The Law Dictionary

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Constitutional Law



Judicial Review

  1. Constitutional Basis: Art III Sec. II Cl. II:
  2.     “In all cases affecting Ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have  original jurisdiction.  In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and  under such regs. as the congress shall make.
  1. Premise:
  2. the power of the courts to declare acts of government and governmental actors unconstitutional
    1. void/invalid according to Court’s interpretation of Constitution
  3. Marbury v. Madison
    1. Issue: can the Court issue writ demanding an exec. official do something or does that violate separation of powers?
    2. Analysis:
      1. when Court already has original jurisdiction over a case properly before it then it can issue a writ of mandamus
      2. Marshall: “it is emphatically the province and duty of the judicial department to say what the law is”
  • Constitutional Basis:
  1. Art. III Sec. 2: Courts hear cases arising under Const., then they can look at Const. to find rights and protect them
  2. Art VI Sec. 2: Supremacy Clause (Constitution is Supreme law of land)

iii. Art VI: Judicial Oaths-in taking oath judges swear to uphold Const.,

which means they have to make sure others are upholding it too

  1. Holding: statute is unconstitutional

-Congress just wasn’t allowed to give the Court this additional jurisdiction to hear writ matters originally, it can only hear these matters on appeal according to the Constitution

  1. Controversy:

-allowing judicial review puts power in undemocratic branch

-counterargument: Court is the least dangerous

  1. Construing the Constitution
  2.   Text
  3. it’s in the text explicitly
  4. it’s in the text implicitly

iii. it’s not in the text and if framers intended it they would’ve written it

-prohibitions and grants

  1.   Intent of the Framers
  2.   Precedent
  3.   Structure
  4. of gov’t as established by Constitution
  5. of the document itself
  6.   Other values
  7. Supreme Court review of state court decisions: Martin v. Hunter’s Lessee
  8.   Issue: does Supreme Court have authority to review a decision made by a

state supreme court on a question of federal law?

  1. underlying question: how much power did the states yield to the Const?
  2.    Analysis: Supreme Court:
  3. nature of appellate jurisdiction under Art. III Sec. I (textual argument):

-case, not Court, gives jurisdiction

-so if Art III Sec. 2 gives jurisdiction, Supreme Court has jurisdiction

regardless of whether it came from state court

iii. Supremacy Clause (textual argument)

-binds state court judges to the Constitution (Constitution is supreme law

of the land)

iv: States gave up sovereignty (Art I. Sec. 10) (and structure)

-prohibits states from doing a lot of things, shows that states gave up

sovereignty and the Const. acts on states.  Also imposes duties on states.

-it’s not inherently wrong for fed. gov’t to impinge on state acts

-federalism: drawing lines b/t state and fed. gov’ts

-if Supreme Court couldn’t review state court decisions then states would                                be stripped of more jurisdiction b/c no federal laws would go to state courts

  1. History argument: Judiciary Act of 1789 provided for SCOTUS review of       SCOTUS judgments
  2. policy argument:

-as a practical matter somebody has to have the last word

-helps w/ uniformity of decisions in federal law

-state interests might affect decisions b/c of state biases

  1.    Theory:
  2. Congress must create Supreme Court, which had appellate jurisdiction, so the

lower courts had to be created to handle the appellate jurisdiction

  1. Constitution requires states to give up some authority
  2. How broad is Exceptions Clause power to Jurisdiction Strip?
  3.   Constitution
  4. Art. III Sec. 2 Cl. 2 Sentence 2: “with such exceptions and under such regs.

as Congress shall make”

  1.    Ex Parte McCardle
  2. when is it too late for Congress to take away jurisdiction?

-when legislature repeals an Act, it is treated as though it never existed

-Congress can repeal Act at any time, except when transactions past

and closed

  1. here case already submitted but not decided, so repealing the Reconstruction

Act takes jurisdiction away from the Court

iii. gives broad discretion to Congress to strip jurisdiction

  1. Court emphasized that prisoner still had other avenues for appeals
  2.      U.S. v. Klein
  3. shrinks McCardle
  4. Rule: Congress cannot tell Supreme Court how to decide a particular case that is pending

-here, pardon is dictating rule of decision b/c it is saying that based on

certain evidence the court MUST find in favor of the gov’t and against the litigant

-not allowed

iii. here gives more narrow power to Congress to strip discretion

  1.       When arguing exceptions clause you either rely on McCardle and distinguish

Klein or vice versa


  1. Implied Powers of Congress:
    1. Arguing against implied powers:
      1. 10th Amendment:
        1. powers not delegated to the US by the Constitution, nor prohibited to the states, are reserved to the sates
      2. Arguing for implied powers:
        1. I Sec. 8:
          1. lists Congress’s enumerated powers
          2. there are a variety of enumerated powers. so Congress can use any means necessary to achieve those enumerated powers
        2. Necessary and Proper
          1. bolsters the implied powers argument b/c Congress can use authority to carry out its powers
        3. Necessary and Proper Clause

