Con Law II Higginbotham

8/17/2019 Con Law II Higginbotham

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I. Issue Statements:i. Who is being deniedii. Who is doing the denyingiii. What is being deniediv. What is the relevant rule?

1. if Court - Article III2. if Executive - Article II3. if Legislature - Article I4. if Equal Protection - 14th Amendment (If State), 5th Amendment (if Fed)5. if Due Process - 14th Amendment (If State), 5th Amendment (if Fed)

I. THE ROLE OF THE SUPREME COURT IN THE CONSTITUTIONAL ORDERA. BASIC FRAMEWORK

i. Separation of Power: The first three articles divide the constitution into 3 branches. Eachbranch has separate powers, but can check the power of the other branches. Power andduties are separated, checked and balanced.

a. Article 1: The Legislative Branch (Congress)b. Article 2: The Executive Branch (The President)c. Article 3: The Judicial Branch (Courts)

ii. Judicial Review:a. MARBURY v. MADISON (1803):

• Facts: Marbury was appointed as a justice of the peace by lame-duck PresidentAdams, who was trying to flood courts with federalists. The formal commission letterhad not been delivered when Jefferson took office, and Jefferson refused to release it.Marbury brought suit to compel Madison (Sec. of State) to deliver the commission. Hefiled a request for a writ of mandamus directly with the Supreme Court, claiming thatthe Judiciary Act of 1789 gave the Supreme Court Original Jurisdiction over such writs.

• Issue (Substantive): Was Jefferson!s denial of the commission to Marbury a violation

of Marbury!s rights under Article III?• Issue (Procedural): Whether the court issuing a writ of mandamus ordering Madison

to deliver a judicial commission to Marbury would violate Article III?• Holding: The Judicial Act of 1789 (which created the position to which Marbury was

appointed) gives SCOTUS original jurisdiction over legal disputes. This contradict!sthe judicial limit of SCOTUS power in Article III. A statute cannot contradict theConstitution, which is the supreme law of the land. Therefore, the Judicial Act of 1789is unconstitutional, SCOTUS cannot hear the case, and the position that Marburysought dies with the Act.

• Rule: Violation of legal rights are subject to judicial review

• Exception: Executive branch violations political in nature are not subject to judicialreview (Presidential acts of discretionary authority, acts relating to the nation (ratherthan the individual))

b. MARTIN v. HUNTER!S LESSEE (1816):• Facts: Land ownership dispute in VA state court, went through state appeals court to

SCOTUS. SCOTUS ordered Va courts to reverse their decision, VA refused, claimingSCOTUS does not have power over state decisions.

• Holding: Art. III grants supreme court appellate jurisdiction for cases originating in

OUTLINE: CONSTITUTIONAL LAW - HIGGINBOTHAM

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state courts. State sovereignty is not isolated from federal sovereignty.iii. Separation of Federal and State Power

a. Article IV: States! Rightsb. Article VI: Federal Power

iv. A Constitution that Binds the Future

a. Article V: Amending the ConstitutionB. HISTORY & THEORYi. Articles of Confederation: The first constitution of the USA (1777-1789). It!s primary

purpose was to give some unification of the states, while keeping the states as the mainsources of power. There was no executive or judicial branch, and an absence of federalauthority. Nationalists argued it was too weak to form an effective government.

ii. Federalism: A system in which the power to govern is shared by federal and stategovernments. Federalists desired a federal government that was strong enough to lead, yetseparated enough to not give any branch absolute power. The goal was to form a largefederal gov!t structure that has power over the states, but minimizes overpowering factionsthrough separation of powers via branches, checks, and balances.

a. Values of Federalism:• Efficiency: States can respond to local issues, fed. can respond to national issues.• Promoting Individual Choice: Certain national interests are protected, but citizens

can move from state to state & choose what state policies suit them best.• Encouraging Experimentation: Decisions at the local level can show the benefits

and drawbacks of a decision before it is introduced nationally• Promoting Democracy: State and local gov!t allow people to participate directly in

their gov!t, making them more active citizens• Preventing Tyranny: The states are more prone to “mob rule”, which can lead to the

violation of civil rights. National gov!t puts a check on state gov!t!s power.iii. Anti-Federalism: A system in which the states have a stronger power to govern than the

central federal government. Encourages local and individual democracy rather than aheterogenous representative central government. Concerned that a large federal gov!twould cause disparities in wealth and land ownership.

C. SOURCESi. Textual Source:

a. DISTRICT OF COLUMBIA v. HELLER (2008):• Facts: DC enacted a handgun ban to control handgun violence. It was argued to be in

violation of the 2nd Amendment of the Constitution.• Holding (Scalia): The spirit of the 2nd amendment is to allow citizens to own guns to

protect themselves, not just for militia. The preamble of the 2nd amendment does notplace a limit of the purpose of the amendment. (1 textual interpretation)

• Dissent (Stevens): The 2nd amendment protects the right to own guns only forpurposes of militia (as stated in the preamble). Therefore, self defense rights are notinalienable and can be regulated. (A different textual interpretation)

b. EX PARTE MCCARDLE (1869):• Rule: The language of the constitution is pretty clear, and pretty broad. Congress can

limit the jurisdiction of the court under article 3 powers to limit appellate jurisdiction, if itsees fit. Court did not describe if there are specific limitations, and still does notdescribe that to this day.


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ii. Reinforcement of Democratic Process Source:a. McCULLOCH v. MARYLAND (1819):

• Facts: State of MD attempted to levy a tax upon the US Bank, US Bank did not pay.State argued they had a right to tax the US Bank (or alternatively that the bank itself isunconstitutional because it infringed on the rights of the states). US (Federalists)

argued that they are permitted within the constitution to create a bank, and the Statesdo not have the power to tax a federal institution.• Issue: Does the state of MD requiring McCulloch (Fed Bank) to pay the MD tax violate

the Supremacy Clause of Article VI of the Constitution? Does the Federal legislaturehave the power to create a bank under the Necessary and Proper clause of Article I ofthe Constitution?

• Holding: 1. Reinforcement of Democratic Process Interpretation: The federal gov!t has the

supreme sphere of action and governs the states. Thus, the states cannot tax theunion. One state cannot detriment the citizens of another state.

2. Textual Source of Interpretation: The federal power to create a bank is implied in the

Constitution. Federal powers do not need to be expressly stated, and can be impliedwhen the word “express” is not used. Congress has the power to create legislationthat is “necessary and proper” (Article I), this clause should not be read too literally.

iii. Natural Law: Standard of Review would be based upon natural law principles, not theconstitution (Calder v. Bull)

D. CASE OR CONTROVERSY REQUIREMENTSi. Summary: The SCOTUS is only permitted to make opinions on cases that are brought

before it through the court system. The SCOTUS may not strike down a legislative provisionmerely because it is unconstitutional, it must be questioned through an actual controversy.

a. Article III, §2: Only jurisdiction over those matters...• In which there is an actual dispute involving the legal relations of adverse parties, AND

• For which the judiciary can provide some type of effective relief.b. What purposes does this requirement serve?

• Judicial Restraint: Keeps the court from having unfettered power to control anotherbranch of gov!t.

• Concrete Disputes: Ensures that issues will be resolved in the context of “real life”disputes, rather than hypothetical speculative issues that may or may not arise.

• Ensures Gov!t Autonomy: Bars those bystanders who attempt to challenge a lawsolely because of personal political opinion.

• Correcting Legislature!s Mistakes: Court judgement comes after a period of testingof a law by it actually working in society. Thus, the court reviews actual consequencesof the legislature!s actions

ii. Advisory Opinions: Advisory opinions to the executive / legislative branch areunconstitutional - there would be no case or controversy.

iii. Ripeness: Cases that are premature cannot be heard by the court. The vague anticipationof harm is premature. Harm must be imminent or actually occurring.

iv. Mootness: Cases with stakes that have been subsequently resolved cannot be heard bythe court.

v. Standing: Does the plaintiff have a personal stake in the outcome of an otherwise justiciable controversy? Are the right parties before the court?


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a. Article II Required Standing:1. An injury-in-fact (Bodily harm, economic harm, violation of a right)

• A mere ideological interest does not qualify as standing• SIERRA CLUB v MORTON: Sierra Club tried to block a park from building a

recreation area. Court denied standing, claiming that the Club suffered no injury

itself. The group and its members did not use the site.• Organizational Standing: Can only get standing (1) if the organization suffers injury-

in-fact, or (2) if a member or members suffer injury-in-fact that is germane to theorganization!s purpose.

• LUJAN v DEFENDERS OF WILDLIFE: A person interested in wildlife conservationdoes not have a recognizable harm when legislation threatens to further endangera species. (However, a person who works with that species in the specific areatargeted by legislation may have a recognizable harm)

• “Some day” intentions are not strong enough to show imminent harm (“Some day” Iwant to visit this national park, therefore failing to protect the animals in in woulddamage my experience when I go).

