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Role of the Supreme Court in the Constitutional Order

Creating a Constitution that Binds the Future

Why/how did it come about? To create a more perfect union not about rights

but rather about setting up a form of govt. Needed apowerful national yet limited govt.Articles of Confederation too weak (like UN; couldnt tax; depended on states). USC variedfrom AofC in that: Created Presidency; Created Court; Gave Congress power to tax

The text: not very democratic but rather built a republic, has become more dem

over time.

Preamble: to form more perfect union; power is with the people

Art I: Legislative structure, powers & limits. HR only directly-elected group, andeven this is determined by state govt; Senate state-elected until 17 th amend sorepresented state govt rather than ppl.

Congress power exclusive clarified in 10th amend Art II: Executive powers.

State legislatures determine how electors are elected (direct dem not required); 12 th

amend modified this after 1800 tie (Burr-Jefferson)

Art III: Judiciary

Art IV: States powers and limits to unify the states Full Faith & Credit, Privileges & Immunities; Fugitive slave clause

Art V: Amending the Constitution extremely difficult, so as to quell turmoil & slowthings down (compare w/ CA simple maj vote!)

Art VI: Federal powers [relationship w/ states]

Supremacy clause doesnt necessarily establish judicial review be/c doesnt sayjudiciary is ultimate decider, just that fed>state law

Art VII: Ratification 9/13 only, so coercive & unconstitutional under AofC. TX vWhite held TX (& rest of Confederacy) never left the Union during the Civil War,because a state cannot unilaterally secede from the United States.

Amendments: BofR (Framing period); 10th seen as a truism (powers not delegated to fedstay w/ states & ppl)-; 13 (abolished slavery); 14 (= protection); 15 (black franchise); 16(income tax power: states lost militias & financial independence); 17 (direct election ofsenators); 18 (prohibition); 19 (womens suffrage)

Forms of constraint:

Judicial review; Separation of powers (Across 3 co-equal branches; Between fed &states)

Others: representation (as opposed to direct democracy); popular constitutionalism(regular political intervention elections, demonstrations, public pressure); military forcedeployed by people via 2nd Amendment

Origins of the USC

Arguments over ratification:

Federalists (Madison, Hamilton, John Jay): pushed for representative republic.Represented elite; distrusted layman & feared too much democracy. Forindirect civicinvolvement. Designed toward inaction & status quo. Federalist 10 (Madison, 1787):problem of factions. Federalist 51 (Madison, 1788): Checks and balances proposed ascure to both factionalism and self-interested representation.

Antifederalists (Jefferson) valued civic virtue of citizenry as safeguard against tyranny.Represented layman; distrusted strong central govt for fear of tyranny. For direct civicinvolvement.

Origins of Judicial Review

Constitution, Art. III, 1, 2.

Marbury v. Madison (1803): judicial review overCongressional acts; SC has last

say. Congress couldnt extend Courts original jx beyond what Constitution granted. Definescheck & balance system. Court can tell other branches what to do, esp here where exec actgranting writ) was admin rather than discretionary.

Extended inCooper v Aaron (1958) Arkansas failed to comply w/ District Court orderto desegregate schools (after Brown v Board of Ed); Court disagreed by applyingMarbury reasoning (SCOTUS decides what law is) and 14th Amendment (law applies tothe states) states also bound by SC decision.

Martin v. Hunters Lessee (1816): judicial review overstate court decisions

nvolving fed law, be/c fed power transferred/came from people, state courts had power todecide FQ and USC says SC has appellate jx over FQ, and moreover its interpretation winsvia Supremacy cl. Story appealed to need for uniformity of decisions & checks over states aswell as other branches. Affirmed in Cohens v VA (review over state criminal proceedings).

The Sources of Judicial Decisions

Constitution, Art. I, 8, cl. 18

McCulloch v. Maryland (1819): N&P cl gives Congress implied powers (derived

from all ppl, not just MD citizens, to pass laws in furtherance of express powers), and stateaction cant impede Congressional power. MD tax of natl bank unconst. Broad,structural(federalism balance between fed & states) interp approach: its a Const we areexpounding. Necessary construed to mean appropriate, so long as ends are legit.Representation reinforcement = states cant tax fed entities.

he Power of Political Control Over the Supreme Court

Constitution, Art. III, 2

Checks: amendment (4/24 overturn SC precedent - XI limiting federal court jx

o hear suit brought against states; XV giving blacks vote; XVI expanding Congressional

ax power; XXVI 18 vote); exec power to appoint; impeachment; life tenure; Congress

confirms Justices

Ex parte McCardle (1869): Congress can limit SCappellate jx per Art III, 2, not

original jx (comes from Art III) so Congress has plenary power over SC appellate jx.Confederate sergeant McCardle cant challenge denial of habeas in fed ct.

Recently revived by Scalia in Hamdan v. Rumsfeld be/c Congress repealed the statutethat was being used by Guantanamo detainees to petition for habeas corpus. Govt

argued cases should be dismissed butnot all paths were closed to McCardle.

