hinder it.
                              Post-viability: The state may regulate in anyway it wishes (even banning
                                abortion altogether) to promote the interests of the fetus EXCEPT where it
                                is necessary for the preservation of the life or health of the mother.
                        iii. Summary: Were the following provisions in the PA statute constitutional?
                              Medical Emergency Exception – Constitutional 9-0
                              Informed Consent
                                 Doctor Counseling – Constitutional 8-1
                                 General Counseling – Constitutional 7-2
                                 24-Hour Waiting Period – Constitutional
                              Spousal Notification – Unconstitutional 5-4
                              Parental Consent – Constitutional – 8-1
                              Record Keeping and Reporting – Constitutional 8-1
     Issues           O’Connor,             Stevens           Blackmun            Rehnquist,              Scalia,
                    Kennedy, Souter                                              White, Scalia,     Rehnquist, White,
                                                                                    Thomas               Thomas
Keep Roe?          Yes. -423 Keep the        Yes. Keep more than       Yes. Keep more            439 - Roe was wrongly         No right to abortion; the
                   essential holding – now   just the essential        than just the essential   decided and should be         Roe trimester approach
                   two tests where           holding and keep the      holding and keep the      overruled: in its place,      is arbitrary and not in
                   viability is the          Roe v. Wade               Roe v. Wade               the rational relationship     the constitution or
                   determinate, not the      trimester approach        trimester approach        test from the plurality in    history and traditions.
                   trimester development                                                         Webster should be used        The new viability test is
                                                                                                                               also arbitrary.
Substantive Due    Due Process Clause –      Due Process Clause –      438 - Subst. Due          Reject Substantive due        Reject Substantive due
Process / 14th     423 “The controlling      this is a basic liberty   Process: restrictive      process to be applied in      process to be applied in
                   word is „liberty‟” –                                abortion laws             the abortion area             the abortion area – No
Amend              includes a substantive                              deprive a woman of                                      Historical traditions, no
Applicable?        component as well                                   basic control over                                      constitutional reference.
                                                                       her life                                                - 442
Stare Decisis      Stare Decisis - 425       435 – Stare Decisis                                 The decision contradicts      443 – Stare decisis is
                   Must make it to keep      has a controlling                                   the importance of stare       not a “keep-what-you-
                   Blakmun                   significance in this                                decisis, by rejecting         want-and-throw-away-
                                             case                                                Roe’s fundamental             the-rest” doctrine. The
                                                                                                 right to an abortion          arbitrary trimester test
                                                                                                                               is essential to Roe
Trimester          Throw out the trimester   Keep the trimester        Keep the trimester
Approach           approach                  approach                  approach
New Test?          Pre-viability – 430       435 – Agree with the                                441 – Disagree with           443 – no way to discern
                   woman‟s right is very     “implicit analysis” in                              new test – “Because the       the “undue burden”.
                   near absolute, UNDUE      pre-viability that                                  undue burden stand. is
                   BURDEN                    health of the mother                                plucked from nowhere,
                   (state can‟t place a      must take precedence                                the question of what is a
                   substantial obstacle)     over duty to unborn.                                „substantial obstacle‟
                   Post-viability the        Agrees with post-                                   will undoubtedly
                   government can reg.       viab. also.                                         engender conflicting
           -Drinkwine                                                                                                             Page 38 of 40
                                                    (Planned Parenthood v. Casey cont..)
Standard of        Substantial obstacle to      437 – Stevens agrees
Review             abortion is not a            with this part of the
                   permissible means to         court‟s decision
                   serve the govt.‟s
                   legitimate interests in
                   the H & S of woman
                   and fetus.. - 430
Apply to PA.       431 – There must be an       435 – Agree there             437 – Blackmun            This provision should
Act:               emergency medical            must be a medical             agrees with this part     be upheld (Squid does
                   exception: Regulation        emergency exception           of the court‟s            not discuss)
 Med.             can‟t pose a significant                                   decision
     Emer..        threat to the life or
     Excep.        health of the woman
 Informed         Not an undue burden          436- From earlier             438 – This is an          This provision should
                   because there was no         cases, Stevens states it      UNDUE BURDEN              be upheld (Squid does
     Consent       evidence saying it was -     is okay to require a          Requiring that the        not discuss)
     (Physician    432                          doctor to inform of           info be given is
     Must give                                  medical risks during          okay, but requiring
     info.)                                     the abortion                  that the MD give it is
   Informed       Not an undue burden -        436 – This is an UNDUE
                                                BURDEN b/c it is
                                                                              This is an UNDUE          This provision should
                   431                                                        BURDEN                    be upheld (Squid does
    Consent                                     designed to persuade the                                not discuss)
    (general                                    woman against having
                                                an abortion. “Decisional
    consult)                                    autonomy must limit the
                                                State‟s power to inject
                                                into a woman‟s most
                                                personal deliberations.”
   24 Hour        432 – Not an undue           436 - UNDUE                   438 - UNDUE               This provision should
                   burden even though it        BURDEN – there is             BURDEN People,            be upheld (Squid does
    Waiting        may be “particularly         no evidence that the          especially in rural       not discuss)
    Period after   burdensome” to those         delay benefits the            areas, have to spend
    Counsel        with few financial           woman or enables              more money to
                   resources, must explain      conveyance of info.           return the next day
                   there whereabouts to         Thus, the burden is           and all might have
                   husbands/parents             “undue” not because           difficulty explaining
                                                too severe, but it            there whereabouts.
                                                “lacks a legitimate,
                                                rational justification.”
Spousal Consent    433 - This clause is         437 – UNDUE                   437 – UNDUE               441 - Under the
– Father’s         likely to present a          BURDEN Stevens                BURDEN Blackmun           incorrect “undue burden
                   significant number of        agrees with this part         agrees with this part     standard” there is no
Interest           battered women with an       of the court‟s decision       of the court‟s            difference between
                   UNDUE BURDEN It                                            decision                  parental consent and
                   is a substantial obstacle,                                                           spousal intent.
                   not merely a little more
                   expensive or difficult to
Parental           434 – Parental Consent       Judicial By-pass is           UNDUE BURDEN              441 - Under the
Consent            requirement is not an        available – if there is       if there is an abusive    incorrect “undue burden
                   undue burden as long as      a concern, the judge          family relationship,      standard” there is no
                   there is a judicial          can make the decision         need to be concerned      difference between
                   bypass procedure.            in place of the parents                                 parental consent and
                                                                                                        spousal intent.
Recordkeeping /    434 – Recordkeeping          437 – Stevens              438 - UNDUE BURDEN           This provision should
                   itself does not pose an      agrees with this           there is no link in the      be upheld (Squid does
Reporting                                                                  stated PA interest in
                   undue burden as long as      part of the court‟s                                     not discuss)
                                                                           informing taxpayers how
                   patient‟s confidentiality    decision
                                                                           money is spent and the
                   is preserved. They are                                  protection of the woman‟s
                   related to health                                       health. This is clearly an
                                                                           attempt to intimidate the
                                                                           clinics and doctors who
-Drinkwine                                                                         Page 39 of 40
   C. Sexuality Rights