McCulloch v. Maryland

  1. Issue: does Congress have the broad authority to establish a national bank?
  2. State argument:
    1. Constitution
      1. MD says states gave power to Const. and now Congress is going beyond when states gave up
      2. 10th Amendment—rights reserved to the States
    2. Text
      1. MD says absence of text authorizing bank shows that Bank isn’t allowed
    3. Court additionally relied on:
      1. Constitution
        1. necessary and proper clause
          1. its placed within the granted powers of Congress to enlarge, not diminish Congress’s powers
          2. enumerate powers bring implied powers
          3. Congress has broad econ. authority, so it has implied powers, like the bank, to enact legislation to carry out those propers
          4. Rational basis test
            1. Is there an enumerated right behind Congress’s Act
            2. If yes, are the steps Congress took rationally related to achieving that enumerated right?
          5. absence of text:
            1. nothing in the Constitution prohibits establishment of bank
          6. Structure
            1. Constitution is broad outline to be filled in
            2. Structure of gov’t:
              1. it would be inconsistent w/ federalism to allow states to tax bank b/c there’s no political check on states to prevent them from taxing too heavily
                1. b/c states can’t be democratically elected out of office
  • History
    1. first Congress authorized a national bank
  1. Commerce Clause
    1. Constitutional Basis
      1. Article I Sec. 8
        1. Congress has power to regulate commerce amongst the several states
      2. Commerce power used in 2 ways
        1. used by Congress as source of authority for federal statute
        2. acts as a restraint on the states
      3. Commerce Clause Analysis
        1. is the thing being regulated commerce?
        2. is the thing being regulated interstate?
  • is it a regulation or a prohibition?
  1. is it prohibited by other limitations undermining Congress’s ability to regulate this area
    1. 10th amendment
    2. police powers
      1. health, safety, welfare, morals
    3. Gibbons v. Ogden
      1. Analysis:
        1. is navigation commerce?
          1. yes, commerce is traffic/buying/selling, and includes other activities that are part of buying and selling
          2. commerce is not just buying and selling, but all commercial intercourse
        2. is it between states?
          1. yes, because water leads up to border of other state, and Congressional regs. don’t stop at the boundary of each state
          2. limit: Congress can’t meddle w/ activities that are completely internal to the state (recognizing there might be completely intrastate commerce)
          3. if activity seems intrastate but has effect on other states, then Congress can intervene
        3. power to regulate?
          1. Prescribe rules by which commerce is governed
          2. Complete power, no limits besides the Constitution
          3. Check on Congress’s regulations is political, democracy will react if they don’t like Congress’s regs.
        4. there are no external prohibitions on these regulations b/c this is entirely ISC (not infringing on police powers, etc.)
      2. Champion v. Ames
        1. Statute: federal lottery act prohibited shipping lottery tickets through interstate mail. Interest: lotteries are dangerous/detrimental to population
        2. Challenge: power to regulate lotteries is reserved to the states through the 10th Amendment (because lotteries are morality)
          1. Police powers are reserved to the states, gov’t can restrict actions to achieve health, safety and public welfare
            1. Power to regulate morality not in the Constitution, so it is a police power reserved to the states
  • Response: it’s Constitutional b/c its commerce b/c it’s buying and selling over state lines
    1. Regulations can include prohibitions
  1. Holding: Act is Constitutional
    1. As long as Congress is regulating something used in interstate commerce, the underlying reason for the regulation is irrelevant b/c Congress was enumerated the right to reg. interstate commerce
    2. so it doesn’t matter if public morality (something normally left to the states to regulate) was one of the rationales for this Act
  2. Hammer v. Dagenhart
    1. Statute: Child Labor law prohibits transporting manufactured goods across state lines if they were made in a factory that uses child labor
    2. Holding: violation of Constitution
      1. Congress regulated the making of the goods (an entirely internal activity) instead of the shipment of the goods
        1. Regulating production not commerce
      2. Not the intent of the framers allow Congress to attack internal labor issues using Commerce Clause
  • Impact: created roadblocks because subsequent cases had to decide “what is commerce?”
  1. NLRB v. Jones & Laughlin
    1. Statute: NLRA regulates unfair labor practices affecting interstate commerce
    2. Challenge: the practices aren’t commerce, this is an attempt to regulate the entire industry
      1. Regulating industry is a local matter
      2. This is manufacturing not commerce
  • Holding: Court upholds the Act
    1. Test: Are the activities being regulated closely related to interstate commerce?
      1. Application: labor unrest adversely affects ntnl econ. so Congress can regulate labor relations
      2. A question of degree
      3. theory: as long as regulated activity has substantial effect on interstate commerce regulation is permitted
    2. Dissent: labor unrest is not “interstate commerce”
      1. It’s too remote to say that unrest affects economy which is related to commerce
      2. Scared of snowball effect—almost anything could be regulated
    3. Wickard v. Filburn
      1. Statute: Creates max. quota for wheat production
      2. Challenge: individual farmer growing and eating his own wheat doesn’t affect the ntnl econ. even if he grows it in excess of the max.
  • Holding: Act Constitutional
    1. Individual’s activity is related to interstate commerce
      1. Concept based on aggregation principle:
        1. Even if one person’s excess wouldn’t affect the market, if a lot of people are not subject to the law then there will be an affect on the price of wheat on the market which will affect the whole econ.
      2. Is there a limit on the aggregation principle?
        1. A question of degree
      3. Heart of Atlanta Motel v. U.S.
        1. Statute: 1964 Civil Rights Act used to strike down race discrimination in travel industry, like prohibiting motels from discriminating against patrons based on race
        2. Holding: Statute upheld
          1. Commerce clause permits Congress to regulate motels because discrimination in the South hurts the travel industry which hurts interstate commerce
        3. Katzenbach v. McClung
          1. Statute: 1964 Civil Rights Act trumps Ali’s BBQ, which only served white customers
          2. Holding: Statute upheld
            1. Any business that served food that moved through interstate commerce is subject to the Civil Rights Act
            2. Relies on aggregation principle from Wickard
          3. ***Overarching standard of review from previous cases:
            1. Congress can achieve its regulatory powers through the ISC so long as there is a rational basis for determining the activity being regulated will substantially affect interstate commerce
            2. Rule good until 1995…
          4. United States v. Lopez
            1. Statute: Gun Free School Zones Act of 1990 prohibits person from carrying a gun within 1000 feet of a school
            2. Government’s rationale:
              1. Guns in school zone affects interstate commerce so it can be reg. under ICC b/c:
                1. Education is affected (which ultimately affects econ.)
                  1. Relies on aggregation principle, guns lead to violence lead to negative affect on kids at school leads to affect on econ.
                2. Travel is affected
                3. Insurance
  • Holding: Act is unconstitutional
    1. No substantial affect on interstate commerce
      1. Congressional justification is too attenuated, too remote, too many inferences
      2. there is no economic activity here
      3. No findings to support Congressional claims
    2. This is an area for local regulation only
      1. Education is a state interest
    3. Analysis: 3 categories of commerce can be regulated
      1. Channels of interstate commerce
        1. Highways, rivers, etc.
      2. Instrumentalities of interstate commerce
        1. Trucks on the highway
      3. Activities having substantial relation to interstate commerce
    4. Dissent:
      1. Why the sudden limit on Commerce Clause after so much expansion?
      2. Should rely on rational basis to determine whether guns would have subst effect on ntnl econ.
    5. Impact:
      1. Ambiguity as to whether rational basis test still applies to commerce clause questions
        1. Old rational basis requires deference
      2. United States v. Morrison
        1. Statute: Violence Against Women Act
        2. Gov’t rationale:
          1. Violence against women affects interstate commerce
            1. Provides findings that gender-motivated violence affects ISC
            2. Distinguish from Lopez where Congress didn’t provide findings
  • Holding: VAW Act Unconstitutional
    1. The findings don’t require deference
      1. They are too attenuated
      2. Court not convinced about econ. effects of violence against women
        1. even though they actually made findings here (unlike Lopez) Court wasn’t convinced
      3. Court didn’t think this was economic activity
    2. Dissent:
      1. Court needs to be more deferential
    3. Gonzalez v. Raich
      1. Statute: state medical marijuana statutes allow individuals to grow marijuana for personal use, but Federal Controlled Substances Act prohibit people from possessing/growing marijuana
      2. Holding: Federal Controlled Substances Act upheld
        1. This is an econ. activity
          1. Doesn’t matter that there’s no buying/selling
          2. There is a market for weed, so like Wickard the aggregate of many people individually growing will affect the national market for weed
        2. Rational basis
          1. Defer to Congress’s judgment that there’s a connection between regulating weed in this way and the national econ.
        3. Distinguish Lopez and Morrison:
          1. this is economic activity, there was no econ. activity in either of those cases
  • Dissent:
    1. Court isn’t being consistent
      1. Lopez and Morrison strayed from Wickard but now Court is returning to aggregation principle
    2. General principles of analysis under Commerce Clause:
      1. Key phrases for striking down federal legislation:
        1. Piling inference upon inference
        2. Truly national or truly local activity
          1. More local, more likely to be struck down
        3. Non-economic activity
          1. Prove there’s no national market
          2. Argue inferences that it’s truly a local issue
          3. Hard to prove
          4. Cannot use Wickard aggregation principle for non-econ. transactions
        4. Key Phrases for upholding legislation:
          1. Substantial effect of the aggregated activity must be econ.
            1. Wickard
          2. Findings to support claims econ. is affected
            1. rational basis
              1. Raich
              2. give a lot of deference to Congress’s interpretation of what will affect interstate commerce
  • Hypo: Can Congress ban creation of child pornography within the borders of one state when it’s not sold nationally?
    1. Yes, even though it’s solely interstate
      1. Rely on Wickard/Raich aggregation principles
        1. Creation in one state can affect creation in other states
        2. Doesn’t matter that it’s an illicit/illegal activity
      2. Harmonize with Lopez
        1. Define it as an economic activity
        2. Cite Raich where they defined marijuana as a commodity with a market
      3. Regulating States as States
        1. Constitutional consideration
          1. 10th Amendment: “the powers not delegated to the U.S. by the Const., nor prohibited by it to the States, are reserved to the states respectively, or to the people.”
          2. How does this affect state sovereignty?
        2. National League of Cities
          1. Holding:
            1. Rule: integral operations of the state cannot be touched by federal law
            2. Test: if federal law interfered w/ traditional state gov’t functions then 10th amendment prevents Congress from interfering
          2. Impact:
            1. Lower courts don’t know what is an “integral operation of the state”
          3. Garcia v. San Antonio Metro. Transit Authority
            1. Issue: can Congress impose requirements on state gov’ts when it passes laws of general applicability (when they apply to the private sector and public state sector alike)?
            2. Holding: Statute upheld
              1. Overrule National League of Cities
                1. “integral operations” test wasn’t mandated by 10th amendment
              2. Instead place focus on structure of federal gov’t
                1. States not protected by 10th amendment, they’re protected by democratic process
                  1. Can vote out unfavorable legislatures
                2. Rule: gov’t can regulate states when they are acting like a private party
  • Impact:
    1. Still good law but used narrowly
      1. Used as a defense for Congress when it wants to pass law of general applicability that happens to regulate states as employers
    2. New York v. United States
      1. Statute: Complicated law directing states how to handle their environmental waste by creating 3 levels of incentives to compel states to provide their own facilities for disposing radioactive material or to contract w/ another state to dispose of it; if they don’t do these things the gov’t will make them be responsible by making them take title
      2. Holding: law is unconstitutional
        1. Congress cannot force states to take title of the waste
          1. Too coercive
          2. Too punative
            1. Forcing states to reg. in the way Congress mandates
          3. It’s “commandeering”
            1. Taking over the state’s ability to govern itself
            2. Essentially drafting states to do fed’s job
          4. Printz v. United States
            1. Statute: Brady Bill, mandates that state law enforcement chiefs (CLEOs) must conduct background checks before allowing someone to purchase a gun
            2. Holding: Statute unconstitutional
              1. This is commandeering
                1. Essentially drafts state officers to carry out a federal mandate
                  1. unfunded mandate
                2. Relies on history
                  1. Early Congress’s didn’t use this power which suggests it didn’t exist
                  2. Federalist papers
                3. Diminishes executive power
                  1. By delegating too much power to the state
  • Dissent:
    1. Statute is valid under Necessary and Proper clause
      1. Do N&P analysis:
        1. This is commerce b/c guns can be bought/sold interstate
        2. Asking CLEOs to do these checks is necessary for regulating interstate gun transactions
      2. Hypo: Congress passes law forbidding state gov’ts from giving legal effect to same sex marriages
        1. Commerce clause analysis:
          1. Is it within the commerce clause?
            1. Arguments—if you’re married your taxes are lower and this affects commerce
          2. If yes, does it infringe on state sovereignty?
            1. Arguments for unconstitutional:
              1. It’s commandeering
                1. Not giving states a choice but to comply
                2. States are independent and autonomous within their spheres of authority
                3. Rely on Printz and New York
              2. It’s telling states how to regulate
            2. Arguments for constitutional:
              1. It’s not commandeering
                1. Just a suggestion on how to reg.
              2. It’s not coercion
                1. It’s only temporary/limited/solely ministerial
                2. The requirement is so small it doesn’t rise to level of coercion/commandeering
              3. Hypo: Federal regulation of poker player b/c it’s immoral and a waste of time, DHHS authors pamphlet and distributes it to governors who will be responsible for distributing the pamphlets in some way
                1. Commandeering?
                  • Yes
                    1. States have discretion in how to distribute but not whether to distribute
                    2. States are therefore carrying out fed gov’ts policy
                  • No
                    1. States have option of how to distribute
                    2. Not intrusive/costly like it was in Printz/New York
                    3. This is ministerial, minor, easy task just handing it out