US v Klein (1872): Congress cannot prescribe to the court how to interpret the USC Marbury affirmed.

he Case or Controversy Requirement and the Passive Virtues judicially-imposed

s as different from those imposed by Congress

Introduction and Advisory Opinions

Article III cases and controversies jx has concrete implications: no advisory

opinions & no deciding political questions. P must have standing or stake in the case. Only

ripe non-moot cases allowed

Advisory doctrine: SC does not give them; need real case & controversy

F2. Standing (2nd doctrine after Advisory Doctrine; Court will leave as much as possible to thepolitical process)

o Allen v. Wright (1984): citizens denied standing to sue a federal agency (IRS)

based on the influence that the agency's determinations might have on third parties (notcarrying out its obligation to deny tax exempt status to private schools that discriminated onthe basis of race decided in Bob Jones U v US); no causation. Art III standingrequirements (cannot be amended by Congress): (1) personal injury [not conjectural] (2)fairly traceable to the Ds allegedly unlawful conduct & (3) likely to be redressed by therequested relief. Prudential standing requirements (judicially imposed): (1) no raising 3rdpartys legal rights; (2) no generalized grievances that are more appropriately addressed inthe representative branches; and (3) claim must fall within zone of interests protected by thelaw invoked.

Batson v Kentucky prosecutors cant use peremptory challenge to dismiss jurors onaccount of race (1st prudential waived)

o Lujan v. Defenders of Wildlife (1992): Ps denied standing under ESA; no injury-

in-fact (speculative) for the ESA citizen-suit provision. ESA procedural right not enough topass substantive right standing doctrine. Court is setting a floor on the kinds of proceduralrights Congress can create. Follows City of Los Angeles v. Lyons (1983 - denied blackstanding to challenge the city police department's alleged chokehold policy for want of a

sufficiently plausible threat offuture injury)

o Massachusetts v. EPA (2007): P sovereign (MA) granted standing via special

solicitude to require EPA to regulate GHGs under CAA be/c suffered a particular injury-in-fact for which it can seek relief (like GA v TN Copper1 century earlier). Injury deemedimminent andjust because widely-shared did not mitigate its injury-in-fact status(courtrelies on FEC v Akins - 1998); but CAA lacks citizen suit provision as has ESA in Lujan.Here Court pushes standing aggressively.

Injury-in-fact. Association of Data Processing Services Organizations v Camp (1970)broadened standing by giving beneficiaries of government action standing to sue.

But standing was later denied in 1972 on injury-in-fact grounds in Sierra Club v

Morton because members didnt allege using the park slated to be torn down. Goldberg

v. Kelly (1970) then held due process of 14th requires evidentiary hearing before a

welfare recipient can be deprived of benefits.

Threatened injury. Duke Power v Carolina Environmental Study Group (1978 sufficiently concrete injury found for constituents in vicinity of potential power plant)

& United States v SCRAP make clear that there must be a sufficient threat of future

injury, which means it must be real and immediate rather than merely speculative.

Widely diffused harms. US v Richardson - CIA secret budget case denied standingfor widely diffusedinjury associated w/ taxpayer standing, except w/r/ t establishmentclause/religious appropriations (Flast v Cohen; confined to its facts in Hein v FFRF -

general appropriations cannot be challenged but specific ones can). But see FEC v

Aikins (granted standing be/c Congress created cause of action & injury consisted of

inability to obtain info)

Nexus. Simon v Eastern Kentucky Welfare Rights Organizationdenied standing toindigents suing IRS for granting favorable tax tr eatment to certain nonprofit hospitals

that limited aid to indigents (speculative causation). But see Regents v Bakke (1978)

granting standing to affirmative action policy challenge because P did not have equal

opportunity to apply. Also Northeastern Florida Chapter of Associated General

Contractors v Jacksonville (1993) granting standing (injury in fact caused by city

ordinance laying aside 10% taxes f or minority owned business contracts).

Speculation/probabilistic injuries: Steel Company v Citizens for a BetterEnvironment (1998 no standing for P be/c pollution had stopped so no

redressibility) vs Friends of the Earth v Laidlaw Environmental Services (2000

standing granted be/c pollution was ongoing and civil damages would deter future

pollution).

F3. Political Question (3rd passive virtue doctrine; from Marbury)

o Constitution, Art. IV, 4

o Baker v. Carr(1962): reapportionment justiciable B sued TN SOS for not

redistricting since 1901, thereby diluting his vote and denying him = protection under 14 th.Court says this is a case where system cant self-correct unless feds step in; democraticprocess wont work this case opens door for fed oversight over state affairs. Courtreformulates PQ to say its about separation of powers rather than federalism: (1) USCtextually & clearly allocates the issue to one of the branches[US v Nixon 1993 citing PQto deny judge right to impeachment trial; comp w/ Powell v McCormack1969 denying PQand allowing Powell suit declaring that his being prevented from taking House seat wasunconstitutional]; (2) no judicial standards for resolving; (3) impossible to decide w/o aninitial policy determination; (4) impossible for court to hear case w/o disrespecting otherbranches; (5) need to respect previously made political decision; (6) need to speak w/ 1voice [winner in foreign affairs PQ threw case out: Goldwater v Carter1979, Senatorssued Carter for unilaterally recognizing PRC as sole government of China and agreeing toterminate mutual defense treaty with Taiwan; Mora v McNamara 1967 challengingconstitutionality of Vietnam;El-Shifa Pharmaceutical v US - Clinton 1998 bombing onprivate pharma factory in Sudan]; articulates 1 person-1 vote (enunciated formally inReynolds v Sims, 1964).

