Constitutional Law I Outline

8/2/2019 Constitutional Law I Outline

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Constitutional Law I:The Federal System

FOUNDATIONS OF THE FEDERAL SYSTEM

-federalism: promotes large republic system with representative democracy, system

checks & balances on domineering interests of factions, heterogeneity championed

• “Madisonian” view

• Federalist No. 10 representative government

o limits factionalism by increase in sphere of gov’t

o limits factions through representatives who will refine/clarify citizens’

views & act in favor of common good

• Federalist No. 51 separation of powers among diff. gov’t branches to stave off

concentration of power in 1 particular branch

o Congress most feared cured through bicameralism (Senate & House)

o balance ensured vertically (federal v. state relationship) & horizontally

( judicial v. legislative v. executive relationship)

• Federalist No. 78 judicial review will not put Supreme Court above other

branches, but will ensure will of ppl will prevail

-antifederalism: small town-hall style democracy, emphasis on citizens with

individualized/decentralized power, “civic Republicanism,” homogeneity of interests &

affluence, promoting virtue will keep factionalist domination at bay

• “Jeffersonian” view

• against federalist idea of representation

• governing ourselves will increase political participation, establish a common

good, & inculcate civic virtue

• Constitution is inconsistent with republicanism

• strong Federal Government removes the People from system of government

revolution fought against a large remote central government.

• rights of the minorities will be trampled & subjected to will of the majority

• need small, localized government where people are as similar as possible & as

involved in the political process as possible

• strong central government creates a threat of tyranny

-structure of the Constitution



• Article I : § I: “All Legislative powers herein granted shall be vested in a Congress

of the United States which shall consist of a Senate and a House of

Representatives” establishes Congress & limits its powers by words “herein

granted,” but not “expressly” b/c there are also “implied” powers

o

Art. I §§2-9: separate powers between Congress & the Stateso enumerated powers of Congress (§8) & limits of power (§9) “a

Congress of the United States” as opposed to the Articles where Congress

was the United States

• Article II : Executive power “shall be vested in a President of the United States”

o Art. II §2: non-exhaustive list, no definition of “executive power” no

limiting language on that power, argument for a strong executive not

limited to the duties listed

• Article III : “The Judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from time to time

ordain and establish”

o one Supreme Court, all others will be inferior

o §2: “the judicial power shall extend to…” implying a limit to that extent

• Article IV governs relationships of the individual States with each other & their

citizens

• Article V : how to amend the constitution

• Article VI : supremacy & significance of the Constitution

-Supreme Court approaches to Constitutional interpretation:

• textualist : ordinary meaning of text of law should govern its interpretation, can be

vague/indeterminate, Justice Scalia

• structuralist : look to overall Constitutional arrangement of officers, powers, &

relationships adhering to structural constraints of federal system (federalism),

separation of powers, democracy

• originalist : looking to original framers’ intent & how original federal system

functioned & not imposing new interpretations foreign to original intention,

Justice Thomas

• formalist : branches of gov’t must adhere to strict interpretation of roles

enumerated in Constitution

• functionalist : Constitution does not address most separation of powers issues

raised in modern government & innovative power structures should be allowed as

long as they don't allow one branch of gov’t to become too powerful



POWER OF THE JUDICIARY: JUDICIAL REVIEW

- Marbury v. Madison (1803)

• debatably most important Constitutional Law case

• 1) Marbury did have a right to his commission denied by Secretary MadisonJustice Marshall says we are “government of laws, not men” (must uphold legal

rights in all situations or else laws mean nothing)

• 2) Marbury was entitled to seek remedy of mandamus enforcing his right to

commission he is gov’t official prevented from performing official duty

• 3) SCt has power to issue mandamusMarshall reads Judiciary Act as if SCt has

original jurisdiction to issue, even though normal reading would interpret as SCt

only having appellate jurisdiction to issue

o if 2 possible readings of statute, avoid interpretation that conflicts w/

Const (later embodied by Justice O’Connor) Marshall intentionallychooses interpretation that conflicts w/ Const

• 4) Marshall sidesteps political controversy by saying not w/in SCt power to grant

under Judiciary Act interprets Const as limiting SCt ability to issue mandamus

only to appellate jurisdiction

• 5) declares Judiciary Act “repugnant to the Constitution”establishes Judicial

Review (in dicta, not in main holding), where Supreme Court is sole

interpreter of meaning of Constitution & is empowered to strike down laws

that conflict with it

o irony that Marshall grabs jud’l review power for Judiciary while at sametime denying his power to issue mandamus

o jud’l review as instrument for legitimizing power of fed gov’t in eyes of

ppl

o protects minority opinions & rights from domination by majority by

giving power to interpret Const to insulated lifetime justices

o counterpoint: Article III itself does not expressly delegate jud’l review

power to SCt (so framers did not envision such great power), people

themselves upheld Const in Revolutionary days, may prevent Const from

evolving w/ times according to ppl’s will by giving power to lifetime justices insulated from general populace

• Marshall’s structuralist arguments:

o 1) Congress has duty to check its own Const’l constraints are before it

enacts statutes

o 2) job of Judiciary to determine whether other 2 branches conflicting

w/ Constitution & check on power of other 2 to maintain balance of



federal system

• Marshall’s textual arguments:

o 1) “judicial power shall extend to all cases, in law & equity, arising under

this Constitution” [Article III § 2] as meaning jud’ry may strike down

UnConst’l Congress laws counterpoint: does not expressly say SCt may strike down Congr

laws, why does this not just mean SCt evaluate Const’lty of state

actions

o 2) Congress laws must be subservient to Constitution [Supremacy

Clause/Article VI §1, Clause 2]

o 3) judges have sworn oath to uphold Constitution

counterpoint: but doesn’t every public officer do this too?

-Cooper v. Aaron (1958)• Little Rock, Arkansas bound by Brown v. Board decision & must stop resisting

mandated desegregation of its schools

• jud’l decisions have binding power over states

• legislatures not at liberty to pick & choose which decisions they want to follow

SCt has made a ruling on Const’lty & officers have sworn to uphold Const under

Article VI §3

o stretches Marbury decision that SCt has final say on meaning of Const

here, Constitution means whatever 5+ Justices say it means

LIMITATIONS ON JUDICIAL REVIEW

- Ex parte McCardle (1869)

• McCardle arrested for criticizing Reconstruction movement, seeks writ of habeas

corpus to be brought before ct, Circuit ct rules that legally imprisoned

• McCardle appeals to SCt under Habeas Corpus Act granting SCt appellate

jurisdiction over lower ct denials of habeas petitions

• Congress repeals act under Article III §2 to remove SCt appellate jurisdiction

over case & SCt holds that it can no longer rule on this case

• Congress may for any reason make exceptions to or regulate SCt’s appellate

jurisdiction under Article III §2 (Exceptions Clause)

• SCt must limit analysis of Congressional acts to the facts & not analyze good

or bad motives of Congress SCt must respect Congr’l law unless they go



against Constitution

• Congress cannot cut off all avenues for SCt appellate jurisdiction

-United States v. Klein (1872)

• Congress passed statute declaring Presidential Civil War pardons inadmissible asevidence in seized property claims Klein had received judgment granting

recovery of gov’t-seized property

• Congress attempts to limit jud’l power here by removing SCt jurisdiction under

Article III §2 Exceptions Clause SCt affirms judgment for Klein

o Congress may not use Exception Clause power to prescribe SCt

decisions Congress had required specific finding of fact & then

removed SCt appellate jurisdiction after SCt ruling

o Congress cannot interfere with Presidential prerogative to pardon

whomever he/she wants

-Political Question doctrine: political matters are nonjusticiable & cannot be heard by

SCt & best resolved by citizens through the political process

• keeps Judiciary out of the territory of the other 2 branches

• much gov’t conduct off limits from jud’l review

• narrow view of SCt’s role nonjusticiable issue if expressly given to another

branch

• prudential view of SCt’s role by not ruling on political questions, SCt preserves

its capital for in which SCt has ability to rule ( Baker dissent)

-other limits on jud’l review:

• case or controversy requirement : Article III §2 only allows SCt to invalidate

legislative or executive actions only if brought to SCt in context of Const’l

issue in case (cannot police Const’l issues outside cases or controversies)

• standing : person bringing suit must have personal stake in claim made,

autonomy & self-determination preserved by allowing those actually injured

to seek remedies (but sometimes ignorance/poverty/alienation of those injured

may prevent such suits)

• ripeness : cases too premature/speculative to merit jud’l intervention

• mootness : SCt cannot hear cases too late where issue resolved itself

• SCt may independently decide issue nonjusticiable

• constitutional text

• original intent for Const’l framers



• social consensus : appeal to social norms for determining decision, usually in

death penalty/what is “cruel & unusual”

• constitutional precedent : judicial review bound by common law precedents of

prior cases

•

countermajoritarian difficulty : SCt might not reflect will of the People

- Luther v. Borden (1849)

• SCt asked to determine which group rep’d legitimate RI gov’t

• est’s Political Question doctrine

• under Article IV §4 Guarantee Clause, state government legitimacy is a

political question outside justiciability of SCt & to be decided by President or

Congress

o President’s recognition of charter gov’t stands, SCt decision here would

contribute to chaos on the ground

- Baker v. Carr (1962)

