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Constitutional Law I OutlineFall 2010 Prof. Want

I. GENERAL PRINCIPLES:A. The Constitution

*What does the Constitution do?o (1) Separation of powers

The Constitution establishes a national government and allocates power among the branches of

that government Article I Congress Article II Executive Article III Judiciary

Each branch has its own enumerated powers, and one branch may not take actions reserved by theConstitution to one of the other branches

o (2) Federalism dual sovereignty; the federal and state governments co-exist

The Constitution controls the relationship between the state and federal governments Why have two levels of government?

A belief among the founders that federal government was an evil, but a necessary evil At the same time, states were closer to the people and, therefore, more trustworthy Dual intentions of strengthening the federal government w/o limiting the states

Limited, enumerated powers: the powers of the federal government are limited to thosethat are enumerate in the Constitution

The most important power given to Congress is the power to regulate commerceo (3) Libertarianism (individual rights)

The Constitution limits the power of the government by promoting individual rights (1st 10Amendments; 13-15 Amendments)

Articles of Confederation (Oyster War example)

o Oyster War demonstrated the weaknesses of the union without a centralized government

o States were left to decide laws between themselves

1. Standards of Review: when a court review the constitutionality of government action, it is likely to bechoosing from among the 3 standards of review:

a. Rational Basis: (easiest standard) The court will uphold the government action as long as 2 requirementsare met:

i. Legitimate State Objective: government must be pursuing a legitimate governmentalobjective

1) This is a broad concept includes practically any type of health, safety or general welfaregoal

ii. Rational Relation: there must be a minimally rational relation b/w the means chosen bythe government and the state objective

1) Only if government is has acted in a completely arbitrary and irrational way will thisrational link b/w means and end not be found

iii. Burden of Proof the individual who is attacking the government action will generally bearthe burden of persuading the court that the action is unconstitutional

iv. Effect on Outcome government action will almost always be upheldv. When used

1) Dormant Commerce Clause: the mere rationality test is the main test to determinewhether a state regulation that affects interstate commerce violates the Dormant CommerceClause

a) The state regulation has to pursue a legitimate state end, and be rationally related tothat end

b) The states interest in enforcing its regulation must also outweigh any burden imposedon interstate commerce, and any discrimination against interstate commerce


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2) Substantive Due Process: So long as no fundamental right is affected, the test fordetermining whether a governmental act violates substantive due process is mere rationality

a) If the state is pursuing a legitimate objective, and using means that are rationallyrelated to that objective, the state will not be found to have violated the substantiveDue Process Clause

b) So the vast bulk ofeconomic regulations (since dont affect fundamental rights)will be tested but the mere rationality standard and almost certainly upheld

3) Equal Protection: mere rationality is used so long as

a) no suspect or quasi-suspect classification is being used; andb) no fundamental right is being impairedc) This still leaves a large number of classification that will be judged on this standard

including:i) almost all economic regulationsii) some classifications based on alienageiii) rights that are not fundamental even though they are very important, such

as food, housing, and free public education4) Contracts Clause: we find mere rationality review in some aspects of the obligations

of contracts clauseb. Strict Scrutiny: (hardest standard) The court will uphold the government action only if it satisfies 2 toughrequirements:

i. Compelling Objective: the objective being pursued by the government must be compelling(not just legitimate)

ii.Necessary Means: the means chosen by the government must be necessary to achieve thatcompelling end the fit b/w the means and the end must be extremely tight (not enough that theres arational relation)

1) No less restrictive alternatives: there must not be any less restrictive means that wouldaccomplish the governments objective just as well

iii. Burden of Proof the governmental body whose act is being attacked has the burden ofpersuading the court that its action is constitutional

iv. Effect on Outcome government action will almost always be struck down as unconstitutionalv. When used

1) Substantive Due Process/Fundamental Rights: where a governmental action affects

fundamental rights, and the P claims that his substantive due process rights arebeing violated, the court will use strict scrutiny

a) So when the state impairs rights falling in the privacy cluster of marriage, child-bearing, and child-rearing, the court will apply this standard and therefore probablyinvalidate the government restriction (for example, government restrictions that impairthe right to use contraceptives)

2) Equal Protection Review: the court uses strict scrutiny to review a claim that aclassification violates Ps equal protection rights, if the classification relates either to asuspect classification or a fundamental right

a) Suspect classifications include race, national origin, and (sometimes) alienageb) Fundamental rights for this purpose include the right to vote, to be a candidate,

to have access to the courts, and to travel interstate

3) Freedom of Expression: If government is impairing free expression in a content-based way, then the court will use strict scrutiny and will almost certainly strike down theregulation

a) If government is restricting some speech and not other, based on the content of themessages, then this suppression of expression will only be allowed if necessary toachieve a compelling purpose a standard that is rare found to be satisfied in the 1stAm area

b) Similarly, any interference with the right offree association will be strictlyscrutinized


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4) Freedom of Religion/Free Exercise Clause: the court will use strict scrutiny toevaluate any impairment with a persons free exercise of religion

a) Even if the government does not intend to impair a persons free exercise of hisreligion, if it substantially burdens his exercise of religion the government will have togive him an exemption from otherwise-applicable regulation unless denial of anexemption is necessary to achieve a compelling government interest

c. Middle-level Review: (middle standard) Requires:i. Important Objective: the government objective has to be important (1/2 way b/w legitimate

and compelling)ii.Substantially Related Means: the means chosen by the government msut be substantially

related to the important government objective (1/2 way b/w rationally related and necessary)iii. Burden of Proof not certain, but usually on the governmentiv. Effect on Outcome 50-50 chance that the government action will be struck downv. When used

1) Equal Protection/Semi-Suspect: middle-level review will be used to judge an equalprotection claim, where the classification being challenged involves a semi-suspect trait

a) Semi-suspect trait = (1) gender, and (2) illegitimacyb) So any government classification based on gender or illegitimacy will have to be

substantially related to the achievement of some important government interest2) Contracts Clause: certain conduct attacked under the Obligation of Contracts Clause

3) Free Expression / Non-content-based: in the 1st Am are we use a standard similar(though not identical) to the mid-level review standard to judge government action thatimpairs expression, but does so in a non-content-based manner

a) For any content-neutral time, place and manner regulation

B. Federalist PapersFederalist No. 10 (Madison)

The dangers of faction Madison views them as threatening to divide the country and to deny minorities equaltreatment under the law.

However, we have to live with factions and the only way to live with factions is to control their effects.o To mitigate the effects of faction when the faction controls a majority, Madison thinks that a republican

form of government, with checks and balances, will be most effective.

Federalist No. 78 (Hamilton) Mostly concerned with judicial tenure Hamilton argues for judicial review in the Federalist #78

o Federalist #78 was written in response to anti-federalist article stating fears of an all-powerful judiciary

Hamilton argues that courts should act as intermediary between the legislature and the people, restraining theformer within the limits of its authority.

II. The Supreme Courts Authority and The Federal Judicial Power

A. The Federal Judicial Power:1. Art. III, 1: The federal judicial power shall be vested in one Supreme Court, and in such inferior courts as the

Congress may from time to time ordain and establisha. Art I Courts = Legislative Courts that Congress may create

1) Congress may not give them the power to hear cases w/in the jurisdiction of Art. III courts2) Ex: Bankruptcy courts, tribunals of administrative agencies

2.Types of Federal Court Jurisdiction:a. Cases in which the parties diversity of citizenship determines the jurisdiction: Cases b/w citizens of

different state, where the amount in controversy exceeds $75,0001) Note: the amount in controversy requirement is statutory, not constitutional


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b. Cases in which the subject matter determines the jurisdiction (Federal Question Jurisdiction): Casesarising under the Constitution or the Laws of the US, andTreaties made under their authority

c. Cases in which the identity of the parties determines the jurisdiction:1) Cases b/w a state and a citizen of another state2) Cases in which the U.S. is a party

a) Note: U.S. may only be sued with its consent, usually provided by federal statute3) Cases b/w 2+ states4)Cases b/w a state or its citizens and a foreign country or foreign citizen

g. DOES NOT INCLUDE cases where both parties are citizens (residents) of the same state, and no federalquestion is raised

3. Original Jurisdiction of the Supreme Court: Art. III, 2, cl. 2 grants the Supreme Court originaljurisdiction to all cases:

a. Affecting Ambassadors (and other public Ministers and Consuls); andb. Those cases in which a state is a partyc. However, original jurisdiction is most often exercised for controversies b/w 2+ states, under 28 USC 1251d. NOTE: Original jurisdiction cannot be enlarged or restricted by Congress; however, lower federal courts could

be granted concurrent jurisdiction by Congress4. Appellate Jurisdiction: Art. III, 2: Federal courts may also hear other (non-original jurisdictional) cases tha

come to the court on appeal

B. The Authority for Judicial Review the Supreme Courts authority to review the actions of the legislative andexecutive branches to determine their constitutionality. Requires courts to interpret and apply the Constitution to acts todetermine their validity

1. Constitutional basis: No Constitutional provision explicitly provides for judicial review. The Supreme Courtcreated this power by means of its interpretation of the Constitution

2. Federal Judgments - Judicial review of federal judgments established in Marbury v. Madison.

Marbury v. Madison (1803).FACTS: Marbury sued to compel delivery of his commission as a Justice of the Peace after President Jefferson andSecretary of State Madison failed to deliver it to him after President Adams had appointed him.