o Republican fo rm of government cl ause . Art 4 4 court has rendered it a

dead letter with PQ doctrine. =Luther v Borden (1849); Pacific Telephone Co v Oregon

(1912)

F4. Questions of Timing Ripeness and Mootness

oRipeness. Laird v Tatum (1972 class action seeking injunctive relief against

alleged surveillance of lawful citizen political activity by the Army); Socialist Labor

Party v Gilligan (1972 - refusing to hear challenge to a statute requiring party members to

pledge that they were not engaged in an attempt to overthrow the government by force)

o Mootness. DeFunis v Odegaard (1974 challenge to preferential admissions

program at UW Law school but by the time the case reached court, he was a 3L) comp w/

Roe v Wade

G. The Jurisdiction of the Supreme Court rare appellate process via statute; most by certII. Federalism at Work: Congress a nd the National Economy

A. Introduction: The Values of Federalism

o Constitution, Art. I, 8

o Enumerationensures limited federal govt. But US Term Limits V Thorton, 1995

states cannot impose term limits on Congress, be/c USC set up a uniform system

o Values of federalism: efficiency; promoting individual choice; encouraging

experimentation; promoting democracy; preventing tyranny

B. Federalism and Judicial Review

o Constitution, Art. I, 8, cl. 3

o Gibbons v. Ogden (1824): Broad CC interp means cant stop at state lines

(covers everything except exclusively intrastate activities -production, agr iculture).Congressional grant to Gibbons upheld & NY Court reversed; NY monopoly invalid undersupremacy cl.

o Hammer v. Dagenhart (The Child Labor Case) (1918) conservative

Lochner Ct narrows CC even tho case clearly regulates interstate commerce ,

purpose & direct effects are intrastate .CC cant threaten statepolice pow

prevent unfair competition. Child Labor Act invalidated via realism. OverruDarby (1941)

o Wickard v. Filburn (1942): CC expanded & broadly interpreted to

economic activity that has a substantial economic effect on interstate com

Agricultural Adjustment Act setting wheat production quota & penalties for oupheld. But Court would again back away from this strong federalist/expansivduring New Deal when it would restrain fed growth. Overrules ALA SchechteNLRB Ct combines real economic effects + Wickard aggregation to open doorcongressional control over all economic activities.

Wickard revisited & CC expanded: Gonzalez v Raich (2005) - Congrregulatepurely intrastateactivity that isnot itself commercial, if it conc

failure to regul ate that class of a ctivity would undercu t the regulation o

market in that commodity. Raich defined economic activities as those i

production, distri bution and consu mption of commodities

C. The Evolution of Commerce Clause Doctrine: The Lessons (?) of History

o Interstate Commerce Act of 1887 and Sherman Antitrust Act of 1890 ushered i

o US v. E.C. Knight (1895): introduces formalistdirect/indirect tes

CC eschewing Gibbons. Rejects US argument for invoking Sherman Antitrustaside acquisition by American Sugar Refining Company of 4 competing refineacquisition be/c the Act did not reach the monopoly since CC does not covermanufacturing. Fuller has formalist temporal sequence in mind (manufactuinterstate commerce < retail). But see Stafford v Wallace (1922) Ct upheld PStockyards Act of 1921, which authorized commerce sec to regulate rates for before livestock enter interstate market.

o The Shreveport Rates Cases (1914): Ct expands CCvia aggregate

theory to allow ICC to set price ceiling so as to prevent RR from discriminatininterstate commerce. Congress authority extended to interstate carriers asinterstate commerce, which necessarily embraces the right to control their opmatters having such close and substantial relation to interstate traffic

o Champion v. Ames (The Lottery Case) (1903): formalism uphold

banning interstate traffic of lottery tix, really on moral grounds.Narrowed by which was overruled by Darby. Ct holds Congress' power to regulate interstplenary. Absent Champion, motive would become relevant federal narcoticsBinding.

o Evolution:McCulloch (1819 just need legitimate ends & appro

be constitutional); Gibbons v Ogden (1824 Congress cant regulate purely

E.C. Knight (1895 no power to regulate manufacturing).

o 2 strategies emerge to interpret enumerated powers like commerc

formalist/literal (E.C. Knight; Champion; Darby); (2) expansive (McCulloc

rate cases; Hammer; Wickard).