2. Causation / Nexus: A connection between the injury and remedy• “Fairly Traceable” to defendant!s conduct (Proximate Cause). Cannot be

established through conjecture, but must be premised on specific and plausibleallegations of fact establishing a tangible causal link between plaintiff !s injury anddefendant!s conduct. A connection between injury and remedy cannot be toattenuated.

b. Self-Imposed Prudential Standing: Practicality and Common Sense.1. injury be in zone of interests protected or regulated by statutory/constitutional

provision at issue2. Injury not be too generalized (not shared by most or all citizens)

c. Rule against Third Party Standing: A plaintiff may not litigate for a third party !s rights,

that third party must bring suit itself. A party may only assert his or her own rights.Presumption that the third party can bring suit to protect his/her rights if he/she wishes.• Exceptions:

1. There is a hinderance to the third party!s ability to bring suit, and the plaintiff isclosely related

2. If the party with standing is challenging a law that requires him/her to take actioninconsistent with the rights of the absent third party

3. If the Article III party!s claim involves an overbroad law• ELKGROVE UNIFIED SCHOOL DISTRICT v. NEWDOW (2004):

• Facts: Father of girl who attends public school brought action against pledge ofallegiance with “Under God” being said in school every morning via CA state law.

• Holding: The father cannot bring the suit because the parents ! divorce agreementhad given the mother legal rights to the daughter, so the father was not anappropriate third party to bring suit for a violation of his daughter!s freedom ofreligion rights. The father thus lacked standing.

iv. Political Question: The subject matter is inappropriate for judicial consideration, andshould be decided by Congress or the executive branch. Renders the government conductin question immune from judicial review.a. Six Part Test for determining whether a question is political:


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1. Textually demonstrable constitutional commitment of the issue to a coordinatepolitical department (the issue has been delegated to another branch via theConstitution)

2. A lack of judicially discoverable and manageable standards for resolving it3. The impossibility of deciding without an initial policy determination of a kind clearly for

nonjudicial discretion4. The impossibility of a court's undertaking independent resolution without expressinglack of the respect due coordinate branches of government

5. An unusual need for unquestioning adherence to a political decision already made6. The potentiality of embarrassment from multifarious pronouncements by various

departments on one question.b. BAKER v CARR (1962):

• Facts: Article 4 §4 of the Constitution ( the Guaranty Clause) guarantees a republicanform of gov!t. Tennessee had not re-apportioned it!s voting districts for over 60 years.In that time, mass population relocation occurred in Memphis and Nashville. Bakerargued this diluted those districts! voting power - particularly damaging the Democratic

party!s urban stronghold vs. rural Republicans. He claimed an Equal Protectionviolation. The lower court held that apportioning was a political question, thus could

not be decided by the court.• Issue: Was the lower court!s refusal to hear Baker!s lawsuit challenging Carr!s denial

of reapportionment, appropriate with Article III political question doctrine?• Holding: None of the 6 factors to consider (rule above) are present when reviewed

under Equal Protection, thus there is no political question and the issue can bedecided on it!s merits. If it were reviewed through the Guaranty Clause, it would be apolitical question. The Guaranty clause has an absence of judicial standards (#2).

c. NIXON v. US (1993):• Facts: Federal Judge was impeached, reviewed by Congress for dismissal. Judge

requested review by Judiciary Branch.• Holding: The judiciary does not have jurisdiction over impeachment. The Constitution

grants that power to the Legislative branch, therefore impeachment is a politicalquestion (#1).

d. VIETH v. JUBELIRER (2004):• Facts: Plaintiffs claimed that the defendants gerrymandered the Pennsylvania

congressional districts in an effort to gain political ground, in violation of the 14thAmendment (Equal Protection) and Article I!s “one person, one vote” clause.

• Issue: Whether Vieth could sue Pennsylvania for political gerrymandering under theSupreme Court!s ruling in Davis v. Bandemer holding the issue justiciable as aviolation under the 14th amendment.

• Holding: Political Gerrymandering claims are non-justiciable (over-ruling Davis v.Bandemer). Political divisions are not protected under equal protection, thereforethere is no constitutionally discernible standard in which to judge politicalgerrymandering. “Fairness” is too undefined a standard.

• Rule: A justiciable issue must have a judicially manageable standard to have standing(#2).

e. CAPERTON v. MASSEY COAL (2009):• Facts: Judge did not recuse himself from deciding a case where one of the parties had


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made significant financial contributions to the judge!s electoral campaign. Plaintiffbrought suit, claiming Due Process Clause was violated.

• Holding: If it is found objectively to be unlikely that the judge could be impartial, thenthere are judicially manageable standards to determine and there is not a politicalquestion A case such as the one at bar - where the party was the single highest

campaign donor by more than double - is such a case.f. BUSH v. GORE (2000):• Facts: After 2000 election, Florida issued a recount for certain districts. The recount

needed to be complete by the Dec. 12th “safe harbor” deadline (in 5 days). SCOTUSissued a stay of the recount one day later.

• Issue: Whether the denial by the FL Supreme Court to certain voting districts of avoting recount violated the Equal Protection Clause, and if so, is there a remedy thatthe SCOTUS can provide?

• Holding: Voting dilution is not a political question. There is no standard for how tocount votes, thus the current recount violates the 14th amendment and isunconstitutional, thus the recount cannot continue in its current state. However, the

time limit makes an accurate recount impossible. There is no remedy that the courtcan provide. Thus, the previous count will be the official count, whether it iscompletely accurate or not.


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II. THE DISTRIBUTION OF NATIONAL POWERSThe Constitution creates a Gov!t of separate and enumerated powers. These two issues createtension, particularly when one branch tries to exercise an enumerated power that conflicts with theseparation of powersA. JUDICIAL REVIEW

i. Separation of powers cases have been reviewed by the courts. They are not, as a matter ofcourse, political questions. Since the court!s jurisdiction is discretionary in large part, thereare relatively few cases. This is for three reasons:

1. feeling the branches can take care of themselves, informal processes of political checksare sufficient safeguards

2. it!s difficult to achieve an authoritative resolution, particularly when you have two co-equal branches of gov!t fighting about who has the power and who doesn !t.

3. the court recognizes that often times it can make things worse.Much of the law, therefore, in this area of distribution of national powers, is made fromhistorical practice, informal and formal present practices and practical assessment.

B. EXECUTIVE AUTHORITY:

i. 2 Sources of Presidential Power:a. Article II of Constitution (Express or Implied)

1. Commander-In-Chief Power2. Executive Clause Power3. Take Care Clause: Limited to the carrying out of the powers and policies of Congress

b. Congressional Statute (Express or Implied)• Factors to determine implied authority:

1. Legislation that suggests such authority in similar circumstances2. Historical Precedent. (On previous occasions, congress has authorized such

power, or has acquiesced when the President has exerted such power)3. No Congressional Disapproval (No specific legislation that says the president

cannot make a tribunal)4. If there is a real foreign affairs issue, the president!s authority is much broader

• The presence of all of these factors automatically grants implied congressionalauthority. If less than four exist, it is unclear (sliding scale)

c. YOUNGSTOWN SHEET & TUBE v. SAWYER (The Steel Seizure Case) (1952):• Facts: On the eve of a national steel mill strike, President Truman issued an order to

seize the steel and operate them under government control. He believed that, steelbeing necessary for the production of weaponry, not doing so would put the Americanwar effort in Korea in jeopardy. Thus, he believed he had the power to seize throughthe Commander in Chief Clause, the Executive Power Clause, and the Take CareClause. The mills immediately requested and were granted a TRO.

• Issue: Was the lower court!s denial to President Truman to seize the mills consistentwith Article II Executive Powers?

• Holding (Black): Seizure of property is law making under the eminent domain clause,and not within Executive authority. Such an act can only be permitted if Congresspasses legislation which allows it. The act is contrary to Congressional will. Trumandoes not have the executive power to seize the mills. (mechanical evaluation, narrowinterpretation - OLD METHOD)

• Concurrence (Jackson): The evaluation of executive authority should be done via a


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less mechanistic sliding scale. (CONTEMPORARY METHOD)d. DAMES & MOORE v REGAN (1981): (Functional Analysis)

• Facts: During the Iranian Hostage Crisis, President Carter invoked the InternationalEmergency Economic Powers Act (IEEPA) in order to freeze all transfer of propertyfrom the US to Iran. Dames & Moore filed suit with Iran after this, because the US!s

actions caused Iran to violate a business contract. As part of the hostage negotiations,President agreed that all federal court cases involving Iran would be rejected and have“no legal claim” (litigation terminated, claims tribunal set up). He claimed this powercame from the IEEPA. The hostages were released the day Reagan was inaugurated

• Issue: Was the denial to Dames and Moore by the lower court!s decision in favor ofRegan (Treasury Secretary), canceling litigation against Iran, was this denialconsistent with the President!s authority under Article II?