RULE: The Supreme Court, has judicial review over acts of Congress. Marbury established the authority and dutyof the judiciary to review the constitutionality of both federal executive and legislative acts and declare acongressional statute unconstitutional if falls outside the legislatures enumerated powers.

o The Constitution is silent as to whether federal courts have this authority.

*Four things to take from Marbury:o (1) Constitution is regulatory; creates principles that can be adjudicated

o (2) Art III is the ceiling of original jurisdiction of the Supreme Court and Congress may not expand thispower

Note: Congress can change federal appellate jurisdiction, under Art III, 2 as long as the changeis neutral, without the intent to decide the merits of the case through the change in jurisdiction

o (3) Supreme Court may review the acts of the executive to determine their constitutionalityo (4) Supreme Curt may review the acts of the legislative to determine their constitutionality

3. State Judgments The Supreme Court may review state court opinions, but only if there is a final judgmentof an issueof federal law by the highest state court the Supreme Court cannot review state court decisionsadjudicating only state law issues. Judicial review of state judgments established in Martin v. Hunters Lessee(1816)

a. Exception: Independent and Adequate State Grounds: Even if there is a federal Q in the statecourt case, the Supreme Court may NOT review the case if there is an independent and adequate stateground for the state courts decision


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i. Violations of State and Federal Constitutions: If a state action violates the same clause ofboth state and federal constitutions (e.g., the Equal Protection Clause of each), the state court decisionmay or may not be based on an independent state ground.

1) If the state court is saying, this state action would violate our state constitution whether or notit violated the federal constitution = Independent

2) If the state court is saying, based on our reading of the constitutional provision, which wethink has the same meaning under both the state and federal constitutions, this state actionviolates both constitutions Independent, and the Supreme Court can review the state court

decision3) For Supreme Court review, the state court judgment must have been decided on federal

groundsii. Application in common situations:

1) Supreme Court will review:a) A state court finding that a state law is valid under both the federal and state

constitutions if the Supreme Court disagrees on the federal issue, the case will bereversed

b) A state court finding that a state law violates the state and federal constitutions, but thecourt didnt intend its decision to rest independently on state grounds, which itinterpreted to be co-extensive with the identically worded federal constitutionalprovision state court may have misinterpreted federal law, and the state ground is

not independentc) A state court decision, where it had both state and federal grounds on which to decide

the case (either one of which would be sufficient by itself), but chose federal grounds will review despite the fact that adequate state grounds existed

i) Regardless of the outcome on the federal Q, the rights of the parties under thestate law would not be affected

d) A state court decision where it is unclear whether the state court relied on federal orstate grounds

e) A state court case that interprets state law that incorporates a federal law by referencef) A state court decision on state procedural grounds precluding state court review of a

federal substantive issue will review unless the state court decision on proceduralgrounds rested on a fair or substantial basis

i) Court will find state procedural grounds NOT adequate (allowing review)where:

(1) the procedural rule does NOT meet the requirement of fundamentalfairness, and either:

(2a) the state ground is motivated by bad faith intent to deprivelitigant of a federal right; or

(2b) obstacles posed by state law unreasonably interfere with thevindication of a federal right

g) A state court decision involving a state substantive law connected with an importantfederal interest (e.g., nature of Ks, or whether a confession was coerced)

2) Supreme Court will NOT review:a) A state court finding that a state law separately violates both federal and state

constitutions if the Supreme Court disagrees w/ the federal issue, the case will beaffirmed anyways, b/c the Supreme Court can NOT reverse a state court decisioninterpreting the states own constitution

b) A state court decision, where it had both state and federal grounds on which to decidethe case (either one of which would be sufficient by itself), but chose state grounds, aslong as the state grounds themselves do not violate federal law

Martin v. Hunters Lessee (1816) The Supreme Court may review state court decisions.


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The Constitution is based on a recognition that state prejudices and state interests might sometimes obstruct orcontrol the regular administration of justice.Cohens v. Virginia (1821)

Court declared that criminal defendants could seek Supreme Court review when they claimed that their convictionviolated the Constitution.

C. Limits on the Federal Judicial Power

1. Interpretive Limits

a. Three reasons why constitutional interpretation is necessary:i. Some important topics arent addressed by the Constitution at allii. Most constitutional provisions are written in broad, open-textured language; purposefully vagueiii. Its unclear which interests are sufficient to justify overriding constitutional rights

1) State must have compelling reasons to limit ones individual rightsb. Approaches to interpreting the Constitution

i. Originalism: The Court should only protect values clearly stated in the text of Constitution orclearly implicit from framers intent at the time it was written

1) Court shouldnt do much interpreting of laws enacted by our democratic institutions2) Example: It would be unconstitutional to elect a woman as President or Vice-President

because the Constitution refers to these office-holders with the word, he, and the framersclearly intended that they be male.

ii. Non-originalism: The Court should interpret the Constitution to protect rights that are not expresslystated or clearly intended.

1) Court should apply contemporary meaning2) The Constitutions meaning can evolve by amendment and interpretation.3) Example: Jim Crow Laws founders intended for slavery to continue, but moderninterpretation of equal protection = no segregation

iii.Modified/Abstract Originalism: The Court should follow framers general, but not specific,intent.

1) Every constitutional provision has an underlying concept, but courts in each generation cancreate their own

iv. Original Meaning: Constitution limited to the text and its original meaning at the time of theframing.

v. Process-based theory: Courts role is to create fair processes of government and let polity makesubstantive value choices

vi. Tradition: Court should protect a right only if there is a tradition of social recognition and protectionof that right

vii. Aspirationalism: Courts task is to identify and define values important to be protected frommajority.

1) Court decides its view based on tradition, history, precedent, social needs, content ofConstitutions open-textured provisions

c. The Second Amendment Example: A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be infringed.i. Three basic interpretations of the Second Amendment:

1)States/Collective rights: Second Amendment guarantees the right of the peoplecollectively to maintain effective state militias, w/o giving the individual citizens the right toown/possess weapons.

a) The federal and state governments may prohibit or restrict use and possession, subjectto 14th Am limitations only

b) Silveira v. Lockyer (2003) The State of California amended its gun controlstatutes to considerably restrict the possession, use, and transfer of semi-automaticweapons


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RULE: The Second Amendment does not protect an individual right to have firearms,but only limits Congress from regulating guns in a way that would keep states fromprotecting themselves.

2) Limited individual rights: Individuals maintain a right to possess firearms so long assuch possession reasonably relates to militia service.

3) Traditional individual rights: Second Amendment recognizes fundamental right ofindividual private citizens to possess and use firearms for any purpose at all, subject only tolimited government regulation.

a) The right to bear arms is fundamental, and therefore, the right may be applied to thestates through the 14th Am

b) Heller v. D.C. (2008) a D.C. cop wanted a permit for handgun in home for self-defense, which D.C. deniedRULE: Supreme Court held that 2nd Am includes a personal right to have guns, atleast in the home, for the purpose of self-defense D.C. handgun ban wasunconstitutional

i) NOTE: DC is not a state, therefore the first 8 Am apply to itc) McDonald v. City of Chicago (2010) upheld Heller as applying against the

States as well, and found Chicagos handgun ban unconstitutional. The Court foundthat self-defense is a basic, fundamental right, deeply rooted in this Nations historyand tradition and thus citizens must be permitted to use handguns for the core lawful

purpose of self-defense

2. Constitutional Limits on Judicial Review:a. Case and Controversy Requirement (Art. III, 2): A claimant must establish that the matter incontroversy

i. Elements: MNEMONIC: CReDiT (Controversy; Relief possible; Definite; Touching)1) Is definite and concrete;2) Touches the legal relations of parties having adverse legal interests;3) Involves a real and substantial controversy capable ofspecific reliefthrough a

decree of a conclusive characterii. Rationale:

1) Separation of powers is maintained by keeping the courts from giving advice to legislators;

2) Judicial resources are saved by waiting for live controversies; and3) With a real controversy before it, the court may be able to avoid a constitutional issue

altogether and decide the case on narrower groundsiii. Justiciability: A case is justiciable if there is standing to sue, the Constitution permits the issue to be

judicially resolvable, and there is no cause for judicial restraint; Justiciability doctrines = judiciallycreated limits on the matters that can be heard in federal courts

1) Constitutional v. Prudential:a) Constitutional Congress CANNOT override by statuteb)Prudential Limits: Based on prudent judicial administration and CAN be

overridden by Congress since they are not constitutional requirements2) Five Major Justiciability Doctrines: all must be met forany fed court to hear case

a) The prohibition against advisory opinions

b) Standing The Court has declared that standing is the most importantc) Ripenessd) Mootnesse) The Political Question Doctrine

iv. Standing = the determination of whether a specific person is the proper party to bring a matter tothe court for adjudication whether the litigant is entitled to have the court decide the merits of thedispute or of particular issues. Court will not address a constitutional challenge to government actionunless P has standing to challenge action. Note: as a practical matter, the Court uses standing as atool for avoiding deciding certain cases on the merits.