o New Deal crisis spawns mixed results but Court works to limit

FDR administrations repudiation of contractual duties to repay debts in gold (Baltimore & Ohio Railroad, 1935) but invalidated (i) a portion of NIRA, holdiexcessively delegated power to the President (Panama Refining Co v Ryan, 19Railroad Retirement Act of 1934, holding that Congress lacked power to estabcompulsory retirement and pension plan (Railroad Retirement Board v Alton R1935). Court response to ND was extremely hostile (Schechter; Carter) and for striking these down was direct/indirect test. Cardozorealistic/economic aprevails inNLRB v Jones & McLauglin.

o A.L.A. Shechter Poultry v. United States (1935): restricts CC & re

Knight direct/indirect . Be/c Schechters distribution entirely local, feds cant rwage/business practices. Here commodity at rest after interstate commerce en

o Carter v. Carter Coal Co. (1936): restricts CC again via EC Knigh

Coal Conservation Act (NIRA replacement) still not within Congress CC powbecause a commodity (coal) will, in the future, be sold in interstate commerceCongress the right to regulate it before the event occurs (aka to regulate mininlocal). Commodities are at rest before interstate commerce begins . Cardozo d

Shreveport Rate cases to say that whats important is effects. Court swings inWestCoast Hotel, 1937 (upholds state min wage statute)NLRB v Jones & (switch in time that saved 9 held Congress can regulate labor relations)

Both Schechter Poultry & Carter Coal maj & dissents agree some things mstates butMAJ draws the line formalistically whereas minority (Cardozo) realistically/economically .

o NLRB v. Jones & McLaughlin Steel Corp. (1937): expands CC vi

economic effects/pragmatic approach, upholding National Labor Relations Aworkers win as they cant be discriminated against for unionizing; 75% of its soutside of PA. Court overturns Schechter & Carter Coaleschewing hard-anddirect/indirectLandmark represents end of direct/indirect test& huge expansipower.Butproblem of degree will be resolved in Wickard (combines effects w

o United States v. Darby (1941): overrules Hammer. CC expanding

Fair Labor Standards Act of 1938, giving Congress power to regulate employm(to prevent states from exploiting interstate commerce thru cheap labor/unfairFormalist approach: act is N&P to directly regulate interstate commerce.

o Later developments:Perez v US (1971) upheld federal criminal

prohibiting loan sharking (purely local) enforced by threats of violence; US v

struck down ambiguous(ly broad) statute limiting convictions of gun posses

gun had been possessed in commerce or affecting commerce.

Significance: NEPA, CAA, CWA, min wage, etc made possible

o Heart of Atlanta Motel v. United States (1964): CC broadly availa

racial discrimination. Title II of 1964 Civil Rights Act - restaurant is coveredserves/offers to serve interstate travelers or if a substantial portion of the foodmoved in commerce. 75% of hotels guests were from out of state, and it walocated near Interstates 75 and 85 as well as two major U.S. Highways.

o Katzenbach v. McClung (1964): Affirms Heart of ATL via aggrega

applying it to Ollies BBQ on state hwy but had take-out service to negroes. out of state. Local effects hurt rest of businesses and any new ones that might wOne step beyondChampion be/c Civil Rhts Act doesnt regulate interstate mo

o United States v. Lopez (1995): first CC restriction since Depress

of slippery-slope to granting Congress states general police power. Reversingera/trend of J&L Steel, Darby & Wickard to instead hold that CC has outer li

possession of gun in local school in no sense an economic activity in the way & consumption was in Wickard (wheat is a commodity; gun is not). Ct identifibroad categories of activity thatCongress could regulate under CC: (1) thinterstate commerce, (2) the instrumentalities of interstate commerce, or pthings in interstate commerce, and (3) [local] activities that substantially affsubstantially relate to interstate commerce. we [would] have to pile infereinference which would eliminate states powers. Followed in Morrison (2000SWANCC (2001). (1) & (2) are plenary but it will not aggregate or defer as t

o United States v. Morrison (2000): Refines Lopez (3): VAWA stru

gender-motivated crimes of violence are not economic activity.No Wickard

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be/c indirecteconomic effects of crimes against women could not be addressed thru CC .

tate Regulation of Interstate Commerce Dormant Commerce Clause

The Fundamental Framework

Constitution, Art. I, 8, cl. 3

No textual basis. Judicially-created doctrine that defers to Congress unless collective action

renders it too slow to act.

Classical framework: (1) Direct/indirect: DiSanto v PA (1927) invalidated a

icensing statute for those wishing to sell international tickets for travel on grounds thatCongress had exclusive control to regulate foreign commerce - statute directly interfered with

or burdenedforeign commerce. (2) Inherently local/national. Cooley v Board of Port

Wardens (1852) upheld a PA statute that required all ships entering/leaving port of Phila touse a local pilot or pay a fine into a fund to support retired pilots and their dependents.

Modern view: (1) Purely political.purpose or effects inquiry. (2) Purely

economic. (3) Mixed political and economic. (4) Formalism.