State Autonomy Limits to the Spending Power

  1. Congress has spending power
    1. Limits
      1. Use it to pursue general welfare
        1. Strong deference to Congress when statute based in this rationale
      2. Conditions based on spending power must be unambiguous
        1. So states can make knowing choices and are aware of consequences
      3. Related to federal interest in certain national projects/programs
      4. Other constitutional provisions
      5. Look to see if there’s something coercive about the way the spending is set up
    2. South Dakota v. Dole
      1. Statute: 23 U.S.C. 158 directs Sec. of Trans. to withhold 5% of fed. Highway funds from states who don’t impose 21 yr. age limit on purchasing/drinking alcohol
      2. Holding: Act is Constitutional following spending power analysis:
        1. Rule: Congress may attach conditions incidental to receipt of federal funds under Spending Power:
          1. to achieve broad policy objectives in the general welfare
            1. preventing underage drinking is in the general welfare so underage kids don’t cross state lines
          2. The conditions are not ambiguous
          3. There is a relationship between the drinking age and highway funds
            1. purpose of highway funds: interstate travel
            2. purpose of uniform drinking age: interstate travel
          4. 21st amendment not a constitutional limit
            1. Congress isn’t directly regulating state drinking laws
            2. This is indirect achievement of objectives Congress can’t achieve directly (no problem)
          5. The pressure from this particular spending condition isn’t large enough (percentage-wise) to be coercive
  • Dissent:
    1. Law not reasonably related to expenditure of fed. funds
      1. Age 21 too attenuated to be “reasonably related” to interstate highway construction
    2. Attempt to regulate state sale of liquor (which is a state power)
      1. This is too much of a legislative act (which it doesn’t have the power over) and not enough of a spending requirement (which it does have power over)
    3. Problem 2: mandatory ID cards
      1. Statute: Congress wants all citizens to carry ID card w/ person’s name, DOB, ID number, and microchip.
      2. 4 proposed alternatives:
        1. State ID card initiative: states must issue the ID cards to residents, with option to alter drivers’ licenses to comport
          1. Government:
            1. it’s not commandeering:
              1. distinguish Printz and New York
              2. it’s ministerial work because you can just alter already-existing cards
            2. Anti-
              1. it’s commandeering
                1. states have to carry out this policy
                2. sometimes it will require a lot to change all the info and get all the required info on
              2. National ID Card Act: under ICC Congress requires people residing in US to obtain ID card from fed. gov’t b/c the fear of terrorism has caused adverse effects on national econ. and these cards will fight terrorism
                1. Government:
                  1. WickardRaich aggregation principle
                    1. in the aggregate it would substantially affect interstate commerce if people didn’t have these cards b/c people will feel safer to participate in national econ.
                  2. not a purely local issue b/c people staying home is adversely affecting national econ.
                2. Anti-
                  1. Lopez
                    1. gov’t piling inference on inference to achieve its policy
                  2. Morrison
                    1. fear of travel creating an economic effect is too attenuated
                    2. no substantial econ. effect
                    3. no rational basis connecting ID cards w/ fear of terrorism

4.   Highway Antiterrorism Funding Act: to make sure highways can withstand a terrorist attack, Congress will appropriate funds for repairs and improvements, and states who don’t issue ID cards will loose 20% of funds