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1) Constitutional Elements of Standing (Based on Art III): To have standing P mustshow concrete stake in the outcome

a)Injury: P must allege that he has suffered an imminent or actual injury (injury in fact can be small or trifling, but must be real)

i) Nature of Injury:It can be economic, aesthetic, environmental, recreationalor reflect a spiritual stake in the 1st m rights of free exercise andestablishment

(1) It must NOT be so indeterminate or dilute that its impact on the P is

no different from the injury to citizens at large such generalizedgrievances are NOT heard by the courts

b)Causation: P must allege that the injury is fairly traceable to Ds conduct; Notattenuated

c) Redressibility: P must show facts that demonstrate that a favorable federal courtdecision will substantially eliminate or redress the injury

i) Ensures Ps vigorous litigation and that he has a stake in the outcomed) Allen v. Wright Parents of black schoolchildren (P) brought an action to compel

the IRS (D) to deny tax-exempt status to private schools that discriminate (an illegalpractice), alleging that (1) it promoted segregated schools, and (2) made desegregationmore difficultRULE: One does not have standing to sue in federal court UNLESS he can allege the

violation of a right personal to him federal courts are designed to hear generalgrievances

i) No standing here b/c P failed to show: (1) specific or actual injury, as this wasa general, theoretical grievance w/ no showing of a denial of equal protectionto P, and (2) remediability, as no indication that a favorable decision wouldimpact segregation by facilitation integration

(1) The right to have Gov act in accordance with the law is notsufficient to confer standing to do so would constitute an excessiveinvasion by the judiciary into the executive branch

Dissent: Ps allegation that the conduct of the IRS promotes the exodus of whitechildren who would otherwise attend integrated schools is sufficient concrete injury toconfer standing

e) Mass. v. EPA Mass sued the EPA, alleging that the agency failed to meet itsobligations to regulate greenhouse gases under the federal Clean Air Act.RULE: P has standing if it demonstrates a concrete injury that is both fairly traceableto D and redressable by judicial relief. The Court found that the state had met thestanding requirement of Art. III: (1) the injury requirement was met b/c of globalwarnings effect on the states coastal land; and (2) on causation and redressability, theCourt rejected the EPAs argument that the effect of regulation on the statesenvironment would be minimal, finding that any improvement in the condition of theenvironment, even if minimal, would redress the injury

Note: the rules for standing may be relaxed for a state suing on behalf of its citizens2) Prudential Elements of Standing: Congress can override

a) No third party standing - A party may assert only his or her own rights

and cannot raise the claims of third parties not before the courti) Exception: A party will have standing to vindicate someone elses rightsonly where P has suffered direct injury as a result of the 3rd partysconstitutional of federal rights being violated, and only if:

(1) The 3rd P may not be able to vindicate her own rights; and(a) Such impairment of a 3rd Ps rights will be found if either P

or the 3rd P is placed under legal restrictions that prevent the3rd P from exercising his constitutional rights

(2) There is a special relationship b/w the P and the 3rd P, such thatvindication of the 3rd Ps rights will remove the injury in fact suffered


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by P, and that Ps interest is so closely analogous to the 3rd Psinterest that P is an effective proponent of the 3rd Ps rights

ii) Examples:(1) One type of 3rd P standing is that of a state to sue another state on

behalf of its citizens as parens patriae, to protect its citizenscomfort, health, and property rights (including environmentaldamage cases) (Note that this covers suits against other states, NOTthe federal government)

(2) One can assert the rights of others when those other could not e.g.,if a state law requires disclosure of NAACP membership lists, theNAACP can file suit on behalf of its members, claiming breach ofmembers freedom of association rights, b/c if the membersthemselves filed suit, they would have to reveal their identities

iii)An association will have standing on behalf of its members if thefollowing requirements are met:

(1) The members have standing;(2) The interests the association seeks to protect relate to the

associations purpose; and(3) Neither the claim itself nor the relief requested require the individual

participation of association members

b) A party may not sue as a taxpayer who shares a grievance in common withall other taxpayers

i) Exceptions:(1) Federal taxpayers virtually never have standing, however, in theory, a

taxpayer has standing if he meets this two-part test:(a) The challenged federal action arises from Congress power

under the Taxing and Spending Clause of Art I, 8 (Note: thetaxpayer can NOT rely on expenditures incidental to someother power to obtain standing); and

(b) The challenged expenditure violates a specific constitutionallimitation on the taxing and spending power

(i) e.g., the Establishment Clause of the 1st Am, which

was enacted in part to ensure that the taxing andspending power wouldnt be used to benefit onereligion over another

(ii) Note: the only case in which the Supreme Court everrecognized federal taxpayer standing was in Flast v.Cohen (1968) (challenging federal expenditures toparochial schools). The Court has denied standing inevery other case, suggesting that Flast is limited to itsfacts, and has held on ~ facts that Flast only applieswhen Congress uses its power to tax and spend for thegeneral welfare.

(2) State Taxpayers: Like fed taxpayers, state taxpayers do not have

standing to sue in federal court based exclusively on their status astaxpayers

(3) Municipal Taxpayers: Municipal taxpayers have standing deemeddirectly injured by improper expenditure of the towns tax dollars

c) A party must raise a claim within the zone of interests protected by the statutein question

d) US v. Richardson P brought an action as a federal taxpayer alleging that certainprovisions of the CIA Act violated Art.1, 9, cl.7 of the Constitution, which requires a publicaccounting of the receipts and expenditures of public money. However, he made no claim thatfunds were being spent in violation of constitutional limits on the taxing and spending clause.


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Rather, he was seeking to compel the gov to give him information on how the CIA spendsfunds.RULE: A taxpayer does not have standing to bring a generalized grievance challenging astatute regulating a federal agencys accounting and reporting procedures.

a) This is the kind of general grievance that is common to the all members of the public he hasnt alleged that, as a taxpayer, he will suffer a particular injury from theoperation of the statute

b) Ultimately, the citizens remedy for such a claim is through the political process

c) Taxpayer standing is permitted only to challenge government expenditures asviolating the Establishment Clause of 1st Am, the provision that prohibits Congressfrom making any law respecting the establishment of religion

Dissent: The nature of Ps claim is that the Constitution gives him a right to receive, andimposes on the government a correlative duty to provide, an accounting of how public moneyis spent. Court of law exist for the resolution of such right-duty disputes, and therefore, whena P seeks judicial determination that D owes him a duty, P has standing to litigate theexistence of such a duty once he has shown that D declined to honor his claim.

v. Ripeness: seeks to determines when review is appropriate by separating matters that are prematurefor review b/c the injury is speculative and never may occur, from those cases that constitute an actualand present controversy (immediate threat of harm) warranting a determination by a federal court.Ripeness can best be understood as the determination of whether a fed court can grant pre-

enforcement review i.e. when can it hear a request for declaratory judgment1) Requirements of Ripeness (established in Abbott Laboratories): P must show that

review is not premature: demonstrate a harm has occurred or imminently will occura) Fitness of issue for judicial review: case must involve concrete disputes b/w genuine

adversariesi) Legal or factual Q? If legal, dont have to wait for additional facts to make

determination

b) Hardship to the parties of withholding court considerationc) Abbott Laboratories v. Gardner Drug manufacturer (P) claimed that a federal

agency that issued drug-labeling regulations, effective in the future, exceeded itsauthority and sought a pre-enforcement judicial declaration to that effect as well as aninjunction of the regulations.

RULE: A pre-enforcement review of challenged regulations is ripe for judicialdetermination where the issue involved is a purely legal one and the impact of theregulation on the challenger is direct and immediate.Note: This case has been applied to pre-enforcement review of statutes although itwas meant to apply only to pre-enforcement review of regulations. This expansionbeyond its original purpose has served to protect legislative efforts that could havebeen chilled by a constant stream of pre-enforcement reviews by disgruntledconstituents.