• TN voters claim improper apportionment based on population 60 years prior,

urban areas grossly underrep’d & UnConst’l dilution of their voting power

• SCt rules that state legislative redistricting not a political question, but

instead justiciable under workable standards of Equal Protection Clause

• SCt develops test for determining nonjusticiable political questions “Baker

Factors” test (most impt 3 below):

o resolution of issue delegated to another branch by Constitution’sArticle IV §4 Guarantee Clause

o no judicially manageable standards for resolving issue

o SCt feels prudent not to interfere jud’l resolution poses danger of

domestic disturbance, embarrassment abroad, etc

• dissent : nonjusticiable as Guarantee Clause issue as in Luther, erodes legitimacy

of SCt by throwing history & jud’l restraint aside, violation of Separation of

Powers b/w SCt & legislatures

- Nixon v. United States (1993)

• federal judge Walter Nixon convicted of perjury & voted by Senate upon

recommendation of appt’d committee claims not “tried” in compliance withπ

Article I §3 requirement that case be “tried by the Senate”

• Justice Rehnquist whether or not Senate improperly tried an

impeachment is a nonjusticiable political question



o no jud’ly manageable standards for determining proper “trying”

suggests framers did not intend for such additional limitations on Senate

o SCt cannot grant remedies that trample on Congr’l power (reinstating him,

creating new seat for him)

•

Justice Souter concurs in move not to decide this case, but does not rule out justiciability of future similar cases

-Vieth v. Jubelirer (2004)

• Democrat PA citizens contest redistricting along partisan lines by Republican-

controlled houses of PA legislature to deny their full participation in political

process under 1-person, 1-vote requirement of Article I

• SCt led by Scalia without majority opinion deemed “fairness” claim

nonjusticiable b/c no jud’ly manageable standards for resolving political

gerrymandering questionso does not explicitly overturn Davis v. Bandemer , which had deemed

political gerrymandering justiciable but failed to establish standard for

judicial review

o still no precedent set for future gerrymandering cases

o Kennedy’s concurrence SCt rightly errs on side of caution by upholding

lower ct decision, but does not foreclose possibility of developing future

standards for determining gerrymandering cases

FEDERALISM: A GOVERNMENT OF ENUMERATEDPOWERS

-forms of Federalism:

• neither state nor nation has power to act

o ex: neither state nor Congress can adopt regulations violating 1st

Amendment

•federal gov’t has exclusive power to actArticle I § 10 (states cannot),Article I §8 (Congress can)

o ex: coinage of money

• state gov’t has exclusive power to act 10th Amendment

o ex: state taxes

• state & federal gov’ts have concurrent power to act



o ex: create lower cts, borrow money

POWERS OF CONGRESS

-framers felt important to give sufficient power to federal government

• gov’t created “by the people”

• representatives of each states owe primary allegiance to ppl of the nation

• Congress is body composed of representatives of the people

o Congress may act only if:

express or implied power to do so in Constitution

does not infringe upon another provision of Constitution

o states have power to act unless prohibited by Constitution

- McCulloch v. Maryland (1819)

• James (on behalf of state of Maryland) taxed MD branch of Second Bank of U.S.

& sues when Bank cashier McCulloch fails to pay

• Constitution grants Congress implied powers for implementing its

enumerated powers in order to create functional nat’l gov’t Congress has

power to create second national bank

o 1) historical practice argument first national bank was allowed to exist

after much debate by country’s great minds overlooks am’t of controversy there actually was

o 2) rebuts compact federalism argument federal gov’t is supreme w/in

its limited sphere est’d by Constitution, based on consent of the People of

the U.S. when ratified Constitution (fed gov’t is “of the people”)

o 3) there are implied Const’l powers framers meant for leeway in

interpreting powers, exhaustive listing of every method for implementing

powers not possible in brief document

contradicts his Marbury view of mechanical reading of

Constitution potential for Congress to abuse “means” notion, but this is policed

by judicial review

o 4) Necessary and Proper Clause (Article I §8) gives Congress power to

use any means rationally related to carrying out its enumerated powers

that are not prohibited by Constitution



Hamiltonian view expressed where Congress’s Article I powers

are not limited to enumerated powers only, but allows Congress

various ways for implementing

Necessary and Proper Clause was placed w/in Congress’s powers

section (§8), not in limits section (§9)• meaning of “necessary” therefore should be interpreted in

way that empowers, not limits

• State action may not impede valid Const’l exercises of power by federal

government unconstitutional for MD or any other state to tax Bank of U.S.

o state tax on bank obstructs Congress in its Const’ly-authorized

prerogative in maintaining nat’l bank

o representation-reinforcement theory states taxing nat’l bank essentially

taxes all U.S. citizens & states are only allowed to tax their own citizens

who are represented w/in its political processes

COMMERCE POWER

-history of Commerce Clause interpretation

• 1887-1937 dual federalism: fed & state gov’t sovereign w/in own zones of

authority

• 1937-1995 almost no limits on Congress or what deemed related to its

Commerce power

• 1995-present revival of narrowly-constructed federalism

-Commerce Clause doctrinal tests used:

• “direct effects” formalist approach SCt examines statute & activity regulated to

determine whether objective criteria met:

o within “commerce”?

Gibbons (1824) all stages of business

E.C. Knight (1895) does not include manufacturing

Champion (The Lottery Case)(1914) interstate commodities that

have monetary value

after NLRB (1937), Wickard (1942) no longer

commerce/production distinction

o “among the states” (interstate effect)?



direct/indirect test direct if w/in “stream of commerce” (cannot

be separated from movement they contribute & take on character

of “commerce”)

• Shreveport Rate Cases (1914) direct

•Schechter (Sick Chickens Case)(1935) too indirect to bew/in “stream of commerce”

• after Wickard (1942) substantial effect test replaces

direct effects test & can look at aggregate effect on nat’l

mkt if intrastate & not outwardly economic

o 10th Amendment-delegated state power? (i.e. mining, manufacturing,

production)

• realist approach determine actual economic impact of regulation or motives

of Congress

o after Darby (1941) , SCt rejects motive analysis• “substantial effects” formalist approach ( Lopez)

o use of interstate commerce channels?

Heart of Atlanta upheld fed law prohibiting hotel/restaurant

discrimination thru protection of channels of interstate commerce

Darby regulation of interstate shipment of goods

travel closely related to interstate commerce

o instrumentalities/persons/things in interstate commerce?

railroads, airways

threats coming from intrastate activities Shreveport Rate Case thefts from interstate

o activities substantially affecting interstate commerce?

Katzenbach

Wickard aggregation of trivial grain-growing intrastate activity

qualifies

2 “substantial effects” subcategories:

• is this an economic activity?

• is there a jurisdictional element in statute?

Commerce Power: pre-1887

-Gibbons v. Ogden (1824)

• Ogden sues Gibbons for using federal law to operate competing ferry that breaks



its monopoly granted by NY state law Const’l

• “commerce”Marshall interprets as Congress may use Commerce power to

regulate all stages of business, including navigation

• “among the states more than 1 state intermingled

o Congress may regulate commerce w/in states when has impact onanother state

o though Congress cannot regulate exclusively internal state commerce

• 10th Amendment powers not Const’ly granted to fed gov’t but not prohibited to

states are given to states or the people

o if Congress Const’ly acting within Commerce powers, 10th

Amendment does not constrain

Commerce Power: 1887-1937

-Hammer v. Dagenhart (The Child Labor Case) (1918)

• Child Labor Act of 1916 prohibiting shipment of interstate goods produced in

factories unfairly employing child labor UnConst’l

• Congress may only regulate goods in interstate commerce, not regulate state

production narrows Gibbons (all stages) “commerce” definition

o regulating hours of labor entrusted to “state authority” wages & hours

are at production stage before exchange over interstate commerceo rejected argument that fed legislation needed to prevent unfair competition

o SCt fearful that allowing this legislation would unravel whole federal

system

• dissent (Justice Holmes):

o Congress has been given power to regulate by Constitution & SCt should

not void it b/c of its indirect effects

o civilized world recognizes “evil of premature and excessive child labor”

o states no longer w/in their separate sovereign sphere when ship products

across state lines (nat’l welfare now at stake)

o SCt should not be engaging in pretext analysis over motives of Congress

to curb child labor

-United States v. E.C. Knight Co. (1895)

• federal gov’t invoked Sherman Antitrust Act to keep American Sugar Refining

Co. from acquiring 4 competitors held UnConst’l (Justice Fuller), act cannot



reaching this monopoly on sugar prod’n

• Congress may not regulate “manufacturing” stage because it precedes

commerce

o formalist criteria used, ignoring economic impact of monopoly

• dissent (Justice Harlan):o clearly wanted to benefit from enhanced profits from no longer having∆

price competition

o gov’t cannot sit idly by while monopoly negatively affects interstate & (by

extension) nat’l commerce

-Champion v. Ames (The Lottery Case) (1903)

• Federal Lottery Act prohibited interstate transport of foreign lottery tickets held

Const’l (Justice Harlan)

•

“commerce among the states” interpreted as carrying of commodities w/ monetary value from 1 state to another

• dissent (Justices Fuller & Brewer): dangerous to give Congress general police

power without more limiting principles in place

o anything transported from place to place could be considered “article of

commerce” & from state to state “interstate commerce”

o judicial review should police times when Congress acts w/in power but

unwisely or injuriously, not blindly rely on Congress’s “wisdom &

discretion” (as Marshall did in Gibbons)