• Holding: President Reagan acted within his scope of power. When the Congresspassed the IEEPA and the Hostage Act, some powers were expressly stated andsome were implied. Congress gave the President broad authority to make foreigndecisions in times of crisis. Just because the suspension of claims was not an

explicitly stated power does not mean that Congress disapproved of the President!sact. The acts “invite” the President to make independent decisions to assist the

country against foreign acts of aggression.e. US v. CURTISS-WRIGHT CORP (1936)

• Facts: Defendant was indicted for selling machine guns to a hostile gov!t (Bolivia), inviolation of a joint resolution between Congress and the President which granted thePresident power to prohibit the sale of arms in that region. Trial court found the jointresolution to be unconstitutional, because the President does not have such power inthe Constitution.

• Issue: Was the lower court!s denial to the president to prohibit weapon sales in conflictcountries consistent with the executive powers in Article II of the Constitution?

• Holding: The president!s powers are only limited by the Constitution in regard to his

relationship with domestic government affairs. Internationally, The President is thesole representative of our country, and is not bound by the same limits of power. TheJoint Resolution, therefore, is not in violation of the Constitution.

• Rule: Congress has broader power to delegate power to the president when foreignaffairs are at hand, than when there are purely domestic issues. President!s power isgreater in the foreign affairs arena.

C. EXECUTIVE AUTHORITY AND FOREIGN AFFAIRS:i. Power of Treaty: The President has the power to make treaties, but the Senate (not House)

must ratify them (Article II §2, Clause 2). However, the President has the power to makeexecutive agreements (non-treaty international compacts) without Congress! approval.

a. Self-Executing Treaty: One that establishes enforceable domestic law without furtheraction by Congress (binding domestic law)

b. Non-Self-Executing Treaty: One that requires legislative implementationc. How do we know which treaties are self executing? Whether self-executing

language is used in legislation, or the Intent of Congress if there is not explicit language.Only Congress can provide such intent.1. MEDELLIN v. TEXAS (2008):

• Facts: The US had signed an international accords that required that foreign


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nationals be informed of post conviction rights and gave the ICJ jurisdiction todecide any disputes regarding the accord. In a prior case, the ICJ held that the USmust review post-conviction accord violations, regardless of state and federal laws.Medellin claimed he had not been informed of his post-conviction rights. PresidentBush ordered a state review, pursuant to the accord. He claimed his authority to

uphold the accord came from the Constitution.• Issue: Does the denial to Medellin by the lower court for post-conviction relief,

pursuant to Pres. Bush!s enforcement of a post-conviction treaty obligation, adenial of the President!s authority under Article II?

• Holding: The president does not have the authority to demand judicial review. ThePresident may make determinations regarding international treaties, but does nothave the right to make domestic law regarding those treaties. The presidentcannot order states to review cases, such a law must come from legislature.

ii. Warmaking Authority: The President has the power to defend from sudden attack (whichmay ultimately be the decision to go to war) (Art. II §2: Commander-in-Chief Power), butonly Congress has the power to declare a war of aggression (Art. I §8 Cl, 11: Power to

Declare War). Congress may give that power to the president through legislation (as it did inthe war in Iraq)a. Deference: The Courts generally give the executive a high level of deference in it !s war-

making decisions. There is a presumption that the gov!t is correct, the plaintiff has anuphill battle to prove otherwise.

b. War Powers Resolution: Attempt to re-established limits on Presidential war-makingauthority. Nuclear warfare created a sense of immediacy, giving Pres. power to declarewar quickly under perceived threats. Korea & Vietnam were not made by CongressionalDeclaration, and were very unpopular. WPR required a statutory declaration or anemergency by an attack on the US. President should consult w/ Congress beforeintroducing troops, or a report within 2 days of issuing troops and call off the troops

within 60 days if Congress disapproves.c. In Practice: The reality is that the President is basically the prime war-making authority.

1. HAMDI v RUMSFELD (2004):• Facts: Hamdi was an American Citizen who had gone to Afghanistan two months

before Sept. 11, he claimed as a relief worker. After the invasion, Hamdi wasarrested in Afghanistan as a suspected terrorist. He was brought to the US anddetained indefinitely with no charges or proceedings. He brought a habeas corpussuit, claiming as a citizen he had a right to Due Process. Bush claimed he had theauthority to detain Hamdi through the Authorization of Use of Military ForceResolution (AUMF), which gave the Pres. authorization to use “all necessary andappropriate force against... persons” associated with 9/11.

• Issue: Was the denial to Hamdi by the lower court based on a grant of presidentialauthority through the AUMF, was that denial consistent with the president!sauthority under Article II?

• Holding: The AUMF gives the Pres. the power to detain citizens indefinitely if theyare believed to be terrorists involved in the 9/11 attacks, but this power is anunconstitutional 14th amendment violation. though the president has the power tocurtail standard criminal procedure through the AUMF, a bare minimum of DueProcess is required. The citizen must be given the factual basis of his classification


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as an enemy combatant and given a fair opportunity to rebut such charges before aneutral decision-maker.

D. SEPARATION OF POWERS AUTHORITY AND DOMESTIC AFFAIRSi. Executive Privilege

a. RULE: Executive Privilege under Article II Functional Balancing Test

1. President!s need for candor v. administration of justice

• Candor is not permitted unless there is a military, diplomatic, or national securityissue at stake.

b. Express Privilege: Article I §6: Congress has an express privilege against prosecution.The Executive does not.

c. Implied Privilege of Privacy: 1. The president has an implied privilege of privacy in communications. Rationale:

• Military, Diplomatic, and national security secrets require confidentiality• Privacy allows the people who work for the president to speak candidly without fear

of consequence. This allows the president to get the most honest information, andultimately be a more effective leader

• Separation of powers principle would be jeopardized. Political enemies inCongress could infringe upon president!s powers, usurping these powers for thelegislature.

2. The presidential implied privilege of privacy is not absolute. The court uses abalancing test between the general presidential privilege vs a competingconstitutional interest if one exists.

3. UNITED STATES v NIXON (1974):• Facts: Tapes and files regarding the President!s involvement in Watergate were

subpoenaed by the presidentially appointed special prosecutor (Cox). Nixon filed amotion to quash the subpoena, claiming 2 things: 1) The Court lacked jurisdictionbecause the matter was an executive branch issue (separation of powers), and 2)

Through the constitutional separation of powers, the president has either (a) abroad claim of privilege of confidentiality over judicial review, or (b) at least a claimof privilege over subpoenas.

• Issue: Was the lower court!s denial of President Nixon!s motion to quash asubpoena requiring discovery of confidential materials, thus refusing Nixon!s claimof presidential privilege, was that denial contrary to the constitutional Separation ofPowers Doctrine?

• Holding: The subpoena is valid. The Separation of Powers does not intend toallow the branches to work in complete independence, thus the Judiciary has

jurisdiction over Executive matters (as shown through Judicial review). Althoughthe president may enjoy a general privilege of confidentiality, in the event of a

specific criminal case, the information regarding the particular pursuit of justiceshould not be kept from the court. The Constitution also protects the right to justice,Thus, the importance of the two rights must be weighed. Value of confidentiality v.administration of justice. There would not be significant harm to the value ofconfidentiality, but there wound be significant harm to the administration of justicewithout disclosing the tapes.

4. JONES v CLINTON (1997): President claimed that a civil suit will distract his from theimportant job of leading the nation, thus executive privilege should excuse him from


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the case. Holding: In balancing the presidential privilege v an individual!s pursuit of justice in a civil suit, the pursuit of justice wins. The court will bend over backwards toaccommodate the President!s schedule, but they ill not obstruct justice. TheExecutive privilege only extends to those things done under official conduct. Actionsprior to election or outside the scope of the Presidency are not privileged.

i. LEGISLATIVE AUTHORITYa. Formalists: Believe that the separation of powers doctrine is governed by relativelyclear rules that demarcate separate spheres of gov!t authority

b. Functionalists: Believe in a more fluid approach that allows for overlap and is receptiveto challenging boundaries to deal with changing situations.

c. Standard for Determining when Overlap of Authorities is Problematic: If a branchdoes not having control over how it!s primary function is performed (overlap that impairsor impedes the functioning of another branch), there are separation of power issues

d. Executive Control of Law-Making Power1. The reality today is that administrative agencies under executive control have

considerable law-making power

• Allows for insulation of political fall-out in Congress• Efficiency - delegate for activities they know nothing about.• Downside: Increases Executive authority by delegating duty

2. Non-Delegating Doctrine: Extremely limited, only 2 limitations now survive:• Congress cannot delegate to private groups• If it delegates, it must provide adequate standards for guidance

d. Legislative Process:1. Legislature!s main function is to pass laws. Article 1 provides bicameral legislation

with presidential ratification. Even though this procedure is difficult, inefficient, andslow, it is required by the court.