Early formulat ions of Congressional power to consent or preempt . Brown v MD (1827)states could not tax items of interstate commerce if in original packaging. Leisy v Hardin(1890) Leisys brewed beer and shipped to Iowa where it was confiscated because Iowahad outlawed beer sales, so Leisys sued & won on preemption.

Discrimination Against Interstate Commerce

General considerations:

Cost-ben efit analysis . Exporting costs. Dean Milk v Madison (1951 - municipalordinance requiring all milk sold in Madison, WI to be pasteurized at an approved plant

within 5 miles of the city unconstitutionally discriminated against interstate commerce)

City of Philadelphia v. New Jersey (1978): struck down NJ statute prohibiting

mportation of waste originating or collected out of state as violating dormant CC be/c (a)not local in character but rather regulates an item of commerce ( disposalof waste) (b) basedon its origin; (c)per se invalidbecause stops flow of interstate commerce at state borders; (d)evil of protectionism. Considerations:costs v benefits (local, out-of-state, both);discriminatory intent; retaliatory also not OK (Sporhase v Nebraska (1982) struck downNE statute prohibiting groundwater withdrawal from within NE to be used in another stateunless that state granted reciprocal water rights - reciprocity reqt retaliatory;A&P Tea vCottrell (1976) reciprocity could not be justified as response to another states unreasonableburden on commerce). But see Permissible discrimin ation. Maine v Taylor(1986) upheldME statute that prohibited the importation of live baitfish even in the face of scientificuncertainty - unusually fragile ME fisheries argument worked!

C & A Carbone, Inc. v. Clarkstown (1994): Private localrecycler sues

municipality be/c its flow control ordinance designed to subsidize new private waste transfer

station & requiring all solid waste within the town to be deposited within the station increasedhis costs. Struck down ordinance be/c (i) adverse economic effects on out-of-statersserviced by Carbone & (ii) deprives out-of-state business from local market which (iii) favorshe local operator only. Cites Dean Milk. Since municipality chose to use the open marketto

earn revenues for the project, town may not use their regulatory power to favor local

enterprise by prohibiting patronage of out of state competitors . But see United Haulers Assn.

v Oneida-Herkimer Solid Waste Management Auth. (2007) where similar flow control

public facility ordinance upheld since government was acting in its government rather than

market player role. Dept. of Revenue of Kentucky v Davis (2008) relied on United Haulers

o uphold a state law that imposed taxes on income from out-of-state bonds while

exempting income from Kentucky-issued bonds. Bibb v Navajo Freight Lines (1959)

nvalidated IL law requiring that trucks in the state use rounded mudguards be/c would

burden interstate commerce sans local advantage rare case where local nondiscriminatory

safety measures place unconstitutional burden on interstate commerce.

West Lynn Creamery, Inv. v. Healy (1994): Struck down MA combined

nondiscriminatory tax + subsidy program which taxed all milk in the state and thenredistributed the funds through subsidy to MA milk producers only.Purpose & effect of theprogram is to divert interstate market share exclusively to MA dairy farmers.

Alternatives to subsidies: Tax incentives as subsidies. Camps Newfound/Owatonna, Inc.v Town of Harrison (1997) struck down tax statute that exempted property owned bylocal charities but did not exempt organizations run principally for nonresidents be/c = to

export tax targeting out of state customers; New Energy Co. of Indiana v Limbach -presumption that subsidies rather than tax incentives are constitutional (form matters -

subsidies are active, cost is clear and they are up for debate every budgetary period; taxbreaks are passive, their cost is unclear and they are presumptively permanent).

Other Doctrines Concerning Discrimination:

Market-participant doctrine allows state to discriminate. Hughes v Alexandria ScrapCorp (1976) upheld MD program designed to reduce the # of abandoned cars in the stateby purchasing junk cars but paying premium for those w/ MD plates and imposing morestringent documentation for non-MD plates; Reeves Inc. v Stake (1980) upheld statepolicy restricting sale of cement produced in a state-owned plant to state residents. Butsee South-Central Timber Development v Wunnicke (1984) struck down AK lawrequiring purchasers of state-owned timber to process it in AK before shipping it out be/cstate may not impose conditions that have asubstantial regulatory effectoutside of that

particular market.

4 types of subsidy via: (1) regulation; (2) tax break; (3) market participation; (4)direct appropriations from general revenues. (1) & (2) are subject to close scrutiny .Same considerations that justify market participant doctrine seem to justify UnitedHaulers be/c acting in its government rather than market player role & Davis

P&I clause of Article IV. Protects peoples fundamental rights wherever CC doesntreach (like MP). United Building & Construction Trades Council v Camden (1984) whereCamden required 40% of city contractors & subcontractors to be Camden residents, heldthat a city can pressure private employers to hire city residents, but the same exercise ofpower to bias private contractors against out-of-state residents may violate P&I (be/cthey lack recourse to political process thinkrepresentation reinforcement. However,public employment not necessarily fundamental right under P&I. See also Supreme Courtof New Hampshire v Piper(1985) holding that rule limiting bar admission to localresidents violated P&I clause. Note corporations are not citizens for purposes of theclause. If Camden had imposed the residency requirement on all Camden businesses,would have violated P&I of out of state patrons. So ordinance is facially discriminatory,but MP might exempt Camden (so long as it doesnt violate P&I which Ct here said itmight).