-The Shreveport Rate Case (1914)

• Interstate Commerce Commission orders TX railroads to end discriminatory

pricing structure that bypassed Shreveport in favor of intrastate route by setting

maximum rates held Const’l (Justice Hughes)

• Congress has power to foster & protect interstate commerce using any

measures necessary, even if it means regulating intrastate transactions of

interstate carriers

o must act to prevent disadvantage those who must pay higher rates to serve

same mkto used direct effects test could not effectively regulate interstate w/o

regulating intrastate

-Schechter Poultry v. United States (The Sick Chickens Case) (1935)

• Nat’l Industrial Recovery Act attempted to regulate wages, hours, prices, &

require purchase of whole poultry shipments (incl. sick chickens) held



UnConst’l (Justice Hughes)

• Congress may not regulate where not within “stream of commerce”interstate flow had halted w/in state, chickens slaughtered, & then locally

resold as separate products

o regulating wages, hours, etc therefore interferes with local business• concurrence (Justices Cardozo & Stone)

o subverts distinction b/w local & nat’l commerce would allow

anything to be deemed interstate & destroy whole federal system

• counterarguments:

o there are multiple segments of interstate commerce train stationary in

state outside of “interstate commerce”, but before & after pause qualifies

as interstate commerce

o arbitrary drawing up of “interstate” lines here these are the same

chickens that were shipped & were transported via interstate methodso allows competitive discrimination to go unregulated Schechter would

undercut farmers beyond state line who raise chickens regulated by their

state’s law (which Schechter would not have to follow)

-Carter v. Carter Coal Co. (1936)

• Bituminous Coal Conservation Act created labor boards for employee collective

bargaining held UnConst’l (Justice Southerland)

• Congress may not regulate production stage (employment, wages, hours,

working conditions, & bargaining), only trade itself o temporal distinction b/w stages of interstate commerce, in terms of

beginning & end of “interstate commerce” ( E.C. Knight )

o everything that moves in interstate commerce has had a local origin

(Schechter )

o costs obtaining coordinated state action justified to prevent threats to

federalist values

o distinction b/w “direct” & “indirect” effect depends on manner in which

effect brought about, not upon magnitude of cause or effect

mining stage is not “interstate commerce” these evils are localevils to be resolved using state power, not federal power

Commerce Power: 1937-1995



- NLRB v. Jones & Laughlin Steel Corp. (1937)

• Nat’l Labor Relations Act est’d comprehensive system regulating labor-mgmt

relations practices held Const’l (Justice Hughes)

• Congress has power to protect against burdens from activities having “close

& substantial relations” to interstate commerce more flexible direct/indirect test

o Congress cannot be denied power to control intrastate industrial

strike (effect of unfair labor practices regulated) threatening to

obstruct interstate commerce

o defers to Congressional findings making strong connection to interstate

commerce

o ends prior SCt pattern of striking down New Deal legislation & greatly

increases Congress Commerce Power

• dissent (Justice McReynolds):o Congress interference w/in states should be limited to “direct and

material” violations (like taxation on property that indirectly but seriously

affects cost of transportation, Shreveport Rate Case) Congress has

overreached b/c relation is too attenuated

-United States v. Darby (1941)

• Fair Labor Standards Act of 1938 prohibited shipment of goods made by workers

paid below federal minimum wage/above maximum hours held Const’l (Justice

Stone)• Congress power to regulate interstate commerce neither enlarged nor

diminished by non-exercise/exercise of state power & may act to prevent

states from using sub-standard practices to gain advantage w/in interstate

commerce (disadv’s states following more costly standards)

o SCt will no longer allow pretext analysis of Congress to enter ct

rulings in no position to judge this

o 10th Amendment has no independent power to intrude upon plenary

power of Congress acting w/in its Const’l constraints (state powers

irrelevant here)

• 10th Amdmt just meant to ensure Congress does not act without its

Const’l powers & it has not done so here

o echoes McCulloch’s rational basis review (means-end

regulation)Congress may regulate production here b/c it has

prohibited shipment of goods created by this production



o could also cite Lottery Case rejects separate stages of commerce

o this is a necessary interplay b/w needs of the People & SCt SCt must

focus on what ppl of U.S. as whole need

• no dissent voiced counterarguments?

o nearly overrules Schechter & Child Labor Case work practices are atthe production stage

o danger of Congressional general police power

• counter-counterpoint : no danger b/c limited to only that which

obstructs interstate commerce

-Wickard v. Filburn (1942)

• Agricultural Adjustment Act sets quota for wheat production b/c total wheat

supply would exceed normal yr’s domestic consumption & export needs held

Const’l (Justice Jackson)• if local activity exerts substantial aggregate economic effect (not necessarily

individual ’s effect), Congress can regulate even though not facially related to

interstate commerce

o no longer earlier indirect v. direct effects formula of earlier Commerce

cases

o Congress must be able to restrict both what produced for mkt & also

what withheld from mkt b/c significantly influence prices & mkt

conditions

tend to flow into mkt if prices go up if not entered into mkt, these products satisfy local needs that

would otherwise be met by mkt purchases

o no more distinctions b/w stages of commerce

o in line w/ Gibbons view of expansive Commerce power

• counterarguments:

o dangerous to allow fed political officials to use Commerce power to

become sole judges of limits of own power

o state/local interests not protected by nat’l political process, need judicial

review to step in

- Heart of Atlanta Motel v. United States (1964)

• Title II of Civil Rights Act of 1964 ensures all persons full & equal enjoyment of

public goods/services/accommodations w/o discrimination or segregation based

on color/race/religion/nat’l origin held Const’l (Justice Clark)

• Congress may act against discrimination where aggregate qualitative &



quantitative impact on interstate commerce

o racial discrimination disrupts commerce among states by discouraging

travel of substantial portion of U.S. population (aggregate effect )

Congress may remove this obstruction to commerce

o Congress motives behind this use of Commerce Clause clearly moralo rational basis review: means by which Congress acts must be reasonably

adapted to end

-Katzenbach v. McClung (1964)

• Title II of Civil Rights Act claimed UnConst’l by Ollie’s BBQ (located on state

highway 11 blocks from interstate highway, almost half meat bought out of state,

employees 2/3 Afr Ams) held Const’l (Justice Clark)

• Congress may regulate establishments serving interstate travelers or food

moved in interstate commerceo discrimination in restaurants cumulatively affects interstate

commerce interstate travel affected, decreases sale of interstate

goods, business suffer, & new business deterred from these areas

o may aggregate even trivial interstate activity (here, discrimination) to look

at nat’l effect

• concurrence (Justice Black):

o inability of sizable portion of U.S. population would otherwise be unable

to lodge/eat & would disrupt travel & interstate commerce

o Const’l under both Commerce & Necessary and Proper Clauseso Black likely signals to similarly-situated white men that time to move past

discrimination

Commerce Power: 1995-present

-United States v. Lopez (1995)

• Gun-Free School Zones Act makes federal offense to knowingly possess firearm

w/in 1,000 ft of public/parochial/private school zone held UnConst’l (Justice

Rehnquist)

• cannot stretch facts here to fit tri-partite interstate commerce test b/c would

allow Congress to exercise states’ general police power

o clearly no economic effect here no evidence of: (1) use of interstate

channels, (2) instrumentalities/persons/things in interstate commerce, or



(3) activities subst’ly affecting interstate commerce

insufficient claim that guns near school may result in violent

crime to subst’ly adverse effect on economy

lacks sufficient proof that gun had been part of interstate

commerce• concurrence (Kennedy & O’Connor): most states already have gun safety laws

having same goals as this federal law & must protect states’ rights to handle

matter

• dissent (Breyer)

o local instances as whole create nat’ly significant problem

guns in schools do negative impact on economy by threatening

ability to teach basic skills

like Katzenbach, bizs & families less likely to locate where

violence exists

o difficult to distinguish “commercial” v. “noncommercial” here

noncomm’l activities of teaching basic skills in school have

serious impact on state commerce social & commercial

purposes strongly intertwined here

-United States v. Morrison (2000)

• Violence Against Women Act provides damages for victims of gender-motivated

violence

o Congress shows that this act fills state inadequacy & quantifiable costs to

intra-state travel by women activities subst’ly affect commerce

• holding: act UnConst’l

o must maintain enumerated powers & allow state laws to regulate

gender-motivated crimes Congress would have excuse to regulate any

crime in any state argued to have aggregate impact subst’ly affecting

employment, production, transit, consumption, etc.

o goes further than Lopez to provide bright-line rule: Congress cannot

regulate non-economic activity based on aggregate subst’l effect oninterstate commerce

TREATY POWER



-does 10th Amendment constrain Treaty Power?