2. Exceptions to this process: initiating impeachment (Congress), impeachment trials

(Senate), approving Presidential appointments(Senate), ratifying treaties (Senate)3. What constitutes law-making? Look at the character and effect. (Substance, not

procedure)4. INS v. CHADHA (1983):

• Facts: Chadha!s student visa expired. The INS judge ordered his deportationsuspended, and the Attorney General (Executive Branch) agreed. The report of thesuspension was submitted to Congress, who had the power to veto thesuspension. The House vetoed the decision and ordered deportation, but thereport was not sent to the Senate or the President.

• Issue: Did the INS! denial to Chadha to have his case reviewed by both houses ofCongress and ratified by the President before re-adjudication violate the

Constitutional structure of Congressional and Executive functions established inArticle I?

• Holding: Passing a legislative action in only one house of Congress, and withoutPresidential veto review, is unconstitutional. All actions that are of legislativecharacter must go through bicameral approval and Presidential ratification. Thisaction was clearly of legislative character. It altered the legal rights of parties (theAttorney General / Executive Branch as well as Chadha!s legal status). Legislaturecannot change an AG decision without proper review.


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e. Removal Power1. RULE: Removal of Executive Branch Officers

a. Removal of staff violates separation of powers if it impairs the functions of amember of another branch

b. Test: Does it interfere with the function of another branch?

2. Employee Classification: Non-Elected Gov!t Employees are classified in 3 ways -

• Principle Officer: Must be appointed by President. President must have removalpower (Executive Power = Removal Power)

• Inferior Officer: Appointed by Congress (Art. 2, §2, Cl. 2: Appointments Clause), orif the Congress delegates, by the President, Courts, or Heads of Departments.Removal power by president is not required, but the employee cannot be tooinsulated from presidential removal (President must have the power to remove theOfficer!s superior)

• Mere Employee: Generally, no limitations on hiring or removal3. Determining Classification: Determining the amount of authority an Employee has.Factors:

• Nature / extent of the official!s duties, whether they include policy-making functions

• Amount of independence and source of supervision (Is the president a directsuperior?)

• The position!s tenure (continuing, temporary, intermittent, tied to administration)4. Determining Branch: The branch which creates a position is not necessarily the

branch the position falls under. The court looks at what the employees are actuallydoing, and what Congress, the Judiciary and the President thinks they are, to decidewhat branch of gov!t they are.• Determining branch is important. If an employee is found to be a member of one

branch, another branch cannot have removal power over that position. This wouldallow for one branch to have control over another branch. If Congress delegates

an executive power, Congress cannot retain removal power over that position.5. FREE ENTERPRISING FUND v. PUBLIC COMPANY ACCOUNT OVERSIGHT

BOARD (FEF v PCAOB) (2010):• Facts: Via the Sarbanes-Oxley Act, Congress created the PCOAB, which had

broad authority to regulate the stock exchange & oversee the accounting industry.The members of the committee (inferior executive officers) can only be terminatedby the SEC, and only with “good cause”. The president cannot terminate membersof the PCAOB, and members of the SEC can only be terminated by the president“with good cause”. Thus, there is a dual layer of limitations on the president!sability to terminate PCAOB executive branch employees.

• Issue: Does the denial of an injunction to the FEF upholding the S-O Act that

creates/ empowers PBAOC to oversee accounting industry and limits removal ofmembers to good cause by SEC members (whose commissioners! removal is onlyavailable to president by good cause) is that consistent with president!s authorityunder Article II?

• Holding: Article II Take Care clause gives the president the responsibility to ensurethat the laws are faithfully executed. The most efficient way he does that is byhiring and firing executive staff. This act undermines that ability. The SEC is unableto fire without good cause, and the members of the SEC cannot be fired by the


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president without good cause. This two-tiered scheme goes too far in limitingexecutive authority. The government can limit the president!s ability to terminateemployees by adding a “good cause” requirement, but the determination of “goodcause” should be up to the president, not insulated subordinates of the President.

6. BOWSHAR v. SYNAR (1986):

• Facts: The Gramm-Rudman-Hollins Act would require across-the-board spendingreductions in the federal budget under certain circumstances when the proposedbudget increased the deficit. Congress would be required to draft a budget reportwith proposed cuts and submit it to the Comptroller General, a Presidentiallyappointed official who Congress had the power to impeach. The CG would thenreview the materials, and draft and submit his own report to the president. Uponreview of the CG!s report, the President would be required to enforce thesuggested budget cuts. Opponents ruled that the act was unconstitutional.

• Issue: Does the denial to Comptroller General by the lower court decisions in favorof Synar, making the Comptroller General subject to removal by Congress, violateArticle I legislative powers / separation of powers?

• Holding: The act is unconstitutional. Because the Congress has removal authorityover the CG, he cannot have executive powers. However, the responsibilitiesgranted to him are executive in scope. Potentially, if the CG does not do whatCongress desires of him, Congress can simply remove him. Because the CG!sreport effectively binds the President, it is possible that Congress would ultimatelydecide budget cuts without any check from the Executive. Congress cannot controthe execution of its laws.

7. MORRISON v. OLSON (1988):• Facts: The Judiciary Committee sent a report to the Attorney General suggesting

that an independent counsel be set up to investigate Olson (Assistant AG). The AGhas such power through the Ethics in Gov !t Act. The independent counsel would

be “hired” and “fireable” by the AG (Judicial Branch). Olson brought suit, arguingthat the independent counsel took executive powers away from the President, andcreated a “hybrid” fourth branch of government (the regulatory agency branch) thatwas answerable to no one.

• Issue: Was the lower court!s denial to the Independent Counsel of the powers inTitle VI of the Ethics in Gov!t Act inconsistent with the Appointment Clause of theConstitution?

• Holding: The independent counsel is a member of the executive branch. The AGhas the power to terminate her employment. Therefore, the act does not undulyempower Congress (does not violate separation of powers). The independentcounsel is an inferior member of the cabinet (as referred to in the Appointments

Clause), removal power by president is not required.

III. THE POWERS OF CONGRESS: THE COMMERCE CLAUSEA. HISTORY AND EVOLUTION:

i. The Commerce Clause (Article I, Section 8, Clause 3): Congress has the power toregulate commerce with foreign Nations, and among the several states, and with the Indiantribes

ii. Justice Marshall!s Broad View of Commerce: “All commercial intercourse”.


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a. GIBBONS v. OGDEN (1824):• Facts: The parties operated competing steamboat companies. Ogden had been given

the exclusive right to use the waterway by the State of New York, and Gibbons hadbeen given the right to use the waterway by Congress, who regulated Gibbons! routebetween New Jersey and New York. Ogden filed for an injunction to prevent Gibbons

from using the waterway. Ogden argued that the waterway was under state regulationand Gibbons argued federal regulation.• Issue: Was the lower court!s denial to Gibbons to be granted access to the New York

waterways through Federal Congressional licensure, was that denial a violation of theCommercial Clause of Article I of the Constitution?

• Rule: Commerce is not limited to traffic (the buying and selling of a good), it alsoincludes the shipping and “intercourse” between two state, including navigation.Commerce “among” the states refers to commerce that is intermingled between states,or that concerns more than one state. It only excludes commerce which is completelyinsular to one state. The states are not separate, insular entities. Commerce does nottransfer from one state to another without that commerce becoming “among” the

states. The “power” Congress has to regulate is “complete in itself” and may beexercised to the utmost extent (plenary). The powers of Congress are plenary to uniteall the states as one nation.

iii. Antebellum Commerce Clause: Until the 19th century, congress did not exercisecommerce clause power on a national scale. This was because of slavery. Those whosupported slavery were afraid that if congress had a national commerce power, thencongress could regulate slavery, which might limit or abolish that institution. As a result, therewas tremendous opposition to the notion of congress having a commerce clause power thatcould be regulated nation-wide

iv. The Commerce Clause Post-Slavery - Formalist Approach: The issue of slavery wasdecided in 1865. Around 1875, Congress began passing legislation that regulated

economics on a national scale. (Interstate Commerce Act of 1887, Sherman Antitrust Act of1890). Entities that were harmed by that legislation pushed back by challenging congress! powers. They brought suit, claiming the states can regulate their own activities.

a. Formal Approach: Looked to statute to see if certain objective criteria were satisfied(Mechanical, ignored actual effects or legislative motivation). Resulted in a very narrowdefinition of interstate commerce.

Factors:

• Whether the action had a direct or indirect impact on interstate commerce• Whether the action was local or national in character• Whether the action was sales / distribution or some other action

1. The courts gradually moved from a Formalist approach to a Realist approach.

b. US v EC KNIGHT CO (“The Sugar Trust Case”) (1895):• Facts: Knight (Sugar Manufacturer) bought up other sugar factories, resulting in

controlling 98% of the manufacturing of sugar in the US. US brought suit under theSherman Act claiming a monopoly. Knight argued that the Sherman Act could onlyregulate the commerce of an item, not the manufacture. Manufacture and commercewere two different steps, commerce being the step after manufacture.