  1. Government
    1. Spending Clause analysis:
      1. providing evacuation routes is general welfare
      2. conditions are clear and unambiguous
      3. issue is related to federal interest
      4. no other const. bar
      5. 20% isn’t coercive
    2. Anti-
      1. 20% is a coercive measure
      2. the connection b/t the ID cards and anti-terrorism on highway seems more attenuated than Dole
    3. Peace Through Security Act: Congress requires all residents in US to obtain ID cards b/c necessary and proper for Congress to do so
      1. violates 10th amendment
        1. Congress can only use “necessary and proper” to carry out valid Congressional goals
        2. Congress can only carry use necessary and proper clause to carry out enumerated powers
          1. McCulloch
        3. State Autonomy Limits on Treaty Implementation
          1. Constitutional Basis
            1. Supremacy Clause: treaties are supreme law of land
            2. Structure: 2/3 of Senate ratifies treaties
          2. Issues:
            1. Does Congress have power to implement treaties without any other source of power?
            2. Is implementation of treaties limited to the enumerated sources of regulatory authority granted to Congress under the Constitution?
          3. Missouri v. Holland
            1. Statute: 1918 Migratory Bird Treaty Act, based on 1916 treaty b/t US and GB to protect birds migrating b/t US and Canada, created closed seasons. Each country’s legislature was to make laws to carry out treaty, so US prohibited killing/capturing/selling birds.
            2. Issue:
              1. Does this Act infringe on rights reserved to the states?
  • Holding: Statute valid
    1. Because treaties are supreme laws, unless the treaty is invalid any acts implementing the treaty are valid as necessary and proper measures
      1. treaties invalid if they infringe on Constitution
        1. can’t diminish state powers
      2. here strong national interest in diplomacy outweighs state’s minor interest in this area
      3. no prohibitions in Const.


  • When are states acting too much to interfere with national matters that are relegated to Congress?
  • if it’s a federal statute it’s NOT DCC
  1. Dormant Commerce Clause
  2. Issue:
    1. If Congress has not acted to regulate a certain matter of state/interstate commerce, has the state by virtue of its action interfere with interstate commerce?
    2. if Congress has not acted, the Constitution reserves that regulation to federal control
  3. Analysis:
    1. 2 lines (always analyze under both)
      1. Actual discrimination:
        1. Does the state action discriminate against interstate/out of state commerce?
          1. facially
            1. state statute specifically says it will treat state one way and out-of-state differently
          2. purpose
  • means
    1. preventing business from leaving state
    2. imposing extra fees on out-of-state business
    3. giving local businesses grants to compete
  1. effect
    1. effect places burden on interstate commerce
  2. If yes, strict scrutiny
    1. legitimate state objective?
    2. least discriminatory means?
  • (burden of proof on the state)
  1. Favors challenger
  1. Undue Burden test
    1. if the action does not discriminate, does it pose an undue burden on interstate commerce?
      1. balance burden on interstate commerce vs. legitimate local benefit
        1. does the burden clearly exceed the benefit?
        2. safety “exceptions”?
      2. presumption of validity
    2. Qualify for Market Participant Exception?
      1. If law would be struck down under actual discrimination or undue burden, is it nevertheless upheld because that state is acting like a private business?
        1. state owns and operates business
          1. look for state ownership of what’s being sold/controlled
          2. make sure state isn’t placing conditions on purchase or sale of goods that go beyond immediate transaction
        2. Theory: state not being protectionist b/c state is using tax dollars to assist taxpayers
      2. Actual Discrimination Cases:
        1. Philadelphia v. New Jersey
          1. Statute: bars out-of-state trash from being placed in NJ landfills
          2. Issue: does this statute discriminate against out-of-state waste?
          3. Defense: NJ claims statute is part of police powers
            1. regulating health
          4. Holding: Statute unconstitutional
            1. this law is discriminatory by face and by means
              1. easy to see here, it obviously treats out of state trash differently than in-state
            2. court distinguished “quarantine” cases
              1. movement of the waste doesn’t create health risks
              2. NJ would’ve had to show there was something uniquely noxious about out-of-state waste
            3. even if there’s a legit purpose (health) this must also be the least discriminatory means of achieving that ends
          5. Maine v. Taylor
            1. Statute: banned all out-of-state bait fish because they carried a certain parasite that could infect Maine fish
            2. Holding: Statute upheld
              1. The statute DID facially discriminate
              2. But under strict scrutiny it is upheld b/c Maine showed:
                1. out-of-state fish are particularly noxious/dangerous
                2. the absolute ban is the least discriminatory means of protecting in-state fish
  • Hunt v. Washington State Apple Advertising Commission
    1. Statute: NC statute prohibited any label beside USDA stamp, barring Washington state label which had higher standards for health than USDA label
    2. Analysis:
      1. Law discriminated in effect
        1. effect of barring other label meant no Washington apples could be sold, would increase Washington apples’ cost of doing business substantially, and takes away major competition in NC (looks protectionist)
      2. Strict Scrutiny
        1. legitimate state objective?
          1. consumer protection, health
        2. least discriminatory means?
          1. no, because it bars most apples from coming in b/c most are Washington, and the law is written to prefer no label to the Washington label
        3. Holding: Law is unconstitutional
      3. Exxon Corp. v. Governor of MD
        1. Statute: producers/refiners of petroleum can’t also operate retail stations in MD
        2. Analysis:
          1. Law discriminated in effect
            1. possibly, but discriminated against all out of state producers/refiners, but not all refiners were affected
          2. Strict Scrutiny
            1. legitimate state objective?
              1. yes, product of the times, b/c of oil crisis
            2. least discriminatory means?
              1. yes, b/c the burden only falls on a certain class of out-of-state distributors, not on all out of state distributors
            3. Holding: Law is upheld
            4. Impact:
              1. site this case when upholding state law under Discriminatory Effect cases
            5. West Lynn Creamery, Inc. v. Healy
              1. Statute: tax on all milk distributors, but then in-state distributors get a kick back from the revenue generated from the tax
              2. Analysis:
                1. Law discriminated in effect
                  1. the tax is only felt by out-of-state distributors
                  2. the effect of the tax plus the subsidy combined is unconstitutional because it discriminates only against out-of-state producers
  • it makes a quasi-tariff (which is unconstitutional)
  1. Holding: Law unconstitutional, can’t pass strict scrutiny
  1. Hypo:
    1. Statute: prohibits corporations from owning farm in NB unless it is a family-owned corporation, and the family member must reside/engage in daily labor on the farm
    2. Analysis:
      1. Discriminatory?
        1. not facially
        2. but in effect b/c singular group of in-state people have econ. advantage over out-of-state people for goods that can be transferred over state lines
      2. Strict Scrutiny
        1. legitimate state objective?
          1. preserve culture of rural NB
          2. that’s not legitimate
        2. Law can’t pass strict scrutiny
      3. Undue Burden Cases
        1. Southern Pacific v. Arizona
          1. Statute: limit on the length of trains in AZ
          2. Analysis:
            1. first challenger must show that the law is hurting interstate commerce (burden)
              1. here RR can show that the law has adverse econ. effects
            2. state must at least show a local benefit (benefit)
              1. AZ claims local benefit is safety
            3. Court compares benefit vs. burden
              1. here state local benefit wasn’t sufficient b/c studies showed there were only minimal safety benefits
              2. it looks like the state is being an econ. protectionist
            4. Holding: State law invalid
            5. Dissent:
              1. Court is acting like a super-legislature
              2. State is the expert, Court should defer
              3. Court should only intervene if facially discriminatory
            6. Kassel v. Consolidated Freightways Corp.
              1. Statute: Iowa prohibits double-trucks bigger than 60 feet, while other states allow bigger trucks than that
              2. Analysis:
                1. challenger shows burden:
                  1. here the restrictions on trucks stop movement, slows travel time, and diverts trucks to other routes
                2. State benefit:
                  1. highway safety
                3. Court compares benefit vs. burden
                  1. the safety measures aren’t weighty enough and interferes with commerce substantially, the burden outweighs the benefit
                4. Holding: State law invalid
                5. Dissent
                  1. Court not the expert, shouldn’t interfere
                  2. exceptions should be exercised w/ extreme care, only intervene with blatant discrimination
  • Dean Milk Co. v. Madison
    1. Statute: Madison prohibited sale of milk in Madison unless processed and bottled within 5 miles of Madison, and safety inspectors would regularly inspect plants
    2. Analysis:
      1. challenger shows burden:
        1. excludes wholesome products from other places which in effect burdens interstate commerce
      2. state justification:
        1. ease regulations and inspections of milk products for health reasons
      3. burden outweighs the benefit, and there are alternative less discriminatory measures for achieving the same outcome
    3. Holding: State law invalid
  1. Market-Based Exception cases
    1. South Central Timber v. Wunnikie
      1. Statute: if you buy trees from AK, where AK owns the trees, you must process trees in-state
      2. Analysis:
        1. clearly discriminatory, wouldn’t pass strict scrutiny, but qualify for exception?
        2. Is AK acting like ordinary businessperson?
          1. No, AK not a participant in processing industry, so they are affecting the downstream market
            1. law affects something after the transaction in which AK is directly involved
          2. traditional seller wouldn’t care where trees were processed
        3. To analyze these cases you have to define the market in which the state in involved
      3. *Even if statute qualifies for market-based exception, might fail privileges and immunities
    2. Privileges and Immunities
      1. Tie in to previous section: a regulation can qualify for market-based exception but still fail privileges and immunities
      2. Constitutional Provision:
        1. 4, Sec. 2
        2. “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”
  • people in different states should be treated as welcome guests in other states
  1. states cannot take hostile actions towards out-of-staters, and cannot give preference to people in their own states
  2. applies to citizens, not corporations
  1. What is protected?
    1. protects ordinary civil rights of citizens and commercial activities
      1. ex: right to engage in lawful occupation
    2. rights that are vital to the nation, not mere recreational interests
  • doesn’t cover state benefits
    1. state can deny welfare benefits to out-of-stater
  1. Analysis:
    1. is there discrimination against out-of-staters?
      1. “you have to live in the city/state to get X”
    2. Privileges and Immunities
      1. is the particular interest affected by the law fundamental to protection of interstate harmony?
        1. court especially protective of property ownership, jobs, travel
      2. Did the state/city justify by showing substantial reason for discrimination?
        1. generally: out-of-staters are particular cause of the problem and only way to rectify situation is to reserve jobs for people in the city
      3. Is there a close fit between the regulation and the solution?
    3. Cases:
      1. United Building and Construction Trades Council v. City of Camden
        1. Statute: businesses that contract with Camden must reserve 50% of jobs for citizens who live in Camden
        2. Analysis
          1. Is city treated same as state?
            1. yes because out-of-staters can be affected
            2. out-of-staters don’t have option of voting down the law the way in-state NJ residents could
          2. does discrimination violate fundamental protections of interstate harmony?
            1. no right of out-of-stater to have out-of-state job
            2. public employment not a fundamental privilege
  • but private employers are restricted in how they contract, and freedom of contract is a privilege
  1. substantial reason for discrimination?
    1. remanded, on remand NJ tried to show that out-of-staters are cause of evil b/c people tend to spend money where the live, so they’re working in Camden but spending money elsewhere
      1. not easy to prove
    2. close fit between means used to combat the problem and the problem itself?
  2. Hypo:
    1. Statute: state allows lower tuition for in-state resident
    2. Analysis:
      1. is a fundamental privilege being affected?
        1. education not yet recognized as fundamental
        2. can argue that it affects interstate harmony
  • can argue it’s harder to get a job, which (like Camden) can be a privilege, and say it directly affects interstate harmony
  1. substantial reason for difference in tuition?
    1. in-state residents have paid taxes to the public universities
    2. states would lose benefits if it can’t provide preference for its own citizens
  • need to retain people in the state and educate them and try to make them stay in-state