• enumerated limits on Congr’l power rarely affect Treaty Power

• 2 kinds of treaties:

o self-executing treaties: require no add’l Congr’l legislation to implement,

simply needs to be ratifiedo non-self-executing treaties: requires legislation passed by both Senate &

House before can be ratified

- Missouri v. Holland (1920)

• state of Missouri affected by Migratory Bird Treaty of 1918 (later ratified by

Congr’l statute) w/ Britain protecting migratory birds & Missouri claims 10th

Amendment violated by fed encroachment on its state rights

• holding (Justice Holmes): MBT Const’l Articles II (authorizes Congr’l

treaties) & VI (treaties supreme law of land) grant fed gov’t power to maketreaties & rejects any 10th Amdmt limits on Treaty Power or statutes related

to it

o treaty power broader than other Congress powers to enact statutes

• “there may be matters of sharpest exigency for nat’l wellbeing that

act of Congress could not deal w/ but that a treat followed by such

an act could”

o high nat’l & int’l interest as compared to state’s interest birds only

transitorily w/in state & are not permanent residents there

• counterpoint : if a law can be invalidated for violating 10th Amdmt by undulyburdening state gov’ts, why should treaty be allowed to do so?

• counterpoint : subst’ly affects state b/c migratory birds essential to controlling

pests affecting state agriculture & bird-watching is related to state tourism

SPENDING POWER

-arguably Congress’s most impt power

can utilize Spending Power to regulatealmost anything for “general welfare”

• hard for states seeking federal funds to resist Congress’s wishes

• political process not adequate state protection against Spending Power

• largest transfers of fed funds to states involve interstate transportation

-United States v. Butler (1936)



• Agricultural Adjustment Act stabilizes agricultural prod’n prices by paying

farmers not to produce too much wheat

• holding (Justice Roberts): AA Act UnConst’l b/c though Congr’l power to

spend public funds for general welfare are not limited by Article I §8, these

legitimate means lead to an UnConst’l end of federal gov’t impermissiblyregulating state production

o last year (1936) of formalism states solely reign production stage

o Congress may spend any way for general welfare as long as does not

violate another Const’l provision (here, encroaches on states’ 10th

Amendmt rights)

• dissent : Congress’s unlimited taxing & spending is not enumerated & must

be subject to limitations:

o purpose must be nat’l

o cannot use coercion to control states (withholding funds is akin to strong-

arming states)

o political accountability will police

-Steward Machine Co. v. Davis (1937)

• Social Security Act allows employers up to 90% reduction in fed taxes if also

make contributions to Sec of Treasury’s certified state employment fund

o only 5 states had unemployment laws at this pt b/c fear of possible harm to

businesses in fragile economy & could lead businesses to leave states w/

such pro-employee laws problem nat’l in scope calling for nat’l solution• holding: Const’l Justice Cardozo’s use of Spending Power test: (1) not

coercive by Congress, (2) Congr’l spending requirements related to subject

matter in question

o states have sympathetic interest in unempl’mt compensation (some

already enacted unempl’mt) & no states have complained of duress no

uneven competitive adv of states gaining businesses if all states req’d

to have this fed law, does not harm free will of states, or seem

“coercive”

o fed act incentivizes employers to assist states w/ burden of compensating

its unemployed citizens legitimate use of Spending Power as means

to answer a related fiscal unempl’mt need

• counterpoint : to deem this Const’l is even more objectionable than Butler b/c

Congress’s attempt directly changes state legislative processes to interfere

w/private end recipients w/in states (as opposed to more indirect & general



interfere of state industries as whole)

• counterpoint : disproportionately harms different states that may have fewer

workers or states that already have state unemployment laws may more

adequately benefit their citizens forces on nat’l uniform standard where state

employment situations not uniform

-South Dakota v. Dole (1987)

• Sec of Treasury withholds fed highway funds from states not adopting age 21 as

minimum drinking age

• holding: federal drinking age is Const’l b/c sufficiently related to general welfare

& safe interstate travel

o Chief Justice Rehnquist’s 5-part restrictions on Spending Power:

(1) must be for “general welfare” (up to Congr’l judgment)

•

Congress has rational basis for acting to protect interstatetravel safety inconsistent state drinking ages could

incentivize drinking & driving

(2) conditions for receipt of fed funds must be unambiguous

• gives states clear message on what is required so can

sufficient judge whether to dispute

(3) fed grant conditions should be related to particular nat’l

program interest

• loose standard here

(4) fed fund conditions must not conflict w/ Constitution

(5) conditions must not be “coercive” (& assume free will)

• Congress only mildly encourages states here b/c state here

only subject to possible 5% loss in fed funds for not

complying

• dissent : need clearer “relatedness” requirement b/c drinking age too tangentially

related to highway use to fairly bar state access to fed funding

• counterpoint : even 5% fed fund loss could mean significant loss to certain relying

more heavily on highways or that are poorer

•

counterpoint : no way for Spending Power not to be coercive b/c fed fundrecipients may be so beholden to Congress that not compelled to sue for fear of

retaliatory loss

-hypo: could Congress require states accepting fed funds for elementary & secondary

education to ban possession of guns near schools (achieve w/ Spending Power what could

not do w/ Commerce Power)?



• applying Dole test:

o (1) yes, general welfare rationally served by increased education funds &

reduced gun crimes near schools

o (2) yes, requirement of banning gun possession near schools in exchange

for fed funds is unambiguouso (3) yes, gun possession sufficiently related to interference w/ federally-

funded education (at least as related as drinking & driving)

o (4) yes, Const’l b/c education funding is not exclusive state right

o (5) maybe not “coercive” depends on how much funding cut, some

schools/states may be more dependant than others

• Const’l under Spending Power:

o (1) rationally w/in general welfare

o (2) no guns near school unambiguous

o (3) sufficiently related under Dole fear of gun use may make

educational funds go to waste if impedes learning

o (5) not coercive schools can simply seek other funding sources (state or

local) if disagree w/ fed gov’t, no unfair advantages compelling business

to go to other states not adopting this

• counterpoints:

o (3) tenuous relatedness under 10th Amdmt fed funds are for education,

not crime prevention (individual state’s concern)

o (4) questionable constitutionality if offends 10th Amdmt state rights

o (5) more “coercive” compared to Dole 100% fed fund loss at stake, not

merely 5%

impermissible to withhold fed education funds school rely on

these funds to function

states would have to surrender their sovereignty to prevent full fed

fund loss

ENFORCEMENT POWER (OF RECONSTRUCTION

AMENDMENTS)

-13th (Ending Slavery), 14th (Citizenship by Birth, Equal Protection, Due Process), &

15th (Equal Voting Rights) “Reconstruction” Amdmts expand Congr’s enumerated

Article I §8 powers gives Congress independent authority to enforce prohibitory

provisions of 13th, 14th, & 15th Amdmts



• Enforcement Power mainly comes from 14th Amdmt §5

• 10th Amdmt model of limited enumerated powers & state prerogatives

intentionally set aside & does not apply to Enforcement Power

o can accomplish what Commerce Power cannot b/c can abrogate state

sovereignty under Enforcement Powero brings forth new Separation of Powers concern b/w SCt & Congress

infringes upon sole right of SCt to interpret Constitution est’d in

Marbury

• Congress can directly provide causes of action for citizens whose Equal

Protection/Due Process rights violated

• Congress can provide complex remedies by allowing to directly enforce

rights guaranteed by Amdmts thru legislative provisions & investigations

(remedies otherwise unreachable thru adjudication)

• Congress can directly provide preventative remedies against violations

having discriminatory effect (not just discriminatory intent)

-permissible use of Enforcement Power assessed thru Congruence & Proportionality

test est’d in Boerne Congress must show evidence its act’s protective measures

congruent w/ a state practice impinges on 14th Amdmt protection of Due Process &

Equal Protection & that legislation proportional to violation

-Katzenbach v. Morgan (1966)• §4(e) of Voting Rights Act prevents denial of voting rt on basis of inability to

read/write/understand English of anyone successfully completed 6th grade in non-

English school

• holding: §4(e) Const’l Congress has Amdmt 14 §5 power to protect NY Puerto

Rican community against gov’t voting discrimination

o Congress had rational basis in empowering by rt to vote &

eliminating discrimination (SCt does not require proof of discrimination)

o Congress may independently interpret & enforce 14th Amdmt (does

not require SCt adjudication to repeal state discrimination)• dissent : impermissible to allow Congress authority to negate Const’l

authority of states & offends SCt sole prerogative to interpret Constitution

-City of Boerne v. Flores (1997)

• Religious Freedom Act protects against state statutes “substantially burdening”

person’s free exercise of religion w/o compelling gov’t interest 14th Amdmt



interpreted to implicitly protect explicitly guaranteed 1st Amdmt rights

• holding: Act UnConst’l RFRA exceeds Congress Enforcement Power

o Congress may not use Enforcement Power to create new rights or

expand scope of other Amdmt rights (limited to creating

preventative/remedy laws)o Enforcement Power went beyond “congruence & proportionality ”

test no examples/evidence of state animus given in passing RFRA (no

congruence) & so broad that applies to entire country (not proportional to

Oregon offense)

o Congress only has ability to enforce Reconstruction Amdmts, not to

determine what constitutes a Const’l violation or change SCt

precedent standards

-United States v. Morrison (2000)

• Violence Against Women Act passed after evidence showed that states failed to

adequately investigate & prosecute gender-related crimes

• holding: UnConst’l as use of §5 of 14th Amdmt must involve state action

needing correction for Congress to use Enforcement Power

o Act’s remedy not “congruent” (regulates state but the gender-related

violence not committed by state or state actor) or “proportional”

(individual gender-related crimes)