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• Issue: Does the denial by the lower courts to the US in preventing it !s ability to restricta monopoly of the US sugar industry through the Sherman Antitrust act, is thatconsistent with Art. I, §8, Cl. 3 (The Commerce Clause)?

• Holding: Government!s power to control monopolies is limited. The manufacturing ofan item is a local activity, does not involve the crossing of state lines. Any restraint on

commerce caused by manufacturing is indirect. Therefore, it is a state issue not afederal issue. The US gov!t cannot regulate state issues. (Formalist Approach)c. HOUSTON TEXAS RAILWAY v UNITED STATES (“The Shreveport Rate Case”) (1914):

• Facts: A train line that operated shipping routes through Texas and into Louisianaregularly charged much more per mile for routes that left the State of Texas. This gavean advantage to Texas companies, who was competing with Louisiana companies forsouthern commercial power. The ICC attempted to regulate the train line!s shippingrates to end discriminatory pricing. The train line sued.

• Issue: Is the ICC!s denial to Houston E&W to be state-regulated a violation of theCommerce Clause of the Constitution?

• Holding: Congressional authority "necessarily embraces the right to control...

operations in all matters having a close and substantial relation to interstate traffic, tothe efficiency of interstate service, and to the maintenance of conditions under whichinterstate commerce may be conducted upon fair terms." Regulation of the intrastateline was a means to the end of regulating interstate commerce. (Realist Approach)

d. HAMMER v DAGENHART (“The Child Labor Case”) (1918)• Facts: Congress enacted the Child Labor Act (Keatings-Owen Act) that restricted

interstate sale of good produces by child labor. Dagenhart, a father who worked withhis 2 young sons in a cotton mill filed suit, claiming that it was unconstitutional.

• Issue: Did the lower court!s denial to the US Gov!t via Hammer to enforce the ChildLabor Act, was that denial consistent with the Commercial Clause in Article I of theConstitution?

• Holding: Congress does not have the power to regulate goods that are manufacturedby children. Congress! power does not extend to the in-state manufacturing of goods.Local manufacturing is not part of interstate commerce. It proceeds commerce. Intentto be shipped alone does not make the manufacturing a part of interstate commerce -intent is irrelevant. This case is distinct from the lottery case b/c the goods themselvesare “harmless”, while lottery tickets, alcohol, and prostitution are inherently immoral.The goods are not immoral, only the manufacturing of them is immoral.

• Note: Congress was enacting one thing (shipping restrictions) to try to accomplishanother (abolishing child labor). Even though Congress! power is plenary, pretextsmay create restrictions.

e. CHAMPION v. AMES (“The Lottery Case”) (1903):

• Facts: Congress enacted the Federal Lottery act in 1985 which prohibited the buyingor selling of lotto tickets across state lines. Congress had a social policy standpoint - a“widespread pestilence” of lotteries. They don!t like gambling. Champion was movinglottery tickets across state lines, but was not buying / selling them.

• Issue: Is the denial by Congress to Champion to transport lotto tickets across statelines consistent with the Commerce Clause of the Constitution?

• Holding: The indictment is constitutional. The power of the Congress to regulatecommerce is plenary (complete, in and of itself). This plenary power gives Congress


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the power to regulate however it sees fit - including by prohibiting an item - so long asit does not violate the Constitution. Lotto tickets are a commodity that is beingtrafficked via the shipping industry. Shipping industry (trains, etc.) is an instrument ofcommerce.

f. SCHLECHTER POULTRY v US (“Sick Chicken Case”) (1935):

• Facts: The National Industrial Recovery Act (NIRA, 1933) regulated a 40-hour workweek, minimum wage, and set standards for the sale of chickens. The Schechters rana chicken slaughterhouse. They would buy live chickens from farms outside of thestate, have them shipped to their slaughterhouse in Brooklyn, and then slaughter andsell the chickens to local in-state vendors. The Schechters were charged with violatingseveral of the regulations, including not following the minimum wage and hourlyprovisions, and selling sick chickens.

• Issue: Does the denial by Congress under the NIRA to Schechter to regulate hisbusiness, is that denial consistent with the enumerated power of Congress under thecommerce clause?

• Holding: The National Industrial Recovery Act is unconstitutional. The chickens come

to the Schechters from out-of-state. That is interstate commerce. But, once theyarrive at the Schechters they are no longer involved in inter-state commerce. The saleof the chickens in-state may indirectly affect interstate commerce, but it does notdirectly affect interstate commerce. herefore, the Schechters! selling of chickens (andthe labor involved in the slaughter and selling of chickens) is not under the umbrella ofinterstate commerce.

g. CARTER v CARTER COAL CO. (1936):• Facts: The Bituminous Coal Conservation Act (1935) established a commission that

set up fair standards of industry. The act was not mandatory, but offered a tax benefitto those who complied. The plaintiff, a shareholder, did not want the company to jointhe gov!t program, but the Board of Directors insisted the tax refund was needed.

Carter sued, claiming that coal mining was not interstate commerce, thus the federalgov!t could not regulate it in any way (even voluntarily).

• Holding: The Bituminous Coal Conservation Act is unconstitutional. A product that ismanufactured for interstate commerce is not a part of interstate commerce until it iscommences with moving from state to state. The production of a product is local, thusis subject to local control. The out-of-state selling of the product is federal. Justbecause coal is important to the national economy does not make the production of it“directly” associated with interstate commercial action.

v. The Switch In Time - The New Deal and a Change to Realism: Roosevelt wanted toincrease the number of SCOTUS justices to 15 (under the guise of reducing justice workload). That would mean that Roosevelt gets 6 appointees (stacking the deck). Justice

Roberts switched his position on the Commercial Clause and begins to uphold New Deallegislation that was continuously struck down. Roosevelt dropped his pursuit to add justices.This ended the court!s streak of striking down new deal legislation, and greatly increasedCongress! power under the Commerce Clause.a. Realist Approach: attempted to determine the actual economic impact of regulation, or

the actual motivation of Congress. (Results-Oriented). Rejects the notion that there is asphere of local activities. and that federalism imposes limits on Congress ! enumeratedpowers. Permits tremendous extensions of Congress! powers in domestic arena. The


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Substantial Economic Effect test was adopted because society is more global now, andearly provisions may have been too restrictive.1. Substantial Economic Effect Test: Congress may regulate an activity under it!s

commerce clause power, even if the activity is local and not characterized as nationalif that activity substantially effects, either directly or indirectly, interstate commerce.

The substantial economic effects test applies only to activities that are essentiallylocal in character.• What if the effect is insubstantial? That would matter to the court. The effect has

to be substantial.• Aggregation: The individual acts of one person may aggregate to create a

substantial effect on interstate commerce (Wickard)2. Current of Commerce Rule: As to activities involving movement across state

boundaries, the rule is that congress! power is plenary. This means Congress! powerto regulate the flow of commodities between states is limited only by otherconstitutional provisions. As to activities involving commodities that go from one stateto another, with the expectation that these commodities will end in transit in that

second state, the rule is that they are still a part of the current of commerce andtherefore subject to regulation by commerce. Once a commodity of commerce iswithin the current of commerce, it stays within that current and therefore can beregulated.

b. NATIONAL LABOR RELATIONS BOARD v JONES & LAUGHLIN STEEL CORP. (1937):• Facts: The Wagner Act is a New Deal law that limits how companies can prevent their

employees from unionizing. Jones & Laughlin, a large steel producer, fired severalemployees who had tried to organize a union. The NLRB brought suit, claiming thecompany had discriminated against its workers. Jones & Laughlin refused to pay backwages or rehire the men, claiming the act was unconstitutional.

• Issue: Was the lower courts! denial to the NLRB of it!s ability to regulate employers by

enforcing the Wagner Act, was that denial consistent with the Commerce Clause?• Holding: The Wagner Act is Constitutional. The company is very large, an the nature

of it!s business if the flow of commerce through it!s different facilities all over thenation. Such a large interstate corporation cannot claim to hide from Congress!sregulations by claiming that certain things it does are intrastate in nature. Althoughactivities may be intrastate in character when separately considered, if they have sucha close and substantial relation to interstate commerce that their control is essential orappropriate to protect that commerce from burdens and obstructions, Congress cannotbe denied the power to exercise that control. Congress must have the power toregulate any issues that arise out of interstate commerce, particularly those that ariseout of huge companies in which many Americans depend.

c. UNITED STATES v DARBY LUMBER (1941):• Facts: The Fair Labor Standards Act of 1938 created national employment standards.

Darby was charged with violating this act. It won on appeal, where the appellate judgefound that the federal gov!t is barred from regulating local industries. The USappealed.

• Issue: Was the lower court!s denial to Congress that prohibits the US from regulateemployment practices with goods that are selling only in the state, was that denialconsistent with the powers in the Commerce Clause.