  1. Political Question Doctrine
  2. it’s not the role of the judiciary to decide political questions, it’s the role of the executive or legislature
  3. always be prepared to answer “why wasn’t this a political question?”
  4. Basic Situation:
    1. parties before the court have live case/controversy, standing, and have met all prerequisites for trying case in federal court, but the Court still may not hear the case if it regards a political question
  5. Roots: Marbury v. Madison
    1. question raised about whether court could resolve case regarding appointment of political officials
    2. Justice Marshall: category of political cases to which no law applies and the matter is solely delegated to political branches
  6. Analysis:
    1. Is it a political question?
      1. matter is textually committed to another branch
      2. lack of standard, no law to apply (policy instead of law)
      3. policy question to be decided by political branches
      4. disrespecting another branch
      5. need to stand firm
      6. cause embarrassment to the gov’t b/c branches are conflicting
    2. if any of the factors is answered affirmatively, then it’s a political question
  7. Cases
    1. Baker v. Carr
      1. Facts:
        1. Baker, a TN citizen, complained the legislative districts in TN were not redrawn in accordance with the TN Constitution and therefore he was deprived of equal protection because his vote was debased
        2. Complaint: political process itself fundamentally flawed
      2. Analysis:
        1. none of the 6 factors are met
        2. this is a matter between judiciary and state action
        3. this isn’t a Guaranty Clause case to be resolved by Congress
      3. Holding: Not a political question so Court can intervene
    2. Nixon v. U.S.
      1. Facts: Nixon accepted bribe and was criminally convicted, he did not resign from his post so he collected salary while in jail, and was subsequently impeached by Senate. A Senate committee held a hearing, collected evidence, and shared it with the whole House.  House impeached, Senate convicted.
      2. Complaint: Nixon said whole Senate should’ve participated in evidentiary hearing, impeachment process invalid.
      3. Analysis:
        1. #2 on list met, because there’s a lack of standard for Court to follow
          1. unclear in Const. how impeachment trials should be run
        2. #1 on list met, b/c text indicates textual commitment for impeachment to Senate
          1. framers didn’t intend judiciary to get involved in impeachment matters
        3. Holding: political question, Court cannot intervene
  • Bush v. Gore
    1. Facts: FL told to stop counting hanging chads, were they allowed to stop?
    2. Analysis:
      1. Court needs to intervene here
      2. this is a state of chaos and Court must solve uncertainty
    3. Dissent:
      1. Constitution clearly indicates process for solving disputed elections, where Congress gets the final say
      2. Court shouldn’t intervene
      3. based on legislative history and intent
    4. Executive Powers
      1. Constitutional background:
        1. II Sec. I Cl. I: “vesting clause”
          1. executive powers vested in a President
        2. II Sec. I Cl. VII: “oath clause”
          1. faithfully execute laws of the US
  • II Sec. II: “Commander in Chief” clause
    1. President is commander in chief of army and navy
  1. II Sec. II Cl. II: “treaty clause”
    1. President can write treaties with advice and consent of Senate
    2. this is a power split b/t Exec. and Legislature
  2. II Sec. III: “take care” clause
    1. President must take care that the laws are faithfully executed
  3. Historical background:
    1. Madison in Federalist #51
      1. separation of powers avoids too much power in one branch
    2. Basic situation:
      1. Court left to determine whether action vested in one branch or if it’s prohibited to another branch
    3. Analysis:
      1. 2 lines of attack
        1. Formalist
          1. strict textual reading
          2. look at text and structure of Constitution
          3. if law deviates from text, strike it down
        2. Functionalist (balancing test)
          1. admittedly action isn’t consistent with text of Constitution
            1. there’s some intrusion on another branch
          2. question: is the intrusion too much?
        3. You have to analyze under both attacks, because you don’t know which way the Court will lean
      2. Executive Powers
        1. Youngstown
          1. Background:
            1. Korean War. During WWII Congress authorized Pres. to seize industrial plants if they were experiencing labor disputes that threatened to harm the war effort.  Power expired 1946.
            2. 1947 Taft-Hartley Act, rejected amendment that would give President power to seize plants during a war
            3. once President acted during Korean War, Congress never intervened/responded, what does their silence mean?
            4. Steel mills strike during Korean War, Truman scared of adverse consequence on war materials and affect on troops
            5. Issues Exec. Order to nationalize steel mills
              1. relies on executive power and commander in chief power
            6. Majority Opinions:
              1. Justice Black:
                1. No express provision gives President emergency executive authority, the power must come from Congress
                2. No Constitutional provision gives pres. this authority
                  1. not from commander-in-chief b/c Pres. can’t take private property to fund/support war
                  2. vesting clause n/a because this action is clearly within Congress’s jurisdiction (can’t aggrandize President’s role)
                  3. Doesn’t matter that other presidents have done this
  • no inherent power, not in text of Const., may not act
  1. Justice Frankfurter:
    1. historical practice doesn’t justify continued practice
    2. the past history hear is not a source for the President to act here
  • no inherent power, history doesn’t justify, may not act
  1. Justice Douglas:
    1. 5th amendment text delegates compensation power to Congress
      1. so Congress, not Pres., is given power to act in this situation
    2. Emergency doesn’t create power
  • no inherent power, 5th gives power to Congress, Pres. can’t act here
  1. Justice Jackson**
    1. 3 categories of Presidential authority
      1. President acts pursuant to Congressional authority
        1. maximum authority
        2. presumption to uphold action
        3. only struck down if action is prohibited by Constitution
      2. President acts in absence of Congressional guidance
        1. twilight area
        2. Congress hasn’t said yes or no
        3. does Pres. have independent power or power concurrent with Congress?
        4. if concurrent power, look at tradition and history to see how other Presidents have acted
        5. fact-specific, no presumptions
      3. President acts in direct contradiction to Congress
        1. President least authority
        2. only has power directly granted under Constitution
        3. presumption to strike down action
      4. Here: #3 applies:
        1. Congress specifically rejected this action because they rejected the amendment to the Taft-Hartley Act
  • President can’t have power to seize domestic property, too dangerous
  1. narrow reading of executive power
  1. Justice Burton:
    1. Congress specifically retained right to grant power to seize, and didn’t grant that power in this situation
    2. President’s actions not ok b/c Congress didn’t grant it
  2. Justice Clark:
    1. emergency not sufficient to invoke emergency powers
    2. there can be times where the emergency does allow invocation of emergency powers
  • Absent Congressional procedure can’t happen here
  1. Dissent:
    1. Inherent emergency power allows President to act
    2. Statutory history shows President does have statutory authority
    3. Totality of the circumstances
      1. Congress was silent even though he asked them
      2. other presidents have done this
  • so he can do it too
  1. Appointment Power
    1. President has power to make political appointments
      1. appointees are officers of the US who exercise significant authority pursuant to US laws
      2. principal vs. inferior officer never precisely distinguished
      3. II Sec. 2 Cl. 2
        1. president has sole power to appoint principal officers, subject to Senate approval
      4. Congress can vest power to appoint inferior officers in anyone
    2. Morrison v. Olson
      1. Statute: Ethics In Gov’t Act of 1978, creates mechanism for AG to seek appointment of independent counsel (IC) through a division of DC Cir. if AG finds “reasonable grounds to believe that further investigation and prosecution” of high level Exec. officer is warranted. IC investigates and prosecutes, to the full extent that DOJ and 2AG can.  IC only removable by AG for good cause.  Morrison appointed as IC to investigate Olson, asst. AG, Olson challenged validity of IC.
      2. Issue: can someone besides the president appoint the IC?
      3. Analysis:
        1. President only has exclusive const. power to appoint principalofficers
        2. IC not a principal position, it’s an inferior officer
          1. IC can be removed by AG, evidence that he is inferior
          2. IC can only perform limited duties
            1. investigation and prosecution up to the point that DOJ can
          3. IC limited jurisdiction
            1. only applies to certain officials suspected of certain crimes
          4. IC office limited in tenure
            1. ends when good cause ends or after investigation is over
  • not dangerous b/c Congress naturally limited
    1. can’t vest appointment power if it would conflict w/ functions normally performed by one branch
    2. past history shows allowance for certain courts
  1. This is a functionalist decision:
    1. act as a whole doesn’t unduly interfere with role of executive
    2. intrusion doesn’t substantially interfere with president’s ability to do his job as President
  2. Dissent (Scalia):
    1. Morrison’s appointment only Const. if
      1. IC is an inferior officer
        1. doesn’t think IC is inferior here
          1. removal of IC doesn’t prove it’s an inferior position
          2. doesn’t think all the reasons given are legitimate or limited as majority makes it seem
  • evidence of subordination not enough to prove inferiority
  1. Congress may vest her appointment in court of law
    1. Congress can’t appoint exec. officers
  • Removal Power
    1. Constitution
      1. executive officers can be removed by impeachment
      2. implications that impeachment isn’t the sole method of removal of exec. officers other than VP and Pres (who can only be removed by impeachment)
      3. Congress can limit President’s removal of exec. officers
        1. Humphrey’s Executor
      4. History:
        1. Myers:
          1. president can remove purely executive subordinates
        2. Morrison
          1. President’s removal powers of a subordinate can be limited as long as limits don’t impede on president’s power to faithfully execute laws
        3. Morrison v. Olson
          1. Issue:
            1. Does Congress’s restriction on AG to remove IC only for good cause impermissibly interfere w/ Pres’s const. appointed functions?
          2. Analysis:
            1. Here, AG has sole power to remove IC, no room for Congressional involvement, but judicial review is available
            2. Test: don’t ask whether IC is a purely exec. position, as whether Congress interfered w/ President’s exercise of exec. power and his duty to faithfully execute the laws
              1. AG’s power to remove only for good cause doesn’t impeded on presidential authority
                1. President’s need to control IC’s discretion isn’t fundamental to the functioning of the exec. branch as to require as MOL that IC be terminable at will
                2. faithful execution of laws can still be ensured b/c an exec. official (AG) can remove IC for good cause
  • In general look for words that introduce balancing test and look for degree of interference w/ core exec. functions
  1. Dissent:
    1. Look at past precedent
      1. Presidential power to remove principal officers w/ purely exec. powers couldn’t be restricted
      2. Presidential power to remove inferior officers who exercised purely exec. powers and whose appointment Congress had removed from usual presidential removal procedure could be restricted if appointment was made by another member of the exec. branch
    2. Original intent
      1. framers could’ve foreseen this and didn’t include an IC in the Const. so it’s not allowed
    3. General separation of powers
      1. Morrison v. Olson
        1. Issue:
          1. does IC as a whole violate separation of powers by unduly interfering w/ role of Exec. Branch through Congressional overreaching?
        2. Analysis:
          1. Is Congress aggrandizing?
            1. no, not trying to increase its own powers at expense of Executive’s
            2. not usurping exec. functions
            3. not disrupting balance b/t branches by preventing exec. from performing its functions
            4. Act gives sufficient control over IC to ensure Pres. performs const. duties
          2. majority basically finds yes, but not so much that it’s offensive (balancing test)
        3. Dissent:
          1. Thinks proper analysis asks:
            1. is conduct of criminal prosecution the exercise of purely executive power?
              1. even majority finds that investigation and prosecution is purely exec.
            2. does statute deprive president of exclusive control over exercise of that power?
              1. yes
              2. Scalia says any affirmative answer to this invalidates the statute
            3. Judicial Branch
              1. Mistretta v. U.S.
                1. Statute: Sentencing Reform Act of 1984, creates Sentencing Comission to make sentencing guidelines. Guidelines are binding on courts, authorize limited appellate review.  Commission is independent but within the judicial branch.  7 members appointed by Pres. w/ Senate advice and consent, and are subject to removal by Pres. for neglect of duty and other good cause.
                2. Issue 1: Does commission violate nondelegation doctrine?
                  1. Majority:
                    1. Congress can use assistance from coordinate branches as long as Congress lays out intelligible principle guiding the party given the power
                    2. Here the delegation was sufficiently specific
                      1. Congress gave 3 goals, 4 purposes, a lot of guidelines
                    3. Issue 2: Does Act violate separation of powers?
                      1. Majority (functionalist approach):
                        1. there can be some overlap amongst branches
                        2. checks and balances more important than separation of powers
  • Test for exec branch: look to see the extent to which a provision of the law prevents the executive from accomplishing its constitutionally assigned functions
    1. look for degree of infringement
  1. Test for judicial branch:
    1. don’t assign judiciary tasks more properly accomplished by other branches
      1. here Commission is an independent body that happens to be located in Judiciary
      2. Court has always recognized exceptions to judiciary’s otherwise limited powers to hear cases and controversies
        1. Rules Enabling Act (F.R. Civ Pro)
      3. no provision of the law impermissibly threatens the institutional integrity of the judicial branch
        1. here judicial independence isn’t threatened
          1. the Commission is accountable to Congress, and members are removable by Exec.
        2. judiciary’s authority not aggrandized
        3. judiciary’s authority not weakened
          1. judges’ role isn’t weakened, their discretion is just limited
        4. it’s ok judges make up the commission
          1. no prohibition on Art. III judges participating in other forums
          2. power is administrative, not judicial
        5. president’s appointment/removal power doesn’t give him too much influence
      4. Dissent:
        1. Nondelegation is a matter of degree
          1. here too much power given away
            1. the guidelines have the rule of law, and nothing gives Congress authority to give agencies power to make such laws
          2. This isn’t consistent w/ framework adopted by framers
          3. shouldn’t blur/blend branch boundaries
        2. Legislative Branch
          1. INS v. Chadha
            1. Statute: Either House in Congress can pass resolution invalidating decision of INS (AG) to permit deportable alien to stay in US. The resolution can be made without debate and without vote.
            2. Issue: Is legislative veto by House unconstitutional b/ cit avoids legislative procedures?
            3. Holding: Yes, legislative veto invalid
            4. Majority: (formalist approach)
              1. This is a legislative Act, so Congress can’t avoid legislative procedures proscribed in Const.
                1. the effect of the Act is legislative
                  1. alters individual’s fundamental rights
                2. this Act doesn’t fall into one of the 4 exceptions in Constitution permitting a house to act alone
              2. a two-house veto would likewise be unconstitutional if it didn’t allow president to review for approval
            5. Dissent: (functionalist approach)
              1. all 3 branches are still involved, just in a different order
            6. Clinton v. City of New York
              1. Statute: Line Item Veto Act gives President the right to cancel out individual provisions of certain statutes after act is passed and after following procedures. This power give to President by Congress.  President ID’s items to cancel and notifies Congress, and notification is effective unless Congress disapproves, in which case bill is returned to President to  be fully passed/rejected.
              2. Issue: violation of separation of powers?
              3. Holding: Yes, line item veto invalid
              4. Majority: (formalist approach)
                1. past practice doesn’t make this practice okay
                  1. in the past President has discretionary spending
                2. silence in the Constitution means the framers didn’t intend to include this type of measure
              5. Dissent: (functionalist approach)
                1. President using his discretion just as he’s always been allowed to
                  1. Silence in the Constitution is ok b/c past actions show as long as president isn’t violating express terms of Const. no violation
                2. Executive Action in Foreign Affairs
                  1. Constitutional Basis:
                    1. Congress
                      1. I
                        1. power to declare war
                        2. deal with pirates
  • raise money to support armies and navies
  1. regulate commerce of foreign nations
  2. power to raise money through duties to provide defense for US
  3. power to call up militia
  • provide/maintain navy, make rules for navy
  1. President
    1. II
      1. commander in chief of armed forces
      2. “reception power” to receive ambassadors and other public ministers
  • vesting clause: exec. power is vested in president so if there’s an implied foreign affairs power then Pres. has it
  1. power to make treaties
  2. “take care” clause to faithfully execute laws
  1. Shared powers
    1. ratification of treaties
    2. advice and consent for appointment of ambassadors
  2. US v. Curtiss-Wright Export Corp.
    1. Issue: did joint-resolution by Congress give president too much power, aka did Congress delegate too much legislative power to President when they authorized ban of sales of arms to countries engaged in conflict?
    2. Holding: No, power naturally exists in fed. gov’t, it’s ok.
    3. Majority: (functionalist)
      1. History
        1. before Const. was ratified states never had power to regulate foreign affairs
        2. states have never at any point had power over foreign affairs
      2. Text
        1. absence in text irrelevant
        2. this power would never belong to the states, it naturally belongs to federal gov’t so it doesn’t have to be expressly listed in Const.
      3. Structure
        1. since powers naturally belong to fed. gov’t, even more naturally belong to pres.
        2. Pres has power over foreign affairs
  • Knows more about conflicts w/ other countries
  1. Pres only official in position to negotiate w/ other countries
  1. Theory:
    1. gov’t has sovereignty regardless of the Const.
    2. but unclear how to defend that certain things were nevertheless written down
      1. ex: fed. gov’t naturally has power to declare war, but in US const. that power was even more specifically given to President
    3. no specific support in Const. for these claims, just inferences
  2. Impact: still good law
  • Dames and Moore v. Regan
    1. Issue: Does President have power to freeze and vacate all claims pending against the Iranian gov’t in US courts at the time to instead be heard by a special tribunal?
    2. Majority:
      1. Functionalist approach
        1. Congress hasn’t expressly disapproved of these actions
        2. history supports these actions
  • falls into Category II under Youngstown
  1. Hamdi v. Rumsfeld
    1. no blank check
    2. cite if arguing to restrict presidential power or for restrictive view of presidential powers
  2. Hamdan v. Rumsfeld
    1. Issue: whether military tribunal is appropriate to try Hamdan
    2. Majority:
      1. these tribunals are not authorized
      2. will not expand authority to include what President did here, this falls into Category 3 of Youngstown
    3. Hypo: War Powers Resolution
      1. Issue: Can President bomb Iran tomorrow using fighter planes w/o Congress declaring war?
      2. No: (Functionalist approach)
        1. Congress can’t have legislative veto (Chadha)
        2. Congress requires President to bring troops back if joint-resolution of Congress
        3. specific objection is the cessation of the war, President has to stop after 60 days unless Congress allows it…this was not allowed in Chadha
      3. Yes: (Formalist approach)
        1. Congress is protecting its own authority to declare war, can’t be backed into it by President
        2. Nothing in Constitution says President can unilaterally decide when to initiate an attack
        3. there are times, emergency situations, when President can act immediately to repel imminent threat (Prize)
        4. so President isn’t losing powers if Congress puts up these limits in the War Powers Resolution