   A. Traditional Rationality Standard of Review
   B. Strict Scrutiny: “Suspect Classes”
      1) Racial and Ethnic Discrimination
      2) Affirmative Action (or Reverse Discrimination)
      3) Gender Discrimination
   C. Strict Scrutiny for “Fundamental Rights”

   A. Issues
      1) Advocacy of Illegal Action
          a) Brandenberg Case (1969)
             i. Government cannot forbid advocacy expression unless it is
                  1. Directed to producing; and
                  2. Eminent; and
                  3. Likely to Succeed
      2) Fighting Words (“Hostile Audience”)
          a) Highly protected in the generalized context
             i. Government is to keep the audience from hurting the speaker
          b) In One-on-One Context less protection
             i. If the individual incites another individual, then not as much protection.
      3) Offensive Speech
          a) Cohen “Fuck the Draft Case” (1971) –
             i. Jacket stating “Fuck the Draft” is protected –
             ii. saying this school system is mother fucking pathetic
      4) Hate Speech
          a) Most anti-hate speech codes (in schools etc.) have been overturned
          b) Virginia v. Black – latest cross burning case
             i. Local law that was upheld made it illegal to burn a cross in public with the
                 intent of intimidating an individual or group. (the added mens rea requirement
                 made it legal)
          c) Currently there is no working test.
      5) Defamation
          a) “Dignitary tort”
          b) There is a dollar value to reputation.
          c) NY Times v. Sullivan (1964)
             i. Defamation directed at a public official
             ii. NY Times Rule: Must prove “actual malice”
                  Show it was a knowing falsehood; OR
                  Reckless Disregard of the Truth
      6) Obscenity
          a) Moore v. California
-Drinkwine                                                                          Page 40 of 40
            i. Obscenity is what the average person, applying contemporary community
                standards, finds patently obscene in a sexual fashion applied to the work as a
                whole. – approximate
      7) Symbolic Speech – “Speech Plus”
         a) Heightened Scrutiny
      8) Forum Types
         a) Public Sidewalks, Public Streets, Public Parks
            i. These are easy
         b) DIA
            i. Free speech protection gets watered down
         c) Private Property – Shopping Malls
            i. Watered down even farther.

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