The equal protection clause. AL taxed 1% on gross receipts of local insurancecompanies but 3-4% on out-of-state companies & MetLife v Ward (1985) held that ALspurpose of encouraging formation of new insurance companies in AL was impermissible.Equal protection distinct from CC legitimate purpose inquiry

MP exempts states from judicial supervision under CC; P&I reimposes scrutiny (lessrigorous?) in cases involving individuals; and = protection reimposes it in casesinvolving corporations(again maybe under less rigorous standard).

Facially Neutral Statutes w/ Significant Effects on Interstate Commerce

South Carolina Hwy Dept. v Barnwell Brothers (1938) upheld state law

prohibiting use of large trucks on state highways only rational basis reqd. But seeSouthern

Pacific Co v Arizona (1945) struck down statute limiting train lengths be/c tooburdensome on interstate commerce (also lack of safety benefits & need for uniformity in thendustry).

o Hunt v. Washington State Apple Advertising Commission (1977): Struck down

NC statute requiring all closed containers of apples sold/shipped into NC to bear no gradeother than applicable US grade be/c (1) practical effectof burdening interstate sales ANDdiscriminatingagainst them; (2) leveling effect which insidiously operates to advantage oflocal apple; (3) fraud protection claims implausible.But see Minnesota v Clover LeafCreamery(1981) upheld MN statute prohibiting milk sales in plastic disposable containersbut allowing it in paper nonreturnable cartons be/c statute served stated environmentalpurpose despite trial court findings to contrary! Ct says discriminated evenhandedly so unlikePhila & Hunt.

o Exxon Corp. v. Governor of Maryland (1978): upholdsMD law precluding any

producer or refiner of oil products from operating gas station in MD be/c discriminatesevenhandedly (just so happens all gas comes from out-of-state). Ct distinguishes Dean Milkby saying that the fact that the burden of state regulation falls on some interstate companiesdoes not, by itself, establish a claim of discrimination against interstate commerce . Instead,Ct says need benefits in-state at expense ofinterstate (Dean Milk) but the MD statute has noimpact on the relative proportions of local or out of state goods sold in MD.

Compensating use tax upheldin name of promoting equality in Henneford v SilasMason (1937 taxes goods purchased elsewhere for privilege of using them in WA so asto avoid losing local business to retailers in otherBut see Oregon Waste Systems vDepartment of Environmental Quality (1994) where $2.25 fee on disposal of waste

generated out-of-state was discriminatory and not compensatory be/c not imposed onsubstantially equivalent events. Compensating use taxes are not facially neutral.

o Kassel v. Consolidated Freightways Corp. (1981): struck down Iowa statute

enacted to prevent use of 65 foot doubles within its borders, except in cities abutting state lineor for carrying farm equipment into Iowa be/c unconstitutionally burdens interstatecommerce: trucking, which is an instrumentality of interstate commerce, backed by strongnational interest in uniformity.Balancing test employed. But see Buck v Kuykendall (1925)forced WA to give Buck (WA citizen) license/certificate to operate auto stage line betweenbe/c denial of the license would obstruct interstate commerce .

o Preemption: (1)Express. OSHA preempting IL worker safety laws. (2)Field

preemption: scheme of federal regulation is so pervasive as to make reasonable the inferencethat Congress left no room for the states to supplement it ( Farmers Educational &Cooperative Union v WDAY (1959) holding that Federal Communications Act, whichrequired broadcasters to carry some political speeches without censoring them, occupied thefield and therefore immunized broadcasters from liability under state libel laws). (3) Conflictpreemption: compliance w/ both federal and state regulations is a physical impossibility.Florida Lime & Avocado Growers v Paul (1963). 2 kinds: (i) actual conflict / physicallyimpossible (min fed law 55; max state law 50); (ii) obstacle to Congress purpose andobjectives. Crosby v National Foreign Trade Council (2000) which relied on a statutedelegating broad power to the President to devise a strategy for imposing economic sanctionson Burma to say preempted MA statute (state as obstacle to exec foreign affairs).

o Analytical Framework: facially discriminatory or discrimpurpose/intent?

Non-neutral statute: yes Phila; Hunt [strict scrutiny/per se invalid]. Is it absolutely

necessary to protect local interests (ME v Taylor)? If statute (1) seems to imposedisproportionate burdens on out of state commerce and (2) reasons state gives are

implausible, then violation of dormant CC.