2) Prohibition against Advisory Opinions:a) Advisory Opinion = a decision on a hypothetical situation or an abstract problem,

as opposed to a concrete controversyb) An advisory opinion violates the case or controversy requirement of Art III

3) Poe v. Ullman P sought medical advice on the use of contraceptives but couldnt receive itb/c Conn statutes prohibiting the use of and dispensation of medical advice aboutcontraceptives. The criminal statutes had only been enforced in one case in 1940. Pchallenged the statutes constitutionality under the 14th Am.RULE: Criminal Statutes that are not enforced are not ripe for constitutional adjudication. Pswere concerned with the threat of enforcement, not the actual application of the statutesthemselves. Thus there was nothing for the Court to adjudicate b/c the Court doesnt addressactions w/ no immediacy.Note: the statute was declared unconstitutional 5 years later


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Dissent: The physicians and patients should not have to flout the law to get info oncontraceptives, regardless of the enforcement history. The Constitutional rights at issue shouldbe determined w/o forcing the arrest of one of the parties

vi. Mootness: For a court to decide an issue, the issue must notbe moot judgment on the particularissue must not have previously been decided or settled; applied less strictly than other justiciabilitydoctrines

1) P must present a live controversy at all stages of review, not just when fileda) If anything happens while a lawsuit is pending to end Ps injury, the case is to be

dismissed as moot; i.e. if P dies during appellate process of a criminalcase, if the parties settle, or if a challenged law is repealed

b) An issue is only moot if the controversy has been resolved. When an issue is moot, acourt can NOT decide it, b/c there is no controversy left to resolve

2) Supreme Court has said that the doctrine derives from Art IIIs prohibition against fed courtsissuing advisory opinions

3)Exceptions: certain types of cases are reviewable even if issue appears to be moot, b/c theyinvolve important constitutional questions

a)For wrongs capable of repetition but evading reviewi) Includes pregnancy and election cases

b) Voluntary cessation harm that has ended but may recuri) Not dismissed as moot if D voluntarily, but not permanently ceases the

allegedly improper behavior, but is free to return to it at any time (onlytemporarily resolved, and thus not moot)

ii) Only if there is no reasonable chance that D could resume the offendingbehavior is a case deemed moot on the basis of voluntary cessation

c) Cases involving continuing hare - Class Action Suitsi) A properly certified class action suit may continue even if the named Ps claims

are rendered mootii) So long as the members of the class have a live controversy the case can

continueb. Political Question: Even if P has standing, courts may refuse to decide a political question

i. Constitutionally committed or need exists for deference to another branch of governmentii. There is a lack of judicially discoverable and manageable standards for resolving it

c. 11th Amendment Sovereign Immunity: The 11th Am essentially forbids federal court actions againststates for money damages, based on the states past conduct, where the money damages will be payable from statefunds, unless state consented or Congress authorized the suit

i. Supreme Court has construed 11th Am to provide immunity from citizen suits against States to enforcerights in federal statutes where Congresss authority for legislation is from Art. I

1) BUT no immunity if Congresss authority derived from 5 of 14th (came later & modifiesearlier power)

ii. Exceptions: the following kinds of suits are NOT forbidden by the 11th Am:1) Suits by the federal government or other states against a state;2) Suits in which injunctive/declarative relief is sought against state officials for federal law

violations;

3) Suits by anyone against subdivisions of states (e.g., cities and counties);4) Suits looking for prospective relief instead of damages for past conduct;5) Suits in which the claim is that a state official violated federal law (constitutional or

otherwise), not state law;6) Suits brought against a state in state court (although a parallel principle of state immunity may

protect a state if sued in its own courts on a federal right);a) Alden v. Maine state employees (P) sued in state court their employer, the State

(D), claiming it to abrogate the states immunity from suit on federal claims in theirown courts.


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RULE: A constitutionally based sovereign immunity prevents states from beingrequired to entertain, in their own courts, a private damage suit based on violations offederal law. Congresss Art. I power does NOT authorize it to abrogate the statesimmunity from suit on federal claims in their own courts.Note: Alden says that this sovereign immunity is not specifically mentioned in theConstitution, but is tacitly recognized in the 10th Am. The Court justifies the broaderimmunity (than that provided by language) b/c 11th Am incorporates the generalimmunity from suit that states had before the Constitution created Gov.

Note: when you combine Alden with the Courts recent decisions saying thatCongress can NOT generally abrogate the 11th Am (e.g. Seminole Tribe), thestates are largely immune from private damage suits for violations of federally createdrights* Alden dealt only with Congress Art. I powers the federal government retains itspowers under the Civil War Amendments to abrogate state sovereign immunity

7) Damages sought against state officials personally (its damages payable by the state that arebarred); and

8) Suits under federal statutes enacted under 5 of the 14th Am, which gives Congress the powerto enforce the 14th Am.

a) Under 5, only appropriate legislation can abrogate state sovereignty (FLPrepaid Postsecondary Education Expense Board v. College Savings

Bank & United States (1999))i) Must be in furtherance of some evil that Congress intended to remedyii) Conduct must give rise to the 14th Amend violation that Congress sought to

redress in the Actiii) Standard = harm that is to be addressed must be

proportionate and congruent to the means chosenb) Seminole Tribe of Fla. v. Fla. (1996) when Congress acts under the Commerce

power, it cannot abrogate the 11th Am = states are immune from private money-damage suits in federal court brought under federal copyright statutes, trademarkstatutes, environmental laws, and any other statutes that are not supported by the 13th,14th and 15th Amendments, or the Bankruptcy ClauseNote: The Court has held that, unlike other s of Art. I, the Bankruptcy Clause

authorizes Congress to abrogate state sovereign immunity (Central Va. ComyColl. v. Katz)Note: 11th Am applies only to federal court suits brought by private parties seekingdamages against a state

c) Note: The Court has also held that a state does NOT have immunity in a lawsuit,brought under the Americans with Disabilities Act (ADA), where the disabled Palleged that he was denied access to the courts. B/c access to the courts is afundamental right protected by the 14th Am, the Court upheld Congress 5 power toabrogate state sovereign immunity.

i) However, in general lawsuits under the ADA, where employees claim that theywere fired b/c of their disabilities, Congress lacks the power to abrogate statesovereign immunity

d) U.S. v. Georgia Although in earlier cases the Court had held that Congress couldnot use its 5 powers to abrogate state sovereign immunity in the ADA, the Court heldunanimously that a paraplegic prisoner could sue the state under the ADA in thesecircumstances.

i) Title II of the ADA abolished state sovereign immunity for suits by prisonerswith disabilities claiming discrimination by state prisons

(1) Title II abrogates sovereign immunity in cases where violations of the8th Am are alleged (didnt address whether it validly abrogatessovereign immunity when 8th is NOT involved)

(2) The 14th Am incorporates the 8th Am by making it apply to the states


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ii) Title II of the ADA was a proper exercise of Congresss power under 5 of the14th Am, as applied to the administration of prison system

(1) Congress can enforce the 14th Am against the states by creatingprivate remedies against the States for actual violations of itsprovisions, which can involve abrogating state sovereign immunity

iii) Reasoning: the prisons conduct violated the 8th Ams ban on cruel andunusual punishment, which is applied to the states through the 14th Am. B/ctreating a prisoner with cruel and unusual punishment is a constitutional

violation under the 14th Am, Congress could validly abrogate the statesimmunity

ii. Application: when analyzing a Q in which a state is being sued in federal court, theres a potential11th Am problem (in that the 11th Am prohibits federal courts from exercising jurisdiction overcertain kinds of suits against states) Ask these qs:

1) Who is the P?a) 11th Am applies to: all private Psb) 11th Am does NOT apply to: another state or the federal government as P

(even when its suing to protect private persons)2) Is the state a D? The 11th Am only applies to cases against states

a) Yes: State government, agencies of the stateb) No:

i) Political subdivisionsii) Municipal corporationsiii) Countiesiv) School boardsv) State officers sued in their personal capacity (unless the action requests the

officer be ordered to pay funds from state treasury for wrongful acts of thestate or return property in the states possession, in which case the state isthe real party in interest)

vi) Public officials of a state, if the claim is that the official violated the Psfederal constitutional rights

3) What is the relief sought?a) 11th Am applies to:

i) Damages,ii) Past debt,iii) Retroactive relief of any type

b) 11th Am does NOT apply to:i) Injunctive or declarativerelief ,orii) Suits against state officials ifsuit seeks to force them to conform their conduct

to federal, not state, law4) Has the state waived immunity?

a) Yes:i) Express in legislation itself; orii) Implied willfully engaging in federally regulated activities that are not

essential state functions

b) No: Participation in a federal programi) e.g., accepting federal funds in the absence of an explicit Congressional

requirement that doing so constitutes a waiver5) Does a congressional grant of jurisdiction apply?

a) Federal statutes based on congressional power to enforce 14th Am (e.g., civil rightslaws) are not subject to the 11th Am bar

III. The Federal Legislature: Congressional Power

A. General


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1. Three Principal Types of Congressional Powers:a. ExpressorEnumerated Powers underArt. I, 8;b. Implied Powers, underthe Necessary and Proper clause, Art. I, 8; and

i. Gives the federal government the power to pass any law that is necessary and proper for the executionof its express powers

c. Inherent Powers powers inherent in the concept of national governmenti. The principal inherent power = the foreign affairs powerii. Note: Congress has NO inherent domestic affairs power; the 10th Am explicitly reserves all non-

enumerated powers to the states. Thus, the few inherent powers, such as the foreign affairs power, arein effect limited exceptions to the 10th Am.