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• Holding: The Congress has the power under the Commerce Clause to regulateemployment conditions. The motive of the legislation is clearly one of public policy (toprevent states from using substandard labor practices to their own economicadvantage through interstate commerce), but Congress is not limited by motive. It!spowers are plenary, and so long as they do not violate the black-letter laws of the

Constitution, they are permitted.d. WICKARD v FILBURN (1942):• Facts: The U.S. government had enacted the Agricultural Adjustment Act of 1983,

which imposed limits on wheat production based on acreage owned by a farmer, inorder to drive up wheat prices during the Great Depression. Filburn was growing morethan the allotment permitted, and was ordered to destroy his crops and pay a fine eventhough he was producing the excess wheat for his own use and had no intention ofselling it.

• Issue: Was the lower courts denial to the Secretary of Agriculture to regulate Filburn !swheat production via acreage allotted, was that denial a violation of the CommercialClause in Article I of the Constitution?

• Holding: The Act is constitutionally valid, Congress has the power to regulate pricesvia acreage quotas. The intent of the Act was to stabilize the price of wheat on thenational market. The power to regulate the price at which commerce occurs isinherent in the power to regulate commerce. If Filburn had not used home-grownwheat he would have had to buy wheat on the open market. Through the cumulativeactions of thousands of other farmers just like Filburn its effect could certainly becomesubstantial. Therefore Congress can regulate wholly intrastate, non-commercialactivity if such activity, viewed in the aggregate, would have a substantial effect oninterstate commerce, even if the individual effects are trivial. The issue was not howone characterized the activity as local, but rather whether the activity "exerts asubstantial economic effect on interstate commerce."

vi. Modern Trends: Increasing limitation on that expanded commerce clause power. SinceWickard, all of Congress! commerce clause acts had been upheld, until...a. UNITED STATES v. LOPEZ (1995):

• Facts: Congress passed the Gun-Free School Zone Act, which made it a federaloffense to possess a firearm within a school zone. Lopez, a 12th grade student,brought a loaded .38 pistol into school, and was charged under the act with a federalcrime. He filed to dismiss the case, arguing that the act was unconstitutional becauseit exceeded Congress! regulatory powers under the Commerce Clause. The Gov!targued that handguns in school affect the economy in two ways: 1) increasedinsurance costs that are spread across the nation, 2) an unwillingness by some to goto dangerous schools which will affect education, thus productivity, thus economy.

• Issue: Was the lower court!s denial to the US Government to enforce the Gun-FreeSchool Zone act, which the government argued was within the scope of it!scommercial regulatory powers because there were indirect consequences that affectcommerce, was that denial consistent with Congress! authority under the CommerceClause of Article I of the constitution?

• Holding: Unconstitutional. While Congress had broad lawmaking authority under theCommerce Clause, the power was limited, and did not extend so far from "commerce"as to authorize the regulation of the carrying of handguns, especially when there was


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no evidence that carrying them affected the economy on a massive scale. Though itmay be argued that there is some indirect affect on commerce, the effect is not at allsubstantial. This is a criminal statute that has nothing to do with commerce. Thegov!t!s rationale would allow regulation of pretty much all aspects of American society.(Federalism)

b. UNITED STATES v MORRISON (2000):• Facts: Congress enacted the Violence Against Women Act, which included a provision

that allowed for a federal civil remedy of damages for a victim of gender violence.Congress claimed that such violence affects interstate commerce by “deterringpotential victims from traveling interstate, engaging in interstate employment, andtransacting in interstate business”.

• Issue: Was the lower courts! denial to Congress to enforce the civil remedy provisionof the Violence Against Women Act for lack of a direct effect on interstate commerce,was that denial consistent with the Commercial Clause of Article I of the Constitution?

• Holding: Unconstitutional. The decision in US v Lopez is controlling in this case.Lopez limited the scope of the Commercial Clause to exclude activity that was not

directly economic in nature, even if there were indirect economic consequences.VAWA only has an attenuated, and not a substantial, effect. The courts cannotfederalize rape.

vii. Current Commerce Clause Analysis a. Categories: 3 broad categories of activities that Congress may regulate under the

commerce clause.1. Activities involving movement from one state to another, and end in transit for resale

only within the second state. Those commodities are viewed as being in the currentof interstate commerce, and therefore Congress can regulate such goods

2. Instruments of interstate commerce, such as trains, stockyards, airplanes.Instruments that transport goods.

3. Activities that are local in nature, but have a substantial effect on interstatecommerce.

b. Tests:1. Substantial Economic Effect Test: Applies to local activities. Congress may

regulate an activity under it!s commerce clause power, if that activity substantiallyeffects, either directly or indirectly, interstate commerce• Even if an activity is local in nature, congress may regulate it as long as the

aggregate effect of similar local activities constitutes substantial impact.• This has been interpreted as not only involving what actual impact occurs, but what

impact arguably could occur. That has given Congress a great deal of leeway.• The activity must be economic in nature. What that means to the court is that this

enumerate power principle limitation actually satisfied concerns about federalism.• Traditional local functions (criminal issues and education) are generally solely

regulated by local governments, and are seen to have no strong ties to commerce.2. Plenary Control of Instruments of Commerce: As to instruments of Commerce, the

rule is that Congress! power is plenary, therefore limited only by the Constitution!sother provisions. Congress may regulate or prohibit instruments of interstatecommerce


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3. Current of Commerce: As to activities involving movement from one state toanother, even though the commodity may end in transit, that commodity is said to bein the current of commerce. Thus congress can regulate it from beginning to end.

c. Federalism: If Congress exercises broad powers in the commercial arena, they areoperating as a national police power (which is a state function). Limiting Commerce

Clause Power stabilizes the power of the states and enforces Federalism.d. 3 Red Flags: • Non-economic activity being regulated.• Pretext. Congress has a reason other than commerce to enact the Act• Traditional local concern

IV. THE DORMANT COMMERCE CLAUSEA. FUNDAMENTAL FRAMEWORK

I. Court interprets Commerce Clause as a grant to Congress AND a limit to States. Fed Courtreserves the right to invalidate State laws that interfere with interstate commerce, even thoughthe Commerce Clause does not expressly limit states! commercial powers.

a. Creates enormous power in Congressb. Restricts states from being able to pass laws that interfere with interstate commerce

ii. The Commerce Clause - Article I, Section 8, Clause 3: Congress has the power toregulate commerce with foreign Nations, and among the several states, and with the Indiantribes.a. Why would the court interpret that language as not only a grant of power to Congress,

but also a restriction to the states? Because the fed. gov!t has the right to regulate, thestates do not have that right.1. This approach prevents state regulation that would result in conflicts that might be

inefficient / prejudicial2. This approach prevents “boxing” between the states (lawsuits that could lead to war)

3. This approach reinforces the democratic process. We are a union.iii. 3-prong test:

1. Does the law effectuate a legitimate local public interest?2. Are the effects incidental?3. Is the incidental burden excessive?

iv. No Other Way: A court may find that the local interest has no alternative way to accomplishits goal, and therefore they may say that it!s okay even if there is discrimination. Thisalternative approach is rarely used, but the court has authorized it to be used. When it usesit, the court will employ an exacting scrutiny (highest scrutiny possible) to determine whatthe legitimate local public interest is. The burden is on the state to establish the purpose.

v. Private Exclusion: Dormant Commerce Clause does not apple to purely private activity.

Only applies to state activity or private activity that implicates state action.vi. Market Participant Doctrine: If the state gov!t is acting as a market participant rather than

or as well as a market regulator (what it normally does), then the Dormant CommerceClause limitation / 3-prong test will not be applied.

• Rationale: Dormant Commerce Clause does not apply to purely private activity. Likeany other business in such cases, a state may favor or shun certain customers orsuppliers. Court will just look at a rationality review standard to verify that the state isacting properly. Legislation just has to be reasonable.


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• Limitation: The market-participant doctrine is limited in allowing a State to imposeburdens on commerce within the market in which it is a participant, but allows it to go nofurther. The State may not impose conditions that have a substantial regulatory effectoutside of that particular market.

vii. Alcohol Exception: 21st amendment has been interpreted as authorizing the states to

regulate importation and consumption, even when the ramifications would otherwise violatethe dormant commerce clause.B. BASIC PROTECTION AGAINST DISCRIMINATION

i. Economic Discrimination: A state can!t enhance revenue by intentionally discriminatingagainst other states. Violates the concept of union, can lead to civil war.

ii.CITY OF PHILADELPHIA v. NEW JERSEY (1978):• Facts: New Jersey passed a statute that restricted the importation of solid or liquid waste

that came from out of state. Private landfill owners challenged the statute.• Issues: Was the lower court!s denial to the City of Philadelphia to allow that city to export

it!s waste into New Jersey, was that denial a violation of the Dormant Commerce Clausein Article I of the Constitution?