Neutral statute: no (effects only incidental) Kassel (balancing)III. Other Powers of Congress

A1. The Taxing Power (when its not for revenue-raising purposes)

o US v Doremus (1919) upheld the indictment of a doctor under the Narcotic

Drug Act for selling heroin to a person popularly known as a dope fiend Congress need

only uniformly tax & motives irrelevant. But see Bailey v Drexel Furniture (1922) struck

down the Child Labor Act be/c used tax as penalty taxes must have primary revenue-

raising purpose. But mixed motives OK (sin taxes on booze & tobacco)

A2. The Spending Power

o Constitution, Art. I, 8, cl. 1

o Steward Machine Co. v. Davis (1937): upheld social security be/c did not involve

coercion of states - conduct to be encouraged/induced must (1) be for general welfare & (2)related to the tax itself. Butlersaid spending power is independent and Congress can spend onany natl purpose (provided not coercive i.e., no threat of loss but incentives OK), Stewardthen said conditional spending OKtoo provided its not coercive.

o Modern view . South Dakota v Dole (1987) where 21 y/o drinking age requirement

was upheld in order for states to get federal highway funds be/c the spending power in thatcase satisfied 4-part test: (1) for general welfare, (2) condition must be stated unambiguously,(3) condition must be unrelated to federal program , & (4) there can be no independentconstitutional bar. see also Cutter v Wilkinson (2005) prisoners in facilities that acceptfederal funds cannot be denied accommodations necessary to engage in activities for thepractice of their own religious beliefs.

A3. The War Power

o Congress power to declare war, provide for common defense, raise and support

armies and to provide and maintain a Navy extends to every matter and activity so related to

war as substantially to affect its conduct and progress (Hirabayashi v US, 1943), including

dealing w/ aftereffects (Woods v Cloyd W. Miller Co (1948) upheld constitutionality of

the Housing and Rent Act of 1947, which f roze rents at their w artime levels). Also see

Rumsfeld v FAIR (2006) upheld Solomon Amendment, which withholds federal funds

from educational institutions that deny military recruiters the same access as other

employers (campus optionality to comply renders it permissible under 1 st amend).

B. Section 5 of the Fourteenth Amendment

o Congress can create causes of action, including: Complex remedies. (SC v

Katzenbach 1966 upheld Voting Rights Act, notwithstanding its preclearance process.

Preventive or prophylactic remedies. (Rome v US, 1980 VRA preclearance again

upheld as requiring rejecting changes that eitherdiscriminatory effects or purpose (not

just purpose/facially).

o City of Boerne v. Flores (1997): Marbury on steroids. States power at risk so Ct

struck down RFRA be/c (1) 5 extends only to enforcing 14th amend provisions (akaremedial power as in SC v Katzenbach) and cannot alter the meaning of the free exercise

clause there must be congruence and proportionality between injury to be prevented orremedied and the means adopted to that end, and (2) RFRA is not preventive or remedial be/cits disproportionate - imposing heavy litigation burden on states curtailing state generalregulatory power. Ct striking back at Congress after it passed RFRA be/c it thoughtEmployment Division v Smith (1990 state can discriminate against peyote ceremonialusers) was wrong. Changed ratchet-up permissibility Katzenbach v Morgan back intocomplete judiciary oversightover Congress enforcement power, reclaiming judiciaryconstitutional interpretation power.

o 11th amend : (i ) doesnt apply if suit is brought by US govt or another state; (ii)

immunity only applies to state itself, not to state officials (liable under 1983), (iii) permits

suits against officials on behalf of states only (not cities & counties; Ex Parte Young); &

(iv) has allowed SC to limit Congress enforcement power. But held that Congress can

abrogate state immunity (PA v Union Gas, 1986)but in Seminole Tribe v FL (1996) itrejected that view held for states citing 11th. Again inAlden v ME (1999) held thatCongress could not require state courts to entertain suits by individuals seeking damages forviolation of a federal statute, where the state courts refused to do so on the basis of statesovereign immunity rules that do not discriminate against national claims - creates wedgebetween Congress essentially plenary power to regulate state economic activity and its

ability to enforce its regulations by making damages remedies available. But SD v Dole

suggests feds can use conditional spending to induce states to waive sovereig

Alden v ME holding was fortified in Kimel v FL Bd of Regents (2000 Conuse 5 to authorize a prophylactic damages remedy under the Age DiscriminatEmployment Act (ADEA) for state employees - disproportionate remedy be/c treat workers differently based on age so long as the treatment was not irrationFL Prepaid Postsecondary Education Board v College Savings Bank (1999 for lack of legislative record showing states engaged in patent discrim).

o Board of Trustees v. Garrett (2001): strikes down Title I of ADA

congruence & proportionality - legislation that treats ppl w/ disabilities differeothers only requires rational basis review applicable to general social & econoso 14th does notrequire states to make accommodation; special accommodatio

from positive law and not= protection cl. But see Nevada Department of HR

upheldthe abrogation of state sovereign immunityunder the Family Medica

1993 (FMLA) on account of findings that danger of gender-based discrimina

violation of 14th amend rendered FMLA family-care leave provisions congru

proportional. See also TN v Lane (2004) upholding abrogation of state sove

Title II of ADA (Title II, unlike Title I which dealt only w/ employment whi

itself an independently recognized constitutional right, seeks to enforce a var

constitutional guarantees, infringements of which are subject to more searc

review due process cl 14thTitle II congruent and proportional. US v GA

affirms this holding (Ct rejected GA sovereignty in face of paraplegic inma

claim since injury was actual not f uture, so no disproportionate prophylactic

o 13th amend . understood to apply to private as well as government

Rights Cases, 1883) & Jones v Alfred H Mayer Co (1968) applied 1982 to

conduct(Ps had alleged private seller refused to sell be/c they were black) - b

Boerne.