2. Rooted in Federalism:a. Congress can act only if Constitution impliedly or expressly grants it such powerb. 10th Amendment: All powers not given to Congress, and not withheld from States by the Constitution,

are reserved to the Statesi. The power delegated to the federal government were significantly expanded by McCulloch v.

Maryland (1819), Constitutional amendments following the Civil War (13-15), and by some lateramendments

c. Purpose of preserving State power:i. Prevent tyanny

ii. States are closer to the people uphold democratic idealsiii. States can be laboratories for experimentation in social and economic change and the country as a

whole can benefit by seeing the effects in different states

3. Major Powers of Congress:a. Mnemonic: PACE CRIED STABLE =

i. Postal; Aliens, naturalization and citizenship; Columbia (power to govern D.C.); Elections(congressional); Civil Rights (derived from power to enforce 13th-15th Ams); Interstate commerce;External (foreign) affairs; Defense; Spending for general welfare;Taxation; Admiralty; Bankruptcy;Lands owned (federally owned lands under property clause); Eminent domain

ii. Significance: a valid federal law must be rationally related to a congressional power, or necessaryand proper to effectuate one of them

1) If Congress legislates beyond its powers, its violating the 10th Amb. Note: There is NO federal police power only states have the power to regulate for health, safety and

general welfare any federal regulation must fall under an enumerated poweri. Excpet for D.C. b/c not a state

B. The Enumerated & Implied Powers of Congress (Article I):(1) Necessary & Proper Clause;(2) Commerce Power;(3) 14th Am Enabling Provisions (Reconstruction Amendments);(4) Taxing & Spending Power;(5) Power to Authorize Suits Against States;(6) Power to Delegate Authority

1. The Necessary and Proper Clause (N&PC): Implied Powera. Art I, 8, Clause 18: Congress may make all Laws which shall be necessary and proper for carrying into

Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of theUS = gives Congress authority to act to bring into execution its enumerated powers

b.McCulloch v. Maryland (1819)(Marshall) Court expansively defined the scope of Congressional powers.Congress created 2nd national bank and MD taxed the bank. Congressional creation of bank challenged asunconstitutional.


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Rule: Certain federal powers, giving Congress the discretion and power to choose and enact the means toperform the duties imposed upon it, are to be implied from the N&PC. The Court held thatCongress had theauthority to charter the bank, under the N&PC, and MD cannot tax the bank b/c federal law is supreme

i. Necessary absolutely necessary as long as the means is rationally related to aconstitutionally specified object, the means is constitutional

1) Let the end be legitimate, let it be within the scope of the Constitution, and all means whichare appropriate, which are plainly adapted to that end, which are not prohibited, but consistentwith the letter and spirit of the Constitution.

ii. The bank was rationally related to Congress enumerated powers to collect taxes (taxation), to borrowmoney (spending), and to regulate interstate commerce

iii. States cannot exercise their power to tax over that of the national gov Constitution is supreme1) Marshalls view on taxing bank:

a) The power to create implies the power to preserveb) The power to destroy is incompatible with power to preservec) The power to tax is the power to destroy

2) The states have no power, by taxation or otherwise, to retard, impede, burden, or in any othermanner control, the operations of the constitutional laws enacted by congress to carry intoexecution the powers vested in the general government.

2. Commerce Clause:a. Art. I, 8, Clause 3: grants Congress the power to regulate Commerce with foreign Nations, and among

the several statesi. Rationale: to eliminate economic balkanization and trade barriers among the states, so that a truly

national economy is maintainedii. The Commerce Clause acts both as (1) a source of congressional authority, and (2) as an implicit

limitation on state poweriii. Commerce: Any activity may be regulated, even if not traditional commerce (the movement of

persons or goods), as long as the activity:1) Takes place w/in IC2) Uses channels or instrumentalities of IC3) Affects IC

b. Commerce Clause History:

i. 19th C 1890s: Liberal Era Broad, expansive commerce definition, but rarely used1) Commerce:

a) Commercial intercourse b/w the states and parts of the nationb) Commerce is broad and includes more than exchange of goods, which is one of its

components, including navigation and production of componentsc) Among = intermingled with, extending authority beyond the state border into the

interior (Ogden)i) Does NOT extend to a completely local activity which does not extend to or

affect other states.2) No 10th Am Limitation: Congress has complete authority to regulate all commerce among the

states as if no state existeda) Plenary Power: Commerce power, like all others vested in Congress, is complete in

itself, may be exercised to its utmost extent, and acknowledges no limitations otherthan are prescribed in the constitution.

i) The sole restraint on the exercise of these Congressional powers isrepresentative government.

Gibbons v. Ogden (1824): NY granted monopoly to NY operator of steamboats in NY waters, andprevented person with a federal license from operating in state.Held: Congress could regulate, as commerce is all stages of business including navigation.Want says: most known for establishing Dormant Commerce Clause authority of Congress. TheCourt said that CC is an independent limitation on state power even where Congress has NOT acted.


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iv) Includes regulation against racial discrimination and hours and wagesb) Court not only begins to give great deference to Congressional actions, it uses a series

of tests to expand Congressional power to regulate more and more local activities thatarguably have some sort of effect on the free flow of IC

c) Theories used by court to expand Congressional CC Power:i) Substantial Economic Effects Theory (NLRB v. Jones & Laughlin

Steel)(1) Under CC Clause, Congress can regulate any activity, even local or

intrastate production, if the activity has an appreciable effect, eitherdirect or indirect, on IC - act that in itself or with other activities hassubstantial effect upon or on movement in interstate trade

(2) The Court bases its opinion on a combo of CC and N&PC: powerto regulate IC extends to control over intrastate activities whennecessary and appropriate to make regulation of IC effective

(3) Precursor to Lopezs 3-prong statutory schemeii) Cumulative Effect Theory (Wickard v. Filburn)

(1) Even purely local, non-commercial production, not intended forinterstate commerce is a matter for congressional regulation if,assuming many people would act in a similar way, the cumulativeeffect would burden commerce

(2) Wickard v. Filburn: Farm production that is intended forconsumption on the farm is subject to Congresss commerce power,since it may have a substantial economic effect on IC effect on theinterstate price of wheat

(a) Although the actual effect of Ds overproduction will besmall, the combination of all such producers does cause asubstantial effect on commerce

(3) Garcia v. San Antonio Met Transit Auth. (1985): Courtfound the application of the minimum wage and overtimerequirements of the FLSA to D was not destructive of statesovereignty or violative of any constitutional provision.

(a) Overruled Usery for 2 reasons1. Proved impossible to define zone of state sovereignty2. Protection of state sovereignty for political process, not

the courts.RULE: The test for determining state immunity from federalregulation under the CC is NOT whether the state activity sought tobe regulated is a traditional state function, but rather whether theregulation as applied to the state activity is destructive of statesovereignty or violative of any congressional provision

iii) Commerce-Prohibiting Technique (US v. Darby)(1) Though manufacturing is not itself interstate commerce, the shipment

of manufactured goods is such commerce and the prohibition of suchshipment by Congress is indubitably a permissible federal legislative

area(2) US v. Darby (overruled Hammer v. Dagenhart):Congress has

the power to regulate the hours and wages of workers who areengaged in the production of goods destined for interstate commerceand can prohibit the shipment in IC of goods manufactured inviolation of the wage and hour provision

(a) Extends Congresss power to exclude from IC articlesproduced under conditions Congress considered harmful tothe national welfare

4) Civil Rights Laws:


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a) Heart of Atlanta Motel v. US (1964): Congress enacted the Civil Rights Act in1964 based on its commerce clause power, and a provision prohibited discriminationby places of public accommodation because most motel clients were from out of state,and was challenged as unconstitutional against local businesses.RULE: Congress, under the CC, may regulate business local in scope, if their businessactivities have some impact on IC.