• dissent : state’s inability to create protective laws for its citizens should be

corrected by Congress

IMPLIED FEDERALISM-BASED LIMITS ON CONGRESS’SPOWERS: “STATES’ RIGHTS” UNDER 10TH AMENDMENT

-10th Amendment: powers not delegated to federal branches are left to the states

• whether or not 10th Amdmt (& federalism, generally) limits Congress’s power

to compel state actors, as it otherwise could w/ individual actors w/in states

• SCt trying to protect process of state governance by letting states set own agenda

& further local participation in state processes

-Garcia v. San Antonio (1985)

• Fair Labor Standards Act extended to state gov’ts to require employers to provide



minimum wage & overtime pay

• holding: Act Const’l overrules Usery “traditional gov’t functions” test

making states immune from fed legislation

o political processes (states’ representatives’ power in Congress &

electoral college) are sufficient protector of states’ rights• dissent : political processes not sufficient protection against Congress

- New York v. United States (1992)

• “Take Title” provision of radioactive waste act attempts to gain state compliance

by giving rebates to states from charges on waste coming in from out-of-state

• holding: UnConst’l Congress can in no way compel states to enact or

administer regulations/laws without offending 10th Amdmt, no matter how

compelling fed interest is

o coerces states into becoming agents of fed gov’t states forced to bear

consequences of enforcing this fed law, but have no discretion in its

implementation

o cannot blur lines of accountability make clear that fed gov’t is IDing

waste sites in states & not states simply being forced to comply

o undermines voter incentives to participate thru local gov’t

-Printz v. United States (1997)

• Brady Act compels states to mandate bkgrd check on gun buyers

• holding: UnConst’l upholds New York decision that under no circumstances

can Congress commandeer state administration

o New York accountability problem state officials would be held

accountable for federal limit on gun sales

o it is SCt’s role to protect federalist structure of Constitution

o offends Separation of Powers b/c not role of Congress to execute laws

under Article II not Congress’s enumerated or historical role

DORMANT COMMERCE CLAUSE: JUDICIALPROTECTION OF MARKETS AGAINSTASSERTIONS OF LOCAL POWERS



-Dormant Commerce Clause: Commerce Clause (thru its own force & w/o nat’l

legislation) gives SCt power to declare state & local laws UnConst’l if place undue

burden on interstate commerce

• judge-derived power

• justifications:o framers’ concern over protectionism where states bar trade to protect

economic activities of state’s residents impedes economic development

by keeping goods/capital from places where more valued, impairs nat’l

unity

o promote economic efficiency state protectionism impedes commerce,

more costly for Congress to act as opposed to Judiciary

o states & their citizens should not be harmed by laws in other states where

they lack political representation contrary to unified nat’l economy,

Judiciary needed to fix this political defect, Congress alreadyoverwhelmed by own duties

• arguments against:

o not mentioned in Article I §10 restrictions on state power

o should be left to political process cannot interfere w/ basic federal

structure of state gov’ts allowing state citizens control over governors in

order to secure benefits for themselves

o not permissible task for unelected Judiciary

o Congress, not Judiciary, may review state laws

counterpoints

:• unrealistic to expect Congress to review vast array of state

& local laws might be challenged as burdening interstate

commerce

• deference to political process not necessary b/c those

affected by state’s law not rep’d w/in state

o minimize instances where states & local laws invalidated federalism

issue

-test for const’l use of Dormant Commerce Power:

• 1) ask if what state/locality did is discriminatory (did state/local treat out of

state interests differently than in-state interests)?

o 3 types of discriminatory laws:

on its face (expressly discriminatory)

discriminatory purpose

discriminatory effect



o if fits any of these 3, almost always considered per se invalid & held to

utmost scrutiny must show that no other nondiscriminatory way to

achieve legitimate local interest ( Maine quarantine/health law was one of

few exceptions)

• 2) if not found discriminatory, then use balancing test to determine whetherburden imposed on interstate commerce is reasonable or excessive in relation

to local interests

PROTECTION AGAINST DISCRIMINATION & SUBSIDIES

-City of Philadelphia v. New Jersey (1978)

• NJ law limits out-of-state waste to avoid public health overflow problem & keepinstate prices on waste disposal cheaper for its citizens

• holding: UnConst’l state/local laws may discriminate against another state’s

articles of commerce on its face or in effect

o state law not preempted by fed law (as petitioners claimed)

o insufficient rationale that law only bans “valueless” waste ALL objects

of interstate trade merit Commerce Clause protection when interstate

movement restricted

o states may not discriminate against out-of-state articles w/o legitimate

reason for treating them differently

o out-of-state waste no more worthy of being quarantined that in-state

waste trash by definition not a health threat, much less from out-state,

& NJ made no moves to export own trash to other states for fear of “health

threat”

o allowing NJ to deny import of waste now may keep other states from

retaliatorily denying future NJ needs to export its own waste if need

be

o

out-of-state burdens exceed local benefits, so SCt sees no need toreview detailed economic effects (which it lacks expertise to do without

Congr’l findings)

counterpoint : SCt not qualified to invalidate such state laws if

lacks expertise to do full cost-benefit analysis

• counter-counterpoint : SCt always limited by evidence

presented to it in a case & does not impede ability to



interpret Const

• add’l arguments for holding:

o waste is NOT valueless private companies pay a lot to dispose of

garbage

o Const’l quarantine laws cover a very narrow public health concern,whereas NJ has made overly broad ban

o NJ had nondiscriminatory alternatives to this discriminatory law could

have restricted ALL (in- & out-state) waste going into landfill, could

have made generalized public health regulation on waste affecting

BOTH in- & out-state

• dissent : there is no distinction b/w contagion & increasing danger that waste will

pile up & later pose public health/safety hazard

-C&A Carbone v. Clarkstown (1994)

• Clarkstown, NY subsidized private waste station by guaranteeing minimum flow

to it & allowing it to collect fee for service & town ordinance enacted req’d all

solid waste w/in town to this station

• holding: ordinance UnConst’l state/local gov’ts may not regulate to favor

local biz by preventing out-of-state competitors, especially in light of nat’l

economic market implications

o harms interstate commerce by driving up costs for out-of-state

interests disposing waste w/ other stations like Carbone (out-of-state

bizs deprived of access to local mkt)

o because waste profit likes in processing/disposal service & ordinance

restricts profits to 1 favored state operator at cost of other stations do

biz with & serves out-of-state interests

more severe discrimination that Dean Milk (where milk production

required to be w/in certain town radius) b/c here insulates the

entire municipality of Clarkstown

o there are nondiscriminatory alternatives for adv’ing legit local

interests

out-of-state flow could advance local processing interests as well

Clarkstown could have used general revenue (taxes or municipal

bonds) to subsidize, but not earn revenue via open mkt by passing

discriminatory regulation

• concurrence: no geographic discrimination where in-staters also affected, but

since they have political representation in state, out-state burden excessive in



relation to purpose

• dissent : there is enough of legitimate public safety motivation to not dismiss

as protectionist municipality itself is using financing mechanism for

consolidating its processes

-justifications for subsidies

• state raising general revenues has right to use for benefit of its residents

one of purposes in having states in the first place, otherwise would have lot less

social utility for citizens w/in states

o ex: state colleges allow reduced tuition for in-state students not available

to out-of-state students SCt views as different from tax/regulation for

state interests

• less coercive than taxes not as facially coercive in how affects out-of-state

interests• may seem less hostile against nat’l unity

• more politically visible less likely to be imposed surreptitiously or excessively

-West Lynn Creamery v. Healy (1994)

• MA taxes milk sale of in-state & out-of-state producers that go to subsidy fund

given to in-state producers

• holding: UnConst’l

o tax-subsidy combination is as discriminatory as tariff tax

evenhandedly affects in- & out-staters but more than offsets burden to

in-staters

o cannot assume that pricing order Const’l merely b/c its components

are Const’l combination dangerous b/c:

diverts mkt share to in-staters at expense of out-state

state political processes fail to correct this legislative abuse b/c

out-staters not rep’d & in-staters no incentive to lobby against

policy favorable to them

• concurrence: states may subsidize in-state industry thru non-discriminatory taxes

that go into state general revenue fund

• dissent :

o in-state interests not uniformly appeased by local subsidy (in-state

consumers & milk sellers), so out-state interests can be sufficiently

championed

counterpoint : highly unlikely that at least consumers will be so



organized or informed on issue as to oppose discriminatory order

o SCt cannot permissibly base its Const’l analysis on interest grp

participation in political processes (manner in which state subsidy

promoted)

FACIALLY NEUTRAL STATUTES THAT BURDEN INTERSTATECOMMERCE

-evaluating Const’lty of facially neutral statutes effecting interstate commerce

• look for discriminatory purpose patterns of exemptions, statements by

statute sponsors

•

if discriminatory purpose

look at whether state legislature acted w/in itsprovince & if regulatory means reasonably adapted to end sought

o though not for SCt to weigh all conflicting interests involved, only decide

whether entirety of legislative choice was w/o rational basis

• analyze sheer burdens/costs/loss of competitive advantage to interstate

commerce

-South Carolina v. Barnwell (1938) SCt upholds state law prohibiting lg trucks on its

highways, looks at whether means adopted by state legislature appropriate for ends

sought (protecting local interests)