o 14th amend . US v Morrison (2000) struck down civil remedy VA

be/c disproportionate & incongruence since directed mainly against private

against state actors (whereas rights granted by 1 are good only against s

o Takeaway: After Boerne, Congress cant do much except (1) find

violations; (2) enact prophylactic or preventative remedies, but these must b

proportional (deference in traditional areas like race discrim but not in perip

discrim).

C. The Tenth Amendment

o Missouri v. Holland (1920): affirms its a truism; fed bird treaty >

amend even when feds negotiated to deliberately trump states! N&P power to

treaty into domestic law wins.But see Medellin v TX (2008) Vienna Conve

self-executing so ICJ judgment & Bush order it was based on unenforceabl

self-executing be/c this would invite interference w/ state crim procedural r

o Modern revival of 10th-based rest raints on fe ds : National League o

Usery (1976 CC did not empower Congress to enforce the minimum wage

provisions of the Fair Labor Standards Act against the states in areas oftrad

governmental functions). When feds tell states how much they need to pay w

are telling the state how to spend its federal tax dollars but this is rejected

San Antonio Metropolitan Transit Authority (1985 - traditional governmentaldeemed unworkable & Congress has the power under CC to apply the FLSAof state and local governments (noting that the same Congress that extended thcover government-run mass transit systems also provided substantial funding fsystems).Garcia represents high-water mark ofexpansive CCuntilLopez(19

Cts power to limit Congress CC authority in areas that have only an insignif

connection with interstate commerce. But see Gonzales v Oregon (2006) reje

interp of fed CSA as contrary to ORs Death With Dignity Act (in so doing p

CSA).

o NY v US(1992): "Take Title" provision of the Low-Level Radioac

Policy Amendments Act of 1985 exceeded Congress's power under the CC& access incentives permissible. Congress cant commandeer the legislative pengenders accountability problem.NY doesnotoverrule Garcia be/c in NY stato legislate whereas in Garcia state is merely being regulated as an economic a

o Printz v. United States (1997): struck down Brady Act, which requ

establish a national instant background check system, as unconstitutional delegexecutive power to enforce the law from the Pres to state officers. But feds lato achieve this otherwise, & Congress has been paying states to enforce the law

o There are limits to NY anti-commandeering: (1) does not apply to

courts/judiciary (supremacy clause but see Medellin); (2) Garcia; (3) federal

issue injunctions against state officials requiring them to comply w/ law. But

Condon (2000) upheld federal Drivers Privacy Protection Act, which comp

refraining from taking certain action - be/c didnt require states in their sove

to regulate their own citi zens, but rather the DPPA regulates states as owners

o Historically: Great Depression spawns New Deal federalism C

federalism recovers 10th balanceNew Federalism

IV. Separation of Powers and the President

B. Presidential Power -- The Steel Seizure CaseConstitution, Art. II, 1, cl. 1;

o Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case)

Foundational separation of powers case. Black: (absolutist view no emergenJackson concurrence divided exec auth vis--vis Congress into: (1) express/imCongressional auth, (2) Congressional silence, & (3) in defiance (as here sinceoptions like Taft-Hartley emergency provisions which clearly withheld auth Selective Service Act).

o Note Art I grants legislative powers enumerated herein while A

herein qualifier, suggesting as Hamilton/FDR did that exec powers are not

II.

C. Foreign Affairs domestic tyranny concerns are absent

o Constitution rests in Congress the power to declare war, to raise a

Armies and to provide and maintain a Navy, and to define and punish offens

law of nations. Senate is empowered to advise & consent on making of treat

given the exec power and made Commander in Chief, and also can make tre

ambassadors and other public ministers (although only by and with consent o

to make policy chief & primary diplomat.

C1. Executive Authority - Constitution, Art. II, 2, cl. 1

o United States v. Curtiss-Wright Corp. (1936): Congress can delega

pres to criminalize things. Foreign affairs enhances pres domestic power (thicriminal prosecution, but decision to impose an arms embargo is a foreign polUpholds Joint Reso of Congress authorizing Pres to prohibit arms sales if he fiwould help establish peace in Bolivia; CW indictment for selling arms stands.

o Dames & Moore v. Regan (1981): Modern reprise about scope of

Ct upholds Congress power to delegate the decision to create/eliminate legaUpholds exec order (which doesnt need to be signed by Congress or approveinvalidating Iran hostage crisis claims in US courts (includes D&Ms claim) an

arbitration.No contrary legislative intent indications (IEEPA & Hostage Act

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