• Holding: Unconstitutional. The question here is whether this statute is a protectionistmeasure, or if it it is one of legitimate local concerns that affect interstate commerceindirectly. Here, there is no reason, other than the place of origin, to treat the restricteditems differently. That is clearly discrimination against the commerce of other states, anattempt by one state to isolate itself from a problem that is common to many states byerecting a barrier against interstate trade. A state cannot regulate beyond its borders.

iii. C&A CARBONE INC v CLARKSTOWN (1994):• Facts: Clarkstown subsidized a private waste transfer station by guaranteeing a minimum

amount of waste to flow through the facility. To achieve this minimum, Clarkstownenacted a statute requiring all waste to go through the facility. Another private wastecompany, that received waste from NY and NJ, sued.

• Issues: Did the lower court!s denial to C&A Carbone of it

!s ability to freely import and

export waste between Clarksville NY and neighboring towns and states without involving aseparate private subsidized waste facility, was that denial a violation of the CommerceClause in Article I of the Constitution?

• Holding: Unconstitutional. Discrimination against interstate commerce in favor of localbusiness or investment is per se invalid, with a very narrow exception where the city canshow, under rigorous scrutiny, that there are no other means to advance a legitimate localinterest. Having chosen to use the open market, the city cannot employ discriminatoryregulation to give the project an advantage over rival business from out-of-state.

C. FACIALLY NEUTRAL STATUTESi. HUNT v. WASHINGTON STATE APPLE ADVERTISING (1977):

• Facts: North Carolina enacted a statute that required apples shipped into the state to bearonly the USDA grade, and prohibited state grades. Local apples did not need to list theUSDA grades. Washington State, the nation!s largest apple provider, used a gradingsystem that was superior to North Carolina!s. Conforming to North Carolina!s statute putWashington!s apples at a disadvantage both because of the burden to relabel and repackthe apples, and because the higher ranking would not be promoted. This downgradedWashington!s apple market in North Carolina, giving local apples a competitive edge.North Carolina claimed the rationale was to avoid fraud and buyer confusion.


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• Issue: Was the lower court!s denial to North Carolina to restrict grading and labelingsystems for produce being imported from out of state, was that denial consistent with theCommercial Clause of Article I of the Constitution?

• Holding: Unconstitutional. North Carolina's law needlessly discriminating againstWashington state apple producers while working to the advantage of local North Carolina

apple growers. Avoiding fraud is a legitimate interest, but seems like a pretext forbenefitting local growers - particularly when considering that local apples do not need tobear USDA grades, which may confuse buyers more.

ii. KASSEL v CONSOLIDATED FREIGHTWAYS CORP. (1981):• Facts: Iowa enacted a law that restricted the length of trucks within its state. Exemption

permits were only granted to Iowa trucking companies. Consolidated, a nationwideshipper, used trucks that were longer than the limitation and travelled through Iowa tocomplete deliveries. It sued Iowa to challenge the law.

• Issue: Was the lower court!s denial to the State of Iowa to regulate the length of shippingtrucks using it!s highways, such as those used by Consolidated Freightways Corp., wasthat denial consistent with the Commercial Clause of Article I of the Constitution?

• Holding: Unconstitutional. Iowa failed to show that there was any statistically significantdifference in safety between the 55-foot and 65-foot trucks. Moreover, the statute couldpotentially create more accidents, by forcing shippers to use more small trucks to carrythe same quantity of goods, or force truck traffic to bypass the State of Iowa, shifting traffic(and a higher incidence of accidents) to adjacent states. The Court rejected the State!scontention that deference to the state legislature was in order, because the statute createdsuch a burden to out-of-state residents, and the legislative history of the “border-cities”and Iowa truck exemptions suggested that Iowa!s real purpose in enacting this law was todiscriminate against out-of-state businesses. Inherently protectionist in nature.

iii. Pretexts: Note that in both of these cases, the states reason is considered legitimate, butthe court rejects these reasons as pretexts. One way to “spot” the pretext is to look at

exceptions to the laws.iv. Deference: The courts give deference to states to determine the best ways to solve

legitimate concerns. Concerns such as safety are generally always considered to belegitimate concerns. However, if a court suspects a pretext, or where there is an undueburden caused by the legislation, to courts will give less deference. The court balancesdeference with other concerns.

D. PREEMPTIONi. The “Final Say”: If a court invalidates a state statute because of a Dormant Commerce

Clause violation, Federal Congress may exempt or preempt the statute through their activeCommerce Clause power. Thus, Congress - and not the courts - have the final sayregarding the Dormant Commerce Clause. The courts have not challenged this. The courts

concede that Congress is better at making economic decisions than the court is.ii. Congress! Intent: The key to allowing preemption is the intent of Congress (very factual,

specific). If there is no intent to preempt, you cannot have preemption.

V. EQUALITY AND THE CONSTITUTION: THE EQUAL PROTECTION CLAUSEA. Equal Protection Clause of the 14th Amendment: “No State shall... deny to any person

within its jurisdiction the equal protection of the laws.”


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i. Equal Protection Claims involve challenges to laws that allocate benefits or impose burdenson an individual or defined class. Plaintiff is claiming there is a line between a favored groupand a disfavored group, and that line has been drawn in an impermissible place. Nearly allgov!t actions classify individuals, and some will be benefitted, some will be harmed.Question court has to answer in these cases is whether under the circumstances, a

challenged classification is permissible.ii. 3 ways discrimination manifests itself:1. Discrimination on its face (in the actual language of the legislation)

• Example: “Men only”, “Whites Only”, etc.2. Discrimination in its application (how the legislation is being applied)

• Example: “No speeding” - only blacks are stopped for speeding. Neutral law,discriminately applied.

3. Discrimination in the effect / impact the legislation has• “No City Residents need apply” - Vast majority of City Residents are minorities. Impact

is to define and segregate a classiii. State and Federal Equal Protection Clause Analysis: 5th amendment applies to federal

gov!t, 14th amendment applies to state / local gov

!t. Analysis is exactly the same.

B. THE HISTORY OF CONSTITUTIONAL EQUALITY AND RACEi. Slavery in the Constitution: Three Slave Provisions were included in the Constitution

a. Importation Clause: Guaranteed slave trade for 20 yearsb. Fugitive Slave Clause: States must return fugitive slaves to their original state,

regardless of whether the slave has managed to reach a free statec. 3/5 Clause: For purposes of taxation and representation, slaves were counted as 3/5 of

a personii. DRED SCOTT v. SANDFORD (1857):

• Facts: Dred Scott travelled with his master (Sanford) to numerous states, including Illinoisand Minnesota (free states). Scott later returned to Missouri, a slave state. He brought

suit claiming that, under the “Once Free Always Free” principle of free states, his entry intofree states as a non-fugitive slave had rendered him free for good. Missouri Supremecourt found for Sanford, Scott appealed to Federal court.

• Issue: Did the lower court!s implicit denial to Sanford to classify Scott as a non-citizen ofthe US, thus destroying diversity and making federal courts unable to decide the case onthe merits, was that a violation of Article III, Section 2 Clause 1 of the Constitution, whichlimits Federal Jurisdiction to controversies between Citizens of different states?

• Holding: The Constitution does not classify “the class of persons imported as slaves, andtheir descendants, whether they have become free or not” as part of “the people”. Blacksare not citizens of the US. Because the intent of the framers was to exclude blacks fromcitizenship, they can never be considered citizens of any state or the country.

iii. The CIvil War and Reconstruction:a. 13th Amendment: Abolishes Slaveryb. 14th Amendment: Adds Equality Component to the Constitutionc. STRAUDER v. WEST VIRGINIA (1880):

• Facts: Strauder was a black man convicted of murder by an all-white jury. A WestVirginia statute limited jury service to “White male persons who are 21 years of age andwho are citizens of this State”. Strauder claimed the law violated the 14th amendment.

• Issue: Was the denial to Strauder by the lower court to the right to a jury that could


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legally include members of his own race because of a State statute that banned blacksfrom juries solely on race, was that denial a violation of the Equal Protection Clause ofthe 14th amendment?

• Holding: Unconstitutional. The purpose of the 14th amendment was to protect recentlyemancipated blacks from laws which would deny them equal civil rights. This law limits

jury service strictly by race, thus denies minorities of a civil right strictly because of theirrace. It is a clear violation of the Equal Protection Clause.d. Hayes Tilden Compromise: Deal struck to end Reconstruction, enforcement of civil

rights is left to the individual states. Consequences:1. Voting rights are taken away through various mechanisms, such as laws and lack of

enforcement at the polls2. Tremendous violence against blacks and those who support rights for blacks

occurring from private individuals and orgs (KKK) that are being formed or continue tooperate after reconstruction ends. States are not doing anything about it

3. State gov!ts begin to separate / segregate on basis of race, in terms of publicaccommodations, jury boxes, voting booths, schools, etc.

iv. Separate but Equala. PLESSY v. FERGUSON (1896):

• Facts: A Louisiana law forbade the races from intermingling on train cars. Train carswere segregated by race, but each car was supposed to be of equal quality in all otheraspects. Plessy was 1/8 black, thus classified as a black man. In a staged act ofdefiance, he sat in the white car and refused to leave.