  • .
  1. Substantive Due Process: protecting implied fundamental rights
  2. Constitutional Basis:
    1. 5th Amendment Due Process Clause
      1. “Nor shall any state deprive any person of life, liberty, or property w/o due process of law.”
    2. Privileges and Immunities Clause
      1. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.”
    3. History
      1. Began with judicial review being read into the Constitution in Marbury
      2. Federalism: things left to the states in 10th Amendment aren’t defined
    4. Controversy
      1. the rights Court recognizes aren’t explicitly listed
      2. So Court is striking down laws that majority believes in
  • Court is defining the rights
    1. interpreting legislative intent, legislative history, policy
  1. Analysis:
    1. Standards of Review
      1. Rational Basis (lowest level):
        1. Does gov’t have a legitimate interest?
        2. Does it use a means rationally related to achieving that goal?
        3. presumption of constitutionality
        4. very deferential towards legislature
      2. Intermediate Scrutiny
      3. Strict Scrutiny (highest level):
        1. is there a fundamental right at stake?
        2. if yes, does gov’t have a compelling state interest?
        3. if yes, are the means narrowly tailored to achieve that interest?
        4. presumption of unconstitutionality
      4. Cases
        1. Slaughterhouse Cases
          1. Statute: LA grants monopoly to a certain slaughterhouse to operate its business in New Orleans
          2. Implied right: economic liberty
          3. Holding: statute upheld
          4. Majority:
            1. Privileges and Immunities n/a
              1. P&I in 14th amendment not meant to deal w/ privileges of people w/in their own states, only meant to deal w/ the privileges granted to US citizens
              2. this is a state issue
            2. don’t read 14th amendment as granting sweeping changes
          5. Dissent:
            1. 14th amendment was intended to create sweeping changes and change relationship b/t federal and state gov’ts
            2. there was an aspect of liberty implicated by this law:
              1. right to pursue a calling
              2. should be protected
            3. Impact:
              1. Most times privileges and immunities not used to challenge laws implicating individual rights
              2. Generally this case is highly discredited
              3. But never officially overruled
              4. Led challengers to rely more on due process
            4. Lochner v. New York
              1. Statute: NY state law set maximum hours bakers could work
              2. Implied Right: freedom of contract/selling one’s own labor
              3. Holding: Law struck down
              4. Majority:
                1. Due Process violated
                  1. right to sell labor and to contract is a liberty
                2. So is there a compelling state interest?
                  1. state says this falls under police powers b/c working long hours is a health issue
                  2. Court disagrees, health issue not quite compelling here
                3. Also, not narrowly tailored
                  1. regulation isn’t directly related to the ends its trying to achieve
                  2. regulating labor, not health
                4. Dissent:
                  1. Court too active, choosing particular econ. theory
                  2. States have taken these actions in the past
                  3. liberty means allowing citizens to do as they please so long as it doesn’t interfere w/ liberty of others
                  4. liberty should be defined by traditions of our people and our law
                  5. history doesn’t support this
                5. Impact:
                  1. do not cite
                  2. bad word, considered judicial activism
  • Griswold v. Connecticut
    1. Statute: illegal for married couples to use contraception
    2. Plurality:
      1. defines right: marital privacy
        1. this privacy right found in penumbras of the bill of rights
      2. Impact:
        1. right gets more broadly interpreted as right of couples to use contraception, doesn’t seem to be limited to married couples (b/c of Roe)
      3. Roe v. Wade
        1. Statue: banned abortions
        2. Majority:
          1. defined right: right of woman to make determinations regarding reproduction, fundamental right, stems from privacy
          2. Framework:
            1. woman has constitutional (fundamental) right to abortion pre-viability (1st trimester)
            2. state may regulate abortions if they are protecting maternal health (2d trimester)
  • state has legitimate and compelling interest in protecting the potential life of the baby and can ban abortion, except where necessary to preserve mother’s health
  1. Planned Parenthood v. Casey
    1. Statute: regulated abortions, required notifications
    2. Majority:
      1. defined right: privacy
        1. protects right to abortion prior to viability
      2. creates new test: Undue Burden Test:
        1. state can restrict abortions but cannot ban it prior to viability
        2. make sure the restriction doesn’t cause an undue burden on the mother
          1. 24 hour waiting period and informed consent can be upheld (state interest in maternal health and potential life achieved without posing an undue burden on the mother)
          2. but spousal notification struck down because it’s an undue burden that will prevent a proportion of the female population from exercising their right
        3. Moore v. City of East Cleveland
          1. Statute: restricted who defined “family” in terms of who could live together
          2. Plurality:
            1. defined right: right of family to live together
            2. family is a broader unit who share a history and tradition and this is protected by the Constitution
            3. law struck down
  • Lawrence v. Texas
    1. Statute: bans sodomy
    2. Majority:
      1. overrules Bowers
        1. Bowers had defined right as right to homosexual sodomy
      2. here court defines right more broadly—right to privacy within one’s home, but unclear exactly what right the court identifies
      3. analysis ambiguous as to whether court used strict scrutiny or rational basis
  • Cruzan v. Missouri Department of Health
    1. Statute: there must be clear and convincing evidence that person would want to be removed from life support
    2. Majority:
      1. this is just a broad liberty interest
      2. a competent person can refuse medical treatment
      3. but there is no fundamental right so this passes rational basis:
        1. legitimate state interest in protecting life, protecting person from bad decisions that are irreversible by the family
        2. means are reasonably related to achieving the interest
      4. Washington v. Glucksberg
        1. Statute: bans physician-assisted suicide
        2. Majority:
          1. defined right: it’s merely a liberty interest
          2. because there’s no fundamental right this must only pass rational basis test:
            1. legitimate state interest in protecting citizen’s lives
            2. means are rationally related to achieving that interest