-Southern Pacific v. Arizona (1945) statute limits length of trains running b/w states &

interstate trains affected found UnConst’l, discriminatory b/c not legitimate safety

concern & would cost more to use more (short) trains

- Minnesota v. Clover Leaf Creamery (1981) MN law prohibits milk in plastic

containers, not discriminatory burden against out-of-staters b/c all required to use

paper cartons

Facially Neutral Statutes with Significant Effects on InterstateCommerce

-states may only alter distribution of wealth among in- & out-of-state producers



patterns of interstate trade or in local industries, but cannot reduce interstate trade in

entire state economy

- Hunt v. Washington State Apple (1977)

• NC statute req’s all closed apple containers sold/shipped in state to showapplicable US Dept of Agriculture grade & WA must alter/repack/stop using pre-

printed containers w/ superior WA grading standard

• holding: NC regulation UnConst’l

o unlike in-state producers, out-state producers must bear incr’d cost of

re-marketing in add’n to burden of distance from NC market

o statute takes away WA fairly-won competitive adv of its more expensive

grading & reduces to level of NC producer either forces out-stater to

cease NC sales or at least deprive of deserved mkt premium

o statute actually worsens deception & confusion by depriving

purchasers knowledge of closed container quality

o there are non-discriminatory alternatives (that may also confuse, but do

not interfere w/ mkt forces of interstate goods) could allow both

concurrent state & US grades, ban any state grades below US

standard req’d by NC

Facially Neutral Statutes with (Merely?) Disproportionate InterstateEffects for Commercial or Social Purposes

- Exxon v. Maryland (1978)

• MD statute prevents petroleum producers/refiners from operating MD retail

stations Exxon & other vertically-integrated (producer/refiner + retailer) claim

burdens out-of-state

• holding: MD statute Const’l

o no disproportionate treatment possible when ALL gas supply from

out-of-state & NONE from local (100% of goods came from out-state)o common discriminatory factors not met:

• no barriers against interstate dealers

• no barriers against flow of interstate goods

• no added costs placed on interstate goods

• no distinction b/w in- & out-state retailers



• no impact on relative proportion of sales b/w in- & out-state

retailers

o Commerce Clause meant to protect interstate mkt from burdensome

regulations, not particular interstate firms

• dissent :

o there is de facto discriminatory effect b/c 99% those protected are in-

state & 95% of those excluded from mkt are out-staters (significant

hardship not experienced by in-state)

o potential for discriminatory effects b/c profits mostly from services,

not just sales

o out-of-staters harmed cannot gain relief thru political process b/c not

MD constituents

o commercial transactions (repeated buying & selling of goods/services),

not just quantity of goods entering from out-of-state negatively

affected

Facially Neutral Statutes with (Merely?) Disproportionate Effects for Police Power Purposes

-striking a balance b/w local police power concerns & protecting interstate commerce for

facially neutral safety laws

• rational basis test for non-protectionist purposes of state passing law

• no requirement that litigant show discriminatory intent of law

• Kassel difficult decision at time b/c highways traditionally domains of states b/c

no interstate highways before 1950s

o SCt will regulate transport safety law on case-by-case basis, less of

presumption of deference here, balance specific evidence of alleged

safety w/ burden on interstate commerce

-Kassel v. Consolidated Freightways (1981)

• IA statute prohibiting use of trucks over 60 ft w/in state claiming 65 ft doubles

more dangerous & law promotes safety & reduces road wear by diverting truck

traffic to other states

• holding: IA truck-length limitations UnConst’l out-of-staters bear costs to

benefit of in-staters to unduly burden interstate commerce



o alleged safety benefits proven illusory (therefore less deference due)

no significant add’l danger of jackknifing (concrete counter-

evidence)

time req’d to pass irrelevant b/c no issue of crossing into oncoming

traffic when passing backing up ability insignificant on a highway

o out of step w/ laws of surrounding states to detriment of interstate

commerce

must route around the state or detach & ship separately to enter

state incr’s interstate inefficiency & expenses

may actually aggravate # accidents b/c restriction req’s more

highway mileage (evidence shows proportional to incr’d accidents)

exemptions for in-staters benefit at cost of neighboring states

(burdens other states’ highways & inefficient for truckers)in-state border cities & farm vehicles benefit of using longer trucks

w/o adding wear to its own state’s highways

• concurrence: look at actual stated purpose & strike down for that reason (words

of IA governor in veto message) evidence that IA just trying to prevent wear of

its own state highways & place safety burdens on other states

o counterpoint : problematic to assign blanket motive to passing law b/c

likely multiple diff motives at play

• dissent : this law not unusual as compared to other states (17 other states &

DC)o every state regulates length of highway vehicles not motivated by

protectionism, but legit safety concerns of time when law passed

o unless pretext for discrimination, should defer as long as rational

safety benefits related to law only when safety benefits extremely low

& interstate burdens extremely high

o unfair to assign protectionist motives based on 1974 statement when law

passed in 1963 should instead look at motives contemporary w/ law

passing (1960s)

-hypo: state exempts in-state bonds from taxation while not exempting out-of-state bonds

& virtually every state does similar thing

• UnConst’l b/c facially discriminatory

o on its face, treats in-state interests differently than out-of-state

interests per se invalid



o strict scrutiny shows as protectionist & incongruous w/ nat’l unity

o slight benefit to MA interests do not justify out-of-state discrimination

o conflict of interest where state participating in competitive bond mkt

while also regulating that mkt to its benefit

o alternative nondiscriminatory ways to raise revenue subsidize in-stateindustry thru non-discriminatory taxes that go into state general revenue

fund (Scalia West Lynn concurrence)

• Const’l b/c not discriminatory against out of state interests

o only in-state residents are affected, so no political representation issue

where all affected are state’s constituents

o raising revenue is legitimate state interest subsidization is essential

state gov’t tool for raising revenue from those who benefit from state

as residents

o this is an internal state decision & fed cts may not decide which state

gov’t activities appropriate to undertake & which activities are

province of private mkt competition

SEPARATION OF POWERS

-2 levels of separation:• horizontal Executive v. Judicial v. Legislative

• vertical state v. federal

-framers’ intent behind separating powers

• promote efficiency less confusion on responsibilities & division of labor b/w

branches allows them to develop expertise in their own realms

o some say we only have gov’t dysfunction today, not efficiency

o others say adhering to separation keeps gov’t from exerting too much

power• prevent majoritarian tyranny 19th century assumption that gov’t infringes

upon (rather than enhances) individual liberties

o Executive today goes far beyond framer intent

o fear of Legislature’s ability to redistribute wealth & democracy thru

representation seems largely unfounded (though wealthy can afford

lobbyists paid to champion their causes)



-Federalist No. 47 (Madison) Montesquieu did not intend for hermetically-sealed

branches, but merely as check to balance out power of each

-Federalist No. 48 (Madison)

3 branches connected yet separated ensures gov’t freefrom tyranny, fear of 1 branch aggrandizing too much power

-Youngstown (The Steel Seizure Case) (1952)

• Pres Truman seized private steel plants in fear that possible strikes would

compromise steel production necessary for U.S.’s Korean War efforts

UnConst’l (Justice Black)

• Pres has no inherent power to seize private property b/c no enumerated

Article II authority or statutory authority conferred by Congress

o

textualist

not mentioned in Art. II & Congress had intentionallywithheld statutory authority to do so by drafting alternative to seizure in

Taft-Hartley Act

o formalist Executive reaching dangerously to “lawmaking” power

reserved only for Congress by not limiting to only “law-executing” of

Congress’s policies

o formalist Pres’s enumerated Commander-in-Chief power does not

include seizure of property, much less seizure of American property

• concurrence (Justice Jackson) 3 categories for determining separation of

powers b/w Pres & Congress:o (1) authorized explicitly/implicitly by Congr’l act

Pres’l actions strongest here

o (2) when Congress has remained silent on issue

must interpret whether silence means consent or disapproval

o (3) when Congress has explicitly/implicitly disapproved

difficult to rationalize Pres’l action here

Jackson sees Pres’l seizure as against Congr’s wishes implied from

statutory silence & failure to act twice

textualist

Art. II grants supplying of armed forces (steel) to

Congress, not a duty of Pres as Cmdr-in-Chief

“ours is a gov’t of laws, not men” Pres’s seizure improperly

threw out adherence to law for sake of emergency

legislative history (Fed No. 48) Pres’l emergency powers only

properly exercised when checked by other branches



• counterpoint : this was actually a pro-labor move that would have allowed Pres to

appease striking steel workers w/ higher wages

• counterpoint : framers must have envisioned emergencies where Pres must act

immediately & cannot wait for Congress to grant him legislative approval

FOREIGN AFFAIRS & EXECUTIVE POWER TO

DECLARE LAW

-enumerated foreign affairs powers

• Congress

o declare war

o raise & support armyo provide & maintain navy

o regulate commerce w/ foreign nations

o Senate advise/consent to Pres’l treaties

• President

o power to execute Congr’l legislation

o Cmdr-in-Chief of army & navy

o make treaties

o appt ambassadors & public ministers

o receive foreign ministers

-foreign affairs paradigms

• balanced inst’l participation : balancing overlapping powers, except those

specifically enumerated as exclusive to 1 branch

• unchecked executive discretion : all foreign affairs are exclusively executive &

Congr’l req’s Exec concurrence w/ Jud’ry review to ensure Congr is

consulted/not tread upon

o ex: Justice Thomas Hamdi dissent Pres has inherent unchecked

discretion during wartime

TREATIES & EXECUTIVE AGREEMENTS

-Curtiss-Wright (1936)