• Issue: Was the denial to Mr. Plessy by the lower court of his ability as a black man toco-mingle with whites by using the same train car as them, thus validating a LouisianaStale law which forbade the mixing of races on a train car, was that denial a violation ofthe Equal Protection Clause of the 14th amendment?

• Holding: Constitutional. The 14th amendment guarantees equality, but not “sameness”.

Distinctions in races are permitted, so long as they do not lead to unequal treatment.Races may be treated as “separate but equal”. This law is reasonable, once deferenceis given to legislature to consider the customs and attitudes of the people.

• Dissent (Harlan): “Everyone knows” that the reason for this law is because whites thinkblacks are inferior. Therefore, though it does not expressly hold one race as superior toanother, that is the main implication of the law. The 14th amendment cannot allow a lawto stand when it!s purpose is to segregate based on hate.

b. BROWN v. BOARD OF EDUCATION (1954):• Facts: Topeka!s Elementary Schools were segregated. Brown and others were minority

parents whose children were denied enrollment in the public schools closest to theirhomes because the schools were for whites only.

• Issue: Was the denial by the lower courts to Brown of the ability to enroll his children inthe school that is closest to his home because the school denies enrollment tominorities, was that a violation of the Equal Protection Clause of the 14th amendment?

• Holding: Unconstitutional - Plessy is overruled. Though the tangible elements of aschool may be equal, there are intangible detriments to the confidence, self esteem, andworld interpretation of minority children in segregated school systems, which can beshown through modern psychological analysis. Education is important and mandatory.

c. BROWN v. BOARD II (1955): Remedy issue - how to segregate the schools. The


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specifics for school desegregation is for local governments to resolve. So long as thereis a good faith implementation of the law, the districts will have freedom to carry out theprocess as they see fit. Schools must bake a prompt and reasonable start towards fullcompliance, and desegregate schools with “all deliberate speed”.

C. EQUALITY PROTECTION METHODOLOGY: RATIONAL BASIS REVIEW

i. Two-Prong Rational Basis Test:1. Is there a legitimate state interest?2. Is the classification rationally related to achieve it? A Nexus between the Means

(Classification) and the Ends (Goal / Interest)• This approach raises 3 concerns for the court:

1. How has the gov!t defined the group? (means)2. What is the gov!ts purpose? (ends)3. Is there a sufficient connection between means the gov!t is using and the goals it

is pursuing? (fit / nexus)ii. Deference: This is the lowest level of scrutiny and gives great deference to the government.

The existence of facts supporting legislative judgment is to be presumed (uphill-battle for

plaintiff).iii. Pretext Concern: If state!s objective doesn!t seem to be connected to the classification,

there will be a question as to whether there is a pretext. The gov!t is permitted to act on alegitimate objective, but not on an illegitimate objective under the guise of a legitimateobjective.

iv. Fit: A classification will be related to the objective in 5 ways: a perfect fit, no fit, over-inclusive, under-inclusive, or both over- and under-inclusive. Only no fit at all will cause forthe law to be overturned. Over- or under-inclusivity itself does not violate the EqualProtection Clause. The Supreme Court has the power to reject unfair laws, not inefficientlaws.• Note: If there is over-inclusivity or both over- and under-inclusivity & the identification of

an unpopular trait (which does not have to be immutable - can be a result of choice), thatwill trigger alarm in the court, make them look more carefully at the gov!t!s stated purpose.

v. Nexus: Any connection whatsoever satisfies the Nexus requirement. There must be acomplete disconnection in order to invalidate under the nexus requirement. A loosenesscoupled with deference to legislative fact findings reflect the reality that under a rationalbasis review, legislation is most likely going to be upheld. The Gov!t has a lot of leeway toclassify and differentiate between individuals and groups.

vi. Cases found Constitutional via Rational Basis Review:a. NEW YORK TRANSIT v BEAZER (1979):

• Facts: The TA!s employment policy included a strict restriction on the employability ofnarcotics users, including people in methadone treatment for heroin addiction. The TA

would not employ methadone users. Several methadone users sued, claiming thisviolated the Equal Protection Clause of the Constitution.

• Issue: Did the lower court!s denial to the Transit Authority to regulate employment bydeclaring all methadone users to be ineligible for employment, is that denial consistentwith the Equal Protection Clause of the 14th Amendment to the Constitution.

• Holding: Constitutionally valid. Legislative classifications are valid unless they bear norational relationship to the state!s objectives. Methadone use is not considered anunpopular trait - need the presence of an unpopular trait to suggest some sort of bias.


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The TA!s policy may be too broad and over-restrictive, and it may be unwise for such alarge employer to create such a policy. However, the policy is a rationale one that wouldeffectively weed out those methadone users who are unemployable (approximately 1/3of methadone users). Therefore, it is not unconstitutional, no matter how unwise it maybe.

b. RAILWAY EXPRESS AGENCY v NEW YORK (1949):• Facts: New York City regulation forbid advertisements on vehicles as the main purpose

of the vehicle!s use (no ads for hire). The Defendant owned a trucking fleet of 1900vehicles, and sold the sides of the trucks for advertising space. This advertising wasgenerally unrelated to to trucking business. They argued that the aim of the law (safety -ads distract drivers) did not justify unequal treatment of trucks.

• Issue: Was the lower court!s denial to Railway Express to use the exterior of its trucksfor advertising a violation of Equal Protection?

• Holding: Constitutional. The law is rationally related to a legitimate gov!t concern. It isnot the requirement of equal protection to eradicate all evils of a genus or none at all.May be unfair / inefficient / lousy result, but it is constitutional.

c. WILLIAMSON v LEE OPTICAL (1955):• Facts: Oklahoma passed a statute that restricted opticians from making a lens without a

prescription from an optometrist or an ophthalmologist. Lee Optical challenged that rule,stating it violated the Equal Protection clause.

• Issue: Did the lower court!s denial to the Oklahoma State Legislature to enforce a lawrestricting opticians such as Lee Optical from making lenses without a prescription, didthat denial violate the Equal Protection of the 14th amendment to the Constitution?

• Holding: Constitutional. It is legislature!s job to balance the benefits and drawbacks ofa piece of legislation and decide what is best for it!s citizens, not the court. The lawdoes not have to be logically consistent with its goals to be constitutional. So long asthe court has identified a problem and found a rational solution to it, the court will not

interfere. It is not the Federal court!s job to question the decision-making of State

regulators.d. US v CAROLENE PRODUCTS CO. (1938):

• Facts: Filled milk is milk that has animal fat removed and replaced with vegetable oil.Congress passed a bill to restrict the interstate sales of filled milk for public healthreasons. Carolene brought suit.

• Issue: Ws the denial to Carolene by the lower court, upholding Congress! law thatbanned filled milk from interstate sales, was that denial a violation of the EqualProtection Clause?

• Holding: Constitutional. The act should not be questioned on it!s face if Congress hasshown a rational basis for deciding to regulate. Here, the act was challenged on it!s face.

Congress has shown a rational reason to desire to regulate. The act will be upheld.e. MINNESOTA v CLOVER LEAF CREAMERY (1981):

• Facts: Minnesota banned retail sale of milk in plastic containers, but not milk inpaperboard cartons, claiming environmental concerns Cloverleaf sued.

• Issue: Is the lower court!s denial to the State of Minnesota to regulate the retail sale ofmilk via carton type, is that denial consistent with the Equal Protection Clause?

• Holding: Constitutional. The state!s proclaimed basis for creating the law was one ofenvironmental protection. The plaintiff does not dispute that basis, but claims that there


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is no empirical evidence that shows the law will solve the problems it is intended tosolve. States are not required to convince the courts of the correctness of theirlegislative judgments. So long as the basis for the law is rational, and it is evident thatthese considerations were presented to and considered by legislature, the law will notviolate equal protection.

vii.Cases found Unconstitutional via Rational Basis Review:a. CITY of CLEBURNE v CLEBURNE LIVING CENTER (1985):• Facts: CLC applied for a permit to run a house for the care-taking of mentally retarded

individuals. The city of Cleburne denied the application, using a codified exception for“homes for the insane or feeble minded, alcoholics, or drug addicts.” It stated it wasconcerned about flooding in the area, and also concerned students at the nearby highschool may taunt the residents.

• Issue: Does the denial to the City of Clayburne by the lower court decision in favor ofCLC, requiring a special permit for the operation of a group home for the mentallydisabled consistent with the Equal Protection Clause?

• Holding: Unconstitutional. Legislation that distinguishes between the mentall

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