JUSTICIABILITY [Doctrines Limiting the Scope of Judicial Review]

  • Before the Court gets to the merits of the case, must make sure there is a proper case or controversy before the Court
  1. Standing
    1. Person seeking federal jurisdiction has burden of proving they have standing, that this is a cas
    2. Analysis:
  2. Injury?
    1. party seeking review must be among the injured
    2. injury can’t be common to a vast mass of individuals
  • must prove invasion of legally protected interest
    1. that is concrete and particularized
    2. actual/imminent, not hypothetical
  1. Causation?
    1. causal connection between injury complained of that is fairly traceable to challenged action
  2. Redressability?
    1. it is likely the injury will be redressed by a favorable decision
  3. Ripeness
    1. case is filed too soon because the injury hasn’t happened yet
      1. the threatened gov’t action has yet to occur so individual rights have not yet been injured
      2. there’s not yet a case/controversy
    2. Analysis:
      1. fitness for resolution
        1. you don’t need more facts, this is a matter of law so the court can decide it now without waiting for more info
      2. hardship to party of waiting
        1. look to see whether, if plaintiff is forced to wait, there will be a chill on their rights, or an undue punishment, or undue burden on their style of life
      3. Mootness
        1. case is filed too late, so whatever injury might’ve happened has already resolved itself and there’s nothing the court can do to right the situation
        2. Exceptions:
          1. voluntary cessation
            1. when gov’t waives the policy for an individual plaintiff rather than letting the case go to court so that the court doesn’t have opportunity to decide on constitutionality of the policy
            2. court won’t allow the states to circumvent their authority
          2. capable of repetition
            1. case is moot because the injury is too short in duration to last until the court has time to hear it
            2. classic examples: pregnancy, terminal illness
            3. so if there’s a good chance the injury will be mooted out before it gets to court, the court will decide the case despite the mootness
          3. Political Question
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