• facts: C-W prohibited from selling arms to conflict-ridden Bolivia by joint Pres-

Congress resolution

• holding: in realm of foreign affairs, Executive has plenary inherent authority

not subject to Congr’l scrutiny

o even if no plenary foreign affairs authority, Pres had acted in jointresolution w/ Congress fits Jackson’s Youngstown category #1

o does not tread upon state’s rights b/c a foreign (not internal) affair

where states possess no powers at all

• counterpoint : textualist framers did not explicitly enumerate Pres’l plenary

foreign affairs power & does contemplate Congr’l powers in foreign affairs as

check on Pres

o counter-counterpoint : Pres has better opportunity to know facts on the

ground in foreign countries thru his diplomatic agents & confid’l

knowledge they may make available to him

- Dames & Moore (1981)

• facts: Dames’ suit against Iranian gov’t forcibly dropped in Pres’l agreement w/

Iran to terminate claims related to Iranian assets & instead submit binding

arbitration & awards thru series of int’l bank transfers

• holding: Pres has authority to settle U.S. court claims thru executive

agreement b/c rationale is to resolve foreign policy disputes & Congress

implicitly consented

o Const’l for Pres to enact agreemt b/c acting under authorization of Congr’lstatute (IEEP Act)

o under Youngstown category #1, Congress has implicitly consented by

passing statutes accepting emergency Pres’l action here

• SCt’s statutory interpretation infers implied Congr’l consent

based on longstanding history of Congr’l deference to

emergency Pres’l action in foreign affairs

• equally as telling that Congress has also voiced no

resistance

• even if no Congr’l consent, must defer to Executive in context

of foreign affairs emergency based on Curtiss

• counterpoints:

o functionally, this is similar in goals & practice to a treaty & that requires

Senate consent majority ruling provides incentive for Pres to undermine

Const’l req’mt of Separation of Powers



• counter-counterpoint : realistically, this was meant to be a very

narrow opinion providing quick resolution w/ Iran after it had

already released the U.S. hostages

- Medellin v. Texas (2008)• facts: U.S. signed Vienna Convention on Consular Relations & Optional

Protocol Int’l Ct of Justice jurisdiction over Vienna Convention claims must be

consented to by U.S. (not a self-executing treaty b/c requires Congr’l legislation

to make ICJ jurisdiction binding as domestic law)

o Mexican citizen seeks to relief from Int’l Ct of Justice after not being

informed of consular rights before conviction (as required by Vienna)

o Pres Bush issued memorandum ordering state court to review ICJ claims

by s not advised of Vienna Convention rightsπ

• holding: Pres cannot exercise foreign affairs power to issue memorandum

implementing non-self-executing treaty in state cts b/c it is exclusive Congr’l

to legislate to make treaty binding as domestic law

o it is UnConst’l for Pres to coopt Congr’s exclusive power to make non-

self-executing treaty into domestic law (Youngstown majority)

o bolsters Congress role in foreign affairs & constrains Pres by not allowing

him to act here w/o Congr’l action

• counterpoint: Curtiss est’s that inherent Pres’l role to resolve foreign affairs by

allowing U.S. to comply w/ treaties to which it signed

o

counter-counterpoint: unlike Curtiss-Wright , Pres here has no inherentpower to make U.S. law w/o Congr’l action, even though related to

foreign affairs no precedent for Pres’l execution of non-self-executing

treaty that violates Separation of Powers

WAR POWERS

- Hamdi v. Rumsfeld (2004)• facts: U.S. citizen detained on U.S. soil as “enemy combatant” found in

Afghanistan

o father petitioned for writ of habeas corpus & claims doing relief work π π

in Afghanistan

o Special Advisor Mobbs reports confirmed in interview after capture thatπ

traveled to Afghanistan to join Taliban & fought w/ them until captured by



U.S. forces

• holding: Executive use of War Powers to detain U.S. citizens deemed “enemy

combatants” must still accord detainees to challenge under Due Process

o SCt rules that granting of fed ct trial would not threaten nat’l security or

tread upon Pres’s War Powers prerogative, while safeguarding essentialliberty of Due Process to a U.S. citizen

Congress has passed AUMF to authorize Pres to use necessary

& appropriate force against persons assoc’d w/ 9/11 attacks

passes Youngstown Separation of Powers test under category #1

detention of combatants is fundamental incident in waging war &

Congress authorized detention as long as operations ongoing,

however cannot detain U.S. citizen indefinitely w/o according Due

Process rights

unless Congress suspends it, habeas corpus allows Judiciaryimpt check on Pres’s War Powers discretion (judicial review

appropriate even in War context)

• dissent (Scalia):

o without Congr’l suspension of habeas corpus (AUMF did not), Executive

cannot detain citizens w/o charge

o SCt, by ruling how to treat citizens arrested during wartime, has also tread

upon Congr’l power to decide such issues

• dissent (Thomas):

o framers envisioned broad delegation of War Powers, allowing Pres to takewhatever measures necessary to protect nat’l security

- Hamdan v. Rumsfeld (2006)

• facts: Pres Bush signs Executive Order est’ing military tribunals for any non U.S.

citizens reasonably believed by Pres to be related to act of terrorism or to have

harbored terrorists

o Congress had passed UCMJ statute that includes procedure for military

tribunals

•holding: whether or not Pres has independent power, may not disregardCongr’l limitations to exercise of War Powers

o this is not only a Foreign Affairs issue, but a specifically War Powers

issue in which Congress plays explicit role & individual civil liberties at

stake

o Pres has failed to follow procedures of UCMJ fails Youngstown

category #3 by deviating from explicit wishes of Congress



- Boumediene v. Bush (2008)

• Congress passed Detainee Treatment Act (granting exclusive jurisdiction to DC

aCt to review Combatant Status Review Tribunals decisions) & Military

Commissions Act (allowing military to try enemy combatants for war crimes,subject to DC aCt review on matters of law or procedure)

o non-U.S. citizen detainedπ

• holding: DT Act UnConst’l b/c restricted habeas corpus & limited review by

aCt not sufficient substitute Congress does not have power to suspend habeas

corpus here & if does suspend, must supply adequate substitute

o writ of habeas corpus or substitute must allow cts to have means of

correcting errors proceedings

• some authority to assess sufficiency of gov’t evidence against

detainee• admit/consider relevant evidence vindicating not previously∆

intro’d

-hypo: President enables warrant-less wiretapping claiming War Powers & Congress’s

AUMF as justification, but violates another Congr’l act setting procedures for obtaining

search warrants how does this relate to Hamdan?

• Jackson’s Youngstown category #3 issue Pres fails to abide by Congr’l

procedures while acting w/in Congr’ly delegated power

o Hamdan shows Congr’l AUMF act should not be read to expand Pres’l

powers & that Pres may not disregard limitations set by Congress

counterpoint : AUMF is about fighting War on Terrorism &

wiretapping necessary for finding out terrorist plots during

such emergency times

• counter-counterpoint : not like Hamdan because no specific

person in question who was picked up in field of war, no

active battlefield involved makes urgency argument

unpersuasive

counterpoint : sense of urgency manifold where such significant

threats to nat’l security planned over phone lines & even more

urgent than Hamdan b/c risk of flight very pressing by un-

detained actors

counterpoint : terrorism by non-state actors has changed rules

of war to extend theater of war everywhere



DOMESTIC AFFAIRS & SEPARATION OF POWERS

EXECUTIVE PRIVILEGE & IMPEACHMENT

-determining whether to uphold Executive privilege in court proceedings

• compare how compelling each side’s needs are & look at whether claims

specific enough to merit request in face of Exec privilege

• if Congr’l oversight try to figure out whether Congress has legitimate

legislative purpose

• look at whether such power is exclusive to Pres under Constitution

-United States v. Nixon (1974)

• President Nixon’s reelection team members broke into Democratic Nat’l

Committee Hotel at Watergate Hotel

o President claims Executive privilege allows to refuse production of tape

recordings & documents related to his convos w/ aides & advisors

• holding: subpoenas in criminal cases involving Pres override Executive

privilege (does not apply to civil cases or Congr’l committees)

o as long as regulation providing authority of Special Prosecutor stand

& Atty General has not acted to revoke it, there is justiciable

controversy under SCt jurisdiction

counterpoint : SCt cannot steal authority of Congressional

Committee to provide valid process for dealing w/ this issue that is

questionably nonjusticiable political question & intra-branch

dispute

• counter-counterpoint : SCt cannot set precedent allowing

Executive to swallow up other 2 branches by caving intopolitics or assertion of Exec power

o it is SCt’s prerogative & duty to interpret Const w/ respect to Exec

privilege & determination of reach of enumerated Exec power cannot

be shared with Pres

o Separation of Powers nor confidentiality grant Pres immunity from

jud’l review w/o Pres’l claim based on protection of military,



diplomatic, or sensitive nat’l security secrets

-hypo: Whitewater scandal how should SCt balance competing claims?