1) Doesnt matter that the primary purpose of enacting law was moral; requiredonly that:

i) There be a rational basis for belief of effect on IC, and(a) Congresss conclusion that racial discrimination in public

lodging had a deleterious effect on interstate movement ofpersons and goods was rational

ii) The mean chosen by the Act be reasonable and appropriateb) Katzenbach v. McClung (1964): family owned BBQ restaurant refused sit-down

service to BLKs, where a substantial portion of their food had moved in IC.RULE: Although an activity is local and may not be regarded as commerce, it maystill be reached by Congress if it exerts a substantial economic effect on IC

1) Act is constitutional as Congress had a rational basis for finding thatdiscrimination in restaurants had a direct and adverse effect on IC (sold lessinterstate food, travel was obstructed, and business in general suffered)

iv. 1990s now: Moderate Conservative Less broad and 10th Am used to some extenta. Lopez:

a. Gun-Free School Zones Act- IC impacts as noted by Rehnquista) Insurance pays for result of some crime and its costs are spread among

policyholders in different states

b) People will travel lessc) Impedes the educational process and result in less productivity

a) Lopez: to uphold the governments contentions here we would have to pileinference upon inference in a manner that would ...convert congressionalauthority...to a general police power.

c) Lopez: Under governments theory of IC effects, could regulate marriage,

divorce and child custody; all crime; and education including curriculumd) Lopez: Dissents

a) Stevens- Guns are articles of commerce. (Isnt this the basis of McClung -food served came thru IC)

b) Souter-the Rule is to defer to Congress if there is a rational basis.Distinction of majority is the like old distinction of direct and indirect

c) Breyer- 3 reasons to uphold the gun law:i. Can regulate local activities that affect ICii. Determine impact cumulativelyiii. Defer to Congress

b. Morrison-

a. Characterization ofLopeza)Noneconomic, criminal nature of conduct.b) No jurisdictional limitation baed on IC (or statute itself requiring ICc) No congressional findingsd) Attenuated link between conduct and IC

b. Morrison contends not substantial effects

a) Govts effects argument isa but for causal chain from the initial violentcrime to attenuated effects on IC.

b) Under this theory Congress regulate all crime or violencec) Violent crime is the prime object of states police power


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c. Souter Dissenta) just as the old Congress should be allowed to determine the substantial

affects in the aggregate. Court is to review rationality, not soundness ofCongressional action.

b) the first call of a theory of law is that ti should fit the facts. the facts thatcannot be ignored today are the facts of integrated national commerce andtheir respective treasuries.

a) Solid Waste- Issue: whether the Clean Water Act, which applies navigable waterscould be applied to intrastate waters bc of the presence of migratory birds.a. Holding: 5-4 No, so as to avoid constitutional doubts. Did not rule there was no

substantial effects, but to avoid deciding that constitutional issue where here was onthe outer limits of Congress power, would give no deference to the agencysdetermination of authority under the Clean Water Act and rule there was no suchauthority. migratory Bird rule would impinge on States traditional and primarypower over land and water use.

b. Dissents distinguishing Lopez and Morrisona) Discharge of fill nearly always under taken for economic reasonsb) Connection between such fills and decline of commercial activities not

attenuated

c) Regulations requirement of migratory bird use satisfies limitation to ICeffects.

d) Gonzalez- Two sufferers of serious illness sought to grow and use marijuana formedicinal purposes as permitted by California.

a. Rule: The CC permits Congress to criminalize local cultivation and medicinal use ofmarijuana even those uses otherwise comply with a states laws.

b. Holding: purely local activity that isnt commerce is reached by CC if it exerts asubstantial economic effect on IC. Majority used Wickard- to say that thecumulative economic effect would be substantial.

c. Courts role - determine is rational basis and here its diversion to illicit channelsd. Distinguishes Lopez and Morrison, part of valid statutory scheme thats not

outside CC power in its entirely and here its economic

e. Concurrence: Scalia- Category of substantial effects not IC, so must also invokeN&P clause. Though activity not economic can be reached in connection with amore comprehensive scheme for regulating IC. Objective of prohibiting marijuanafrom IC could be undercut if activities excepted.

f. Dissent: OConnor- Court ruling encourages Congress to legislate broadly to be partof comprehensive statutory scheme.This case involves criminal law and socialpolicy which is for state control.

I. In the Courts independent evaluation of whether substantial effect on IC, the Court considerslegislative findings, but Congress is not required to make formal findings.

1) Modern Analysis:a) Can commerce regulate this activity?b) Is this activity commercial or non-commercial?c) Ifcommercial (yet intrastate) - apply Cumulative Effects Theory: If the

cumulative effect of many people performing the activity, not intended for interstatecommerce, nevertheless substantially affects interstate commerce, then Congress mayregulate

i) Wickard v Filburn: established that non-economic activity may be reachedby CC if, in the aggregate, it substantially impacts IC


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d) Ifnon-commercial apply Lopezs Categories of permissible regulatoryactivities (below)

i) Laws regulating the channels of IC (Ogden as to navigation)ii) Laws regulating instrumentalities or people that travel/work in the channels of

ICiii) Laws regulating economic or commercial activity (or a non-economic activity

that is essentially part of a larger economic activity)2) Congress may regulate non-commercial activity if the court, in its independent evaluation

without deference to legislative findings, determines that the activity has a substantialeconomic impact on interstate commerce

3) Presently, the Court is using the 10th Amendment pretty much only to invalidate federal lawsthat have a tendency to commandeer states or state officials for federal objectives

c. Modern View of Commerce Power:i. Broad Categories of Activities that Congress can Regulate (US v. Lopez):

1) Channels: Congress can validly regulate use of the channels of interstate commerce (e.g.,highways and waterways) even though a particular activity may occur wholly intrastate.

a) Thus, Congress can regulate in a way that is reasonably related to highways,waterways, airtraffic

2) Instrumentalities: Congress can regulate the instrumentalities (people, machines, and

other things used in carrying out commerce) used in interstate commerce, even though theregulation affects a solely intrastate activity

a) e.g., Congress could mandate that every truck used in interstate commerce have aspecific safety device, even though a particular truck is used only intrastate

b) Includes articles / information moving in IC thus, Congress can regulate thedispersion of drivers identities b/c this info is exchanged across state lines, andtherefore is an article in IC (Reno v. Condon)

3) Substantially Affecting Commerce: The biggest category of activities that can beregulated are those that have a substantial effect on interstate commerce. Depends onwhether the activity is commercial or non-commercial.

a) Activity is Commercial: the cumulative effect theory applies Congresscan regulate an activity that as a class has a substantial effect on interstate

commerce, even if the activity, taken alone, would notb) Activity is Non-Commercial: Congress can ONLY regulate if there is an

obvious connection b/w the activity and interstate commercec) Courts wont give much deference to the fact that Congress believed that the

activity had the requisite substantial effect on IC the effect must in fact exist tothe Courts own independent satisfaction (Lopez)

i) U.S. v. Lopez (1995): the relationship of guns in schools and commerce wasfound to be too weak a connection to satisfy this test

ii) U.S. v. Morrison (2000): Court held statute was beyond CC power b/c theactivity is non-economic and the relationship b/w violence against women andinterstate commerce was also too weak for instance, the fact that somewomen fail to travel interstate or to work for interstate businesses b/c they fear

violence was found to be too weak a connection to interstate commerce toqualify

iii) Gonzales v. Raich (2005): Court upheld Congress criminalization of localcultivation and possession of state-approved medical marijuana as part of alarger regulation of the drug trade, signaling that Congress may regulate non-commercial activity where Congress reasonably believes that the failure toregulate the non-commercial activity would jeopardize the overall regulatoryscheme


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(1) Stands for the proposition that intrastate production of a commoditysold in interstate commerce is economic activity and thus substantialeffect can be based on the cumulative effect

(2) Production of commodity meant for home consumption, be it wheator marijuana, has a substantial effect on supply and demand in thenational market for that commodity

ii.Interstate v. Intrastate: Congress can clearly regulate any activity that affects interstatecommerce, but may also regulate some activites that take place wholly intrastate, due to effects on, or

relationship to, interstate commerce (Gibbons v. Ogden)1) Congress can regulate purely intrastate activities when:

a) Any intra state activity that has a substantial effect on interstate commerce (US v.Lopez)

i) Substantial Effect: Currently, an intrastate activity will have a substantialeffect on IC ONLY IF the matter regulated is part of an economic class ofactivities

ii) For Non-commercial activities, there must be an obvious connection andCongress must reasonably believe that failure to regulate would jeopardize theoverall regulatory scheme

b) Individual activities that have an aggregate effect on ICc) All parts of an enterprise, even if only a part of the enterprise affects IC, where the

non-regulated part may adversely impact the part affecting commerce

d. Scope of Commerce Clause Power:i. Control over IC = Plenary: Congress can prohibit or condition the movement of persons or goods

regardless of its motive, so long as it does not violate any other constitutional provision1) May do so to protect the national economy2) As a means to achieve health, safety or welfare aims

a) To a degree, Congress can regulate what happens after interstate commerce has takenplace

b) Congress may regulate and protect the instrumentalities of IC, such as vehicles,transportation terminals, even if the threat comes from intrastate activities (SouthernRailway Co. v. US)

c) Congress conclusion that an activity affects interstate commerce need only bereasonable

d) Once Congress finds that a class or aggregate of activities affects commerce, thatactivity may be regulated regardless of whether any particular instance of that activityaffects commerce (Perez v. US)

i) Commerce Clause power may reach employment issues, although it is a non-commercial activity, b/c if Congress finds that regulation of the intrastateactivity is part of a larger economic activity, it could have a substantial effecton IC

e. Limits on Commerce Power: 10th Am & Federalismi. 10th Am: Powers not delegated to US, nor prohibited to states, are reserved to the states and people.

Places small limit on Congress ability to use its CC power to regulate the states1) Generally-applicable law: If Congress passes a generally applicable law, the fact that the

regulation affects the states has no practical significance, and 10th Am doesnt matter. Ifregulation would be valid to a private party, it is also valid to state

a) Example: It is a constitutional exercise of the CC power for Congress to passminimum-wage and overtime provisions made applicable to all businesses of a certainsize

2) Use of States Law-making mechanisms: The 10th Am does prevent Congressfrom interfering in certain ways w/ a states law-making process.


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a) Congress may NOT commandeer the states to enact and enforce a federalregulatory program/legislation (New York v. US)

i. Court distinguishes or ignores Garcia on the following basis: Most ofour recent cases interpreting the 10th Amendment have concerned theauthority of Congress to subject state governments to generally applicablelaws. This litigation presents no occasion to apply or revisit the holdings ofany of these cases.

ii. But resurrects 10th Amendment to apply here.iii. The Constition has never been understood to conver upon Congress the

ability ot require the States to govern according to Congresss instructions

iv. Whether one vies the take title provision as lying outsdie Congress'

b) Administrative Actions: Extends to the executive branch Congress may NOTorder/compel a states executive branch officials to perform functions, even ones thatare easy to do and involve no discretion (Printz v. U.S.)

i. Rule: The fed. govt may neither issue directives requiring the states toaddress particular problems, nor command that states officers, or those oftheir political subdivisions, to administer or enforce a federal regulatoryprogram.

ii. Holding: Congress cant command the states executive officers absent aparticular constitution authorization.iii. Note: In Printz, Scalia wrote that the act violated separation of powers

principles because it delegated federal executive power to state and locallaw enforcement

2) Ex: Congress may NOT, out of concern for waste disposal, which has a substantial effect oninterstate commerce, pass legislation that requires any state that does not enact regulationsproviding for disposal of its waste to take title to all w/in its borders and be liable fordamages connected to the wastes disposal

a) Congress COULD use its spending power to encourage the states to undertakeprograms regulating waste by promising them funding

3) Note: Congress may directly set standards for waste disposal by the states4) Reno v. Condon:

a) Issue: May Congress regulate the states activities where the regulation does notrequire the states in their sovereign capacity to regulate their citizens?

b) Rule: Congress may regulate the states activities where the regulation does notrequire the states in their sovereign capacity to regulate their citizens.

c) Court upheld act that created a regulatory scheme restricting states ability to disclosepersonal information of drivers without their consent.

d) Analysis: The Court distinguished from NY and Printz which had held that federalstatutes were invalid bc they had commandeered the state legislative process. Thosecases protected the process of autonomous state lawmaking, holding that Congresscould not require the states to do Congresss work for it. In Reno v. Condon, the

Court protected the Congresss substantive authority to regulate a certain field anddisplace the state from regulation.

3. 14th Amendment Enabling Provisions (Reconstruction Amendments): 11th Am doesnt applya. 14th Amendment, 1:No State shall deny to any person the equal protection of the lawsb. 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this articlec.Together = Congress has enactment power to:

i. Legislate to enforce 14th Am rights and guarantees1) Up to Court to define the meaning of these guarantee and decide whether conduct is or is not a

violation of due processii. Prevent or remedy violations of rights already recognized by Congress


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iii. BUT Congress may NOTregulate private behavior under the 14th Am (Civil Rights Casesof 1893; affirmed in US v. Morrison) 14th Am restrains state action ONLY

1) Thus, 5 confers Congress power to enforce prohibition of discrimination on states ONLY, notprivate individuals

2) Private acts of racial discrimination = private wrongs that the national government is powerlessto correct based on the sovereignty afforded to States under the 10th Am

d. Current View: 5 of the 14th Am allows Congress to expand, somewhat, the rights provided in 1, not a loti.Congress Enforcement Power = remedial; doesnt allow for creation of substantially new

rights1) To adopt a valid law, Congress must:

a) Show a history or pattern of violation by the state (the evil to beprevented/remedied), and

b) Adopt legislation that is congruent and proportional to solving the identified evilii. Specifically, Congress has limited authority by City of Boerne criteria: for Congress to have

legislative authority under 5, there must be1) Congruence and2) Proportionality b/w the injury/harm to be prevented and the means adopted to that end

iii. IF violation of a FUNDAMENTAL right, Court uses heightened scrutiny (esp. access to courtproceedings, which is in the bill of rights)

4. Taxing & Spending Powera. Art I, 8: Congress has power to lay and collect taxes to pay the debts and provide for the common

defense and general welfare of the USi. The General Welfare Clause = a limitation on the taxing and spending power

1) i.e., Congress may tax ONLY for the purpose of providing for the general welfare, NOT forthe purpose of regulating an activity

2) HOWEVER, if an activity could be regulated under an enumerated power, it may also beregulated through taxation

3) Not an independent source of power, but merely serves as a limitation on the Taxing andSpending Power

b. Taxing Power: Congress can regulate or limit activities by imposing taxes on them, effectively prohibitingthem where the tax is substantial

i. As long as the tax produces revenue, it may be enacted for any motive, even purely regulatoryones that have no genuine money-raising purpose

ii. It may NOT, however, tax foreign exportsiii. Tax valid if:

1) Congress has power to regulate the taxed activity, OR2) Congress does NOT have the power to regulate the taxed activity, the tax must bear some

reasonable relationship to revenue productionc. Spending Power: Congress has the power to spend for the common defense and general welfare

(not just enumerated powers)i. This includes spending done in order to exercise its other powers of for proper public purposeii. Where Congress has expressly mandated that specifically appropriated funds must be spent, the

President CANNOT refuse to make those expenditures

iii. Congress MAY condition an expenditure upon state compliance with federal regulations (i.e. highwayfunds allocated to a state will be reduced by 5% if the jurisdiction permits under 21 to purchasealcoholic beverages)

1) Allows Congress to attach strings to grants of federal money and indirectly regulate what itcannot regulate directly

2) Congress may regulate through spending power activities not w/in Congresss regulationpower IF:

a) Condition is express and unambiguous;b) Serves the general welfare;c) Condition is reasonably related to the purpose for which the funds are allocated; and


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d) Condition does NOT cause states to violate an independent constitutional bar

IV. Federal Executive Power: Art. II

A. General:1. Execution of Laws: the executive branch has exclusive law enforcement powers (i.e. carries out the laws that

Congress makes)a. Congress could NOT, for instance, delegate the power to conduct litigation to a committee of its own

2.Main Executive Power:a. Inherent PresidentialPowersb. Domestic Powersc. Eternal Affairs Powersd. Privileges & Immunities

3. Unlike most Congressional powers, many executive powers are implied, so need not fall w/in an enumeratedpower to be found in the Constitution

4. President is the only source of Constitutional executive powera. However, many executive responsibilities are delegated to other w/in the executive branchb. Most issues involving presidential power concern the separation of powers (discussed below)

B. Inherent Presidential Powers: the ability of the president to act without express constitutional or statutory

authority.1. Express per Constitution Action w/in scope of power? Violation of another constitutional provision?2. Express per Statute Is the law granting power constitutional?3.Implied:Neither specific Constitutional nor Statutory Authority

a. Art I: The legislative powers herein granted shall be vested in Congressb. Art II: The executive power shall be vested in the presidentc.Executive Power = to see all laws are faithfully executed

4.Interpretations on Limits on Executive Power:a. There is noinherent presidential power;

i. The president may act only if there is express constitutional or statutory authority.

b. The president has inherent authority UNLESS the president usurps the powers of another branch.c. The president may exercise powers not mentioned in the Constitution so long as the president

does not violate a statute or the Constitution.i. Limit: When the Constitution and Congress are silent, the president may act unless and until

Congress intervenes and tells the president to stopd. The president has inherent powers that may not be restricted by Congress and may act unless the

Constitution is violated.5. Youngstown Sheet & Tube Co. v. Sawyer (1952)

a. In order to prevent the interruption of supplies to troops in Korea, the President on the eve of a steelworkersstrike issued an executive order directing the Secretary of Commerce to take possession of the steel mills andkeep them operating.b. Holding: The seizure of the steel mills was unconstitutional. The president, acting without congressionalauthority, may not seize private property. The presidents military power does not extend to labor disputes. Thepresidents power to enforce the laws refutes the idea that he is a lawmaker.

C. Domestic Executive Powers: Constitution confers the executive power on the president to administer and carryout the laws, and act in times of national (not domestic) emergencies without authorizing congressional legislation (Art.II, 1)

1. Presidential Pardon (Art. I, 2):a. The President can issue pardons, but only for federal offensesb. Can pardon individuals or whole classes of persons any time after offense is committed

i. EXCEPT: President CANNOT pardon anyone who has been impeached and convictedc. Effect of pardon is to preclude conviction or to mitigate or remove any penalties that result from convictiond. Power to veto CANNOT be limited by Congress


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2. Presidential Veto (Art. I, 7):a. The President has power to disapprove of (veto) any law passed by Congress

i. But, the veto may be overridden by 2/3s majority of either houseb. If President doesnt veto the bill w/in 10 days after receiving it, it becomes law

i. UNLESS Congress has adjourned by the 10th day after it sent Pres the bill = pocket veto (automatic)c. Line Item Veto = unconstitutional. Congress cannot give Pres the right to veto individual portions of a

statute (e.g., particular expenditures), as this violates the Presentment Clausei. Presentment Clause: bills are enacted into law by being passed by both Houses, then being presented to

Pres and signed by himii. Would give Pres the power to create laws which violates the separation of powers

3. Power of Appointment (Art. I, 2):a. The Pres has the power to vest executive power in certain government officers through the power of

appointmenti. Principal (i.e. High-Level) Federal Officers: Pres, NOT Congress, has the power to appoint

officers who exercise significant authority under the laws of the US1) Includes persons who formulate gov policy, enact rulemaking and adjudication, or otherwise

have broad gov powers, such as:a) Cabinet members;b) Federal judges;c) Ambassadors

2) Senate MUST approve all federal officials by majority vote, but has NO power to directlyappoint federal executive officers

ii. Inferior Officers: Congress decides whether these should be appointed by Pres, the judicial branch,or by the heads of departments (i.e. cabinet members)

1) But Congress CANNOT makes these appointments itself it merely decides who can makethese appointments

2) Includes heads of departments or officers whose work is directed and supervised by personsappointed by Pres

iii. Removal Power: Pres has power to remove any executive appointee without cause1) Exception: Pres MUST have cause in order to remove:

a) an officer who is appointed pursuant to a statute specifying the length of the term ofoffice; or

i) Congress can only limit removal by statute if:(1) it is an office where independence from the Pres is desirale, and(2) the statute doesnt prohibit removal, but limits it to where there is

good causeb) an officer who performs ajudicial orquasi-judicial function

2) Congress CANNOT remove an executive officer (principal or inferior), however, can to someextent limit the power of the Pres to remove an officer, IF Congress specifies a term of officeand then provides that removal is allowable only for cause

3) Federal Judges CANNOT be removed by Pres or Congressa) Art. III provides that federal judges shall hold their office during good behavior

this has been held to mean that as long a judge does not act improperly, she may notbe removed from office (except by impeachment by Congress)

b) However, the life tenure doesnt apply to Congressionally created Art. I courts

D. Executive Powers over Eternal Affairs: The federal government enjoys exclusive control over foreignaffairs; the states have none

1. Foreign Relations:a. Pres has exclusive power to:

i. Recognize (and w/draw recognition of) foreign governments;ii. Receive Ambassadors and other public ministers; andiii. Act on the nations behalf in day-to-day dealings w/ foreign governments

b. Pres shares w/ Congress the power to determine foreign policy, BUT Pres effectively controls it


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i. Some power over foreign affairs stems from the right to appoint ambassadors, but much is impliedform the nations need to speak w/ a single voice in foreign affairs

ii. Pres has a distinct advantage in that he controls information and can respond quickly to developmentsabroad

c. Treaty Powers:i. Art. II, 2: Pres has power to negotiate treaties, w/ advice and consent of Senate (2/3 to approve)

1) Pres alone may continue or terminate a treaty w/o Senates consentii. Supreme Law of the Land:

1) If conflicting state law treaty prevails2) If conflicting fed law last adopted controls

iii. None have been declared unconstitutionald. Executive Agreements:

i. Pres can enter into international agreements with head of another government without consent ofSenate (effective when signed by Pres and head of foreign nation)

ii. To be valid, it must be:1) Pursuant to the exercise of a Presidential power;2) Based on authorizing legislation;3) Based on a prior treaty; or4) Adopted by Congress (congressionally-executed agreement)

iii. Can be for any purpose

iv. Not Supreme Law of the Land if not approved by Congress conflicting federal statutes and treatiesSupreme to EA, but will prevail over conflicting State laws

2. Military Powers:a. Art. IIdeclares Pres Commander in Chief

i. Powers include:1) Committing armed forces to repel a sudden attackon the US itself (or any internal

insurrection), even before Congress declares war;2) Legislative power in establishing military governments in occupied territories; and3) Controlling the disposition (placement) of armed forces directs and leads the armed forces

ii. DOES NOT have the power to declare war Art I grants Congress the power to declare war andauthority to raise and support an army and navy

iii. Supreme Court Role: Rarely address constitutionality of Pres using troops in war w/o

congressional approvalb. War on Terrorism:

i. Hamdi v. Rumsfeld: D was charged as an enemy combatant and detained by the US military. Hechallenged his status and the constitutionality of holding him w/o formal charges or proceedings.

Held: Pres was authorized by Congress under the AUMF to detain D, however, 5th A Due Processgives enemy combatant right to contest detention before a neutral decision-maker. Separation ofpowers doesnt prevent the judiciary hearing Ds challenge

E. Privileges & Immunities:1. Executive Privilege: Pres has a qualified right to refuse to disclose confidential information relating to theperformance of his duties.

a. Since the privilege is qualified, it may be outweighed by other compelling governmental interests

i. Example: the need for the Press evidence in a criminal trial will generally outweigh the Presvague need to keep info confidential (US v. Nixon)

b. The executive privilege is not a constitutional power, but is an inherent privilege necessary to protect theconfidentiality of presidential communications with, or memoranda to, officers

i. It concerns those areas, which are beyond the reach of any other branchs inquiry because they are partof the presidents job.

c. United States v. Nixon (1974): President Nixon refused to turn over tapes of his privately recordedconversations that had been subpoenaed to assist in the prosecution of the Watergate scandal.Rule: Executive privilege is not absolute, but rather must yield when there are important countervailinginterests


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Holding: Presidential communications will be available to the prosecution when needed for evidence in acriminal trial

d. Cheney v. U.S. District Court (2004): Issue: Whether the Vice President must comply with a civildiscovery order.Rule: The need for information for use in civil cases does not share the urgency or significance of the criminalsubpoena request in Nixon

2. Executing Immunity:No executive branch immunity in Const., but court have recognized an implied

immunity based on separation of powers concepts:a. Absolute for Pres: The Pres has absolute immunity from civil liability for his official acts (Nixon

v. Fitzgerald)i. However, NO immunity forunofficial acts, including those committed before taking office (Clinton

v. Jones)ii. Criminal proceedings may be brought only after Pres has been impeachediii. No immunity from judicial process; court may order Pres to comply w/ subpoena (US v. Nixon)

b. Qualified for Others: All other federal officials, including presidential aides, receive only qualifiedimmunity for their official acts (Harlow v. Fitzgerald)

i. However, they lose this immunity if they violate a clearly established right, whether intentionally ornegligently

F. Checks on Executive Power:1. Impeachment (Art. II, 4): Congress can remove any officer of the US (Pres, VP, Cabinet members, federaljudges) by impeachment

a. House must vote by majority to impeach (like indictment), andb. Senate conducts trail 2/3 vote of Senators present at trial required to convictc. Convictions can be for treason, bribery, and other high crimes and misdemeanors

V. Separation of Powers: the practical consequences of giving each federal branch its own set of powers1. Pres can NOT make laws: Most important pres can only carry out laws made by Congress (Youngstreet Pres seizure order of steel mills = unconstitutional exercise of Congress lawmaking authority)

a. Line Item Veto: B/c cant make laws, cant be given line item vetoi. Violates Presentment Clause: bills enacted into law by passing both Houses, and being presented and

signed by Presii. Would allow Pres to change the law passed by Congress

b. Congress Acquiescence:i. The scope of Pres powers may be at least somewhat expanded by Congress acquiescence to his

exercise of powerii. NOT dispositive but in a close case, it may be enough to tip the balance, and to convince the Court

that the Pres is merely carrying out the laws rather than making themc. Implied Powers:

i. Enumerated powers NOT meant to be exclusive Constitution gives the Pres general executive orlaw carrying out powers

ii. Consequently, as long as Pres act seems reasonably related to carrying out the laws made by Congress,the Court wont strike that act merely b/c it doesnt fall w/in enumerated powers

iii. Example:Nothing in the Constituti

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