• prior land deal went sour w/ Clintons back in Arkansas, members of Congress

considering legislation & seeking info about any potential wrongdoing byPresident Clinton

o Pres & attys invoke Exec privilege over any communications by anyone in

White House about Whitewater

• Pres cannot apply Exec privilege here:

o request for prod’n should be granted b/c involves possible misconduct

by Pres

o cannot assert Exec privilege b/c not related to impt nat’l interests (US

v. Nixon)

o time & expenditure of supplying this info would not significantlyimpede Pres in his Exec role not like Youngstown or US v. Nixon

where Pres asked to appear in ct, merely fact finding

• Exec privilege applies:

o Nixon only offers impt nat’l interests as example of reason for

privilege, but does not limit to only this reason

o broadness of such request beyond Clinton’s time as Pres should not be

allowed

o Nixon made it clear that Exec privilege should only be denied in

context of specific type of criminal trial

o disclosure of info disputes b/w Pres & Congress should be decided by

political process b/c it is a nonjusticiable political question

- Nixon v. Fitzgerald (1982) President entitled to absolute immunity from civil suits

for official acts as Pres

• need to avoid inhibiting Pres’l decision-making threat of lawsuit could affect

Exec effectiveness

•

importance of Pres’l duty & unique risks to effective gov’t

-Clinton v. Jones (1997)

• Pres Clinton argues that civil suit involving actions before Presidency should be

delayed until conclusion of Pres’l term

• holding: immunity from civil suits only applies to Pres acting in official

capacity, Exec privilege does not apply to personal behavior occurring before



Presidency

o would not impose unacceptable time & energy burden on his effective

Exec performance

Youngstown & US v. Nixon both involved sitting Presidents subj’d

to jud’l processo minimal danger of politically-motivated harassing & frivolous litigation

b/c likely to be terminated at pleading stage & sanctions available provide

sufficient deterrent

LEGISLATIVE POWER

Non-Delegation (non-) Doctrine & the Legislative Veto

-Non-Delegation doctrine: Congress must provide intelligible guiding principle

whenever it delegates authority

• doctrine itself does not impose any meaningful limits on Congress, but limits in

related doctrinal areas & statutory interpretation promotes predictability &

certainly (significant legal concerns)

• administrative agencies, not Congress, make most of major public policy

decisions today

o increases overlap b/w 3 branches is this consistent w/ original federalist

scheme?

o growth of country & specificity of issues arising led Congress to

delegate decision-making power to specific agencies

o Congress overburdened by its own duties & would have difficulty

coming to conclusions on every specific issue arising

o agencies insulated from politics lack of agencies’ political

accountability allows decisions better approximate what rational

objectives it seeks w/o political pressure & enhances possibilities forbipartisan admin efforts

• arguments against delegating power to admin agencies

o impermissible allow Congressmen to escape making difficult choices

that would subject to political scrutiny for their policy decisions

o bypasses nat’l consensus agency officials are not elected by the



American ppl

counterpoint : there is political accountability b/c admin agency

heads appt’d by Pres & Pres’s view about regulation are made

widely known

•

counter-counterpoint : but some ppl vote for Pres based onfew specific issues & admin agencies are likely overlooked

counterpoint : Congressmen elected, unlike heads of agencies, are

subject to same voting issues as Pres’l election

o insulation from political debate may lead to less public knowledge of

decisions affecting all citizens Congr’l debate issues more widely

know & few citizens read admin reports like the Federal Register

o goes against Const’l structure Congress should maintain that it is

making the policy decisions

•

Non-Delegation is largely moribund doctrine now mostly left to politicalprocess to figure out accountability issues

o only 2 cases struck down based on Non-Delegation during era of

Formalism (~1937)

Schechter little actual supervision by gov’t standards

o though Const’l norms do not cease to exist b/w SCt not regularly

enforcing them

o these vague standards not completely standardless still debated in

principle, subject to norms of Congress

Congress still engages w/ admin agencies after delegating Article Ipower to them

• what would effect of revival of Non-Delegation doctrine (hinted by Rehnquist in

1980s) state admin agencies likely to remain (modern admin state would

collapse w/o them & state supreme cts tend to uphold), less overall regulation of

activities (b/c Congress already moves slowly, even w/o this responsibility)

-Article I provisions are integral to Const’l design of Separation of Powers

• Art. I §1 all legislative powers vested in BOTH Senate & Congress

o “Bicameralism & Presentment”

clause 2 every Bill must pass BOTH Senate & Congress, then

must be presented to President

clause 3 every Order, Resolution, or Vote concurred by both

Senate & House must be presented to & approved by President

(or disapproved by Pres & then passed by 2/3 of Senate & House)



-Clinton v. New York (1998)

• Line Item Veto Act auth’d Pres to “cancel in while” any items of new spending or

any “limited tax benefit” & savings from cancellation would go toward offsetting

deficit spending

o

Congress often lumps individual bills together to keep from beingvetoed making Pres have to veto valuable bills along w/ specific ones

Pres doesn’t like

• holding: Act UnConst’l no Const’l provision authorizes Pres to

enact/amend/repeal Congr’s legislation without approval of both Senate &

House (following bicameralism & Presentment procedures of Art. I §7)

o reflects underlying Non-Delegation values (under guise of enforcing

Bicameralism & Presentment) hands Legislative power to Exec in

violation of Const

counterpoint : should allow Line Item Veto b/c forcesCongressmen to be more transparent on each particular issue &

each particular substantive issue would have to survive on its own

merits

• counter-counterpoint : Pres attempting to more closely

which issues truly require spending should be limited to

budgetary concerns & subject to Congr’l approval

• dissent (Breyer): Pres has not actually “repealed” or “amended” anything,

simply executed power conferred by Congr’l actions in compliance w/

methods set forth in Const

• dissent (Scalia): Act fully complies w/ Presentment & Separation of Powers

cannot strike down based on technicality of wording had Act auth’d Pres to

“decline to spend” (instead of “to cancel”) any item of spending, would be seen as

Const’l

- INS v. Chadha (1983)

• foreigner Chadha ordered by INS to show cause for why stayed after visa expired

o immigration judge ruled could stay b/c met req’mts for permanent

residence statuteo House Resolution (not treated as Art. I legislative act & not submitted to

Senate or Pres) intro’d opposing permanent residency to those like

Chadha ordered deportation

• holding: Congress may not use statute to grant itself a legislative veto over

actions of Exec branch b/c not achieved thru Bicameralism & Presentment



o Congress must abide by its prior delegation of authority to INS agency

(Exec branc) to allow deportable aliens to remain & to Atty General to

decide decisions on deportation Congress cannot revoke this delegation

w/o use of Bicameralism & Presentment

o

only 4 narrow Const’l provisions allow House or Senate to act outsideof Bicameral legislative role:

House’s power to initiate impeachments

Senate’s power to conduct trials following impeachment

Senate’s power over Pres’l appt’mts

Senate’s power to ratify treaties

• formalist viewmust prevent Madisonian concerns over tyranny & here

Congress invades Exec prerogative, delays are no excuse for Congr’l failure to

comply w/ explicit Const’l stds

o counterpoint : why object to such minor delegation when Exec still makesthe major decisions & actually reduces its burdensome minor duties?

• concurrence: offends Separation of Powers b/c House executed a specific

determination affecting 6 individuals not complying w/ statute & this is not

Congress’s role (especially w/o est’d checks that other branches would be subject

to were they to act similarly) legislation affects whole classes of ppl, but here

affects individuals

o Congress not politically accountable to Chadha or the political

process when acting outside of its prescribed role (no internal

constraints prevent it from arbitrarily depriving of rt to remain, rts subject

to “tyranny of shifting majority”)

o not bound by est’d substantive rules (as would Judiciary or admin

agency)

o no procedural safeguards like those present when ct or agency

adjudicates individual rts (right to counsel, hearing before impartial

tribunal)

• dissent : functionalist argument legislative veto mechanism necessary for

allowing Congress to retain role its massive delegation of authority to

agencies

o if Congress was allowed to delegate Art. I power to admin agencies (&

SCt had not struck that down), then must be some mechanism for

checking that delegated power

o not a threat of aggrandizement where Congress is simply checking power

that it would have had anyway had it not delegated to agencies



o power to remove is also power to control

Removal Power is critical to Pres’l ability to control his

administration Exec subordinates subject to whim of Pres

o civil servants & other non-political appointees are protected & not

subject to Appointment Power (must be fired “for just cause”)administrative agencies in the Separation of Powers scheme

anything ending with “Commission” usually an indept agency

- Myers v. United States (1926)

• statute states Postmasters appt’d & removed by Pres w/ advice & consent of

SenateMyers argues Pres’s attempt to remove him before expiration of term as

Oregon Postmaster violated statute & should be awarded back pay for remainder

of unfilled term

•holding: removal under statute UnConst’l b/c Congress attempted limitation onPres’l Removal Power violates Article II President has exclusive power to

remove Exec branch officials & does not require approval from Senate (or

any legislative body)

o examination of Const’l Convention notes showed framers felt it implied

that Pres held exclusive power to remove his staff

o act of removal itself is Exec in nature & must therefore be performed by

Pres

o under “Take Care” Clause, Pres (& no one else) must take care that laws

faithfully executed (Art. II §3 cl. 4)o policy choices should be made by officials answerable to electorate

o reach of this decision only extends to officers performing Exec

functions

• dissent : it is within Congress’s power to abolish postmaster position entirely

& should be able to set terms of position’s occupier this office owes its

existence to Congress & Congress may abolish it

- Humphrey’s Executor (1935)

• statute states that FTC members could be removed by Pres for inefficiency,neglect of duty, or malfeasance in office Pres FDR removed Humphrey saying

that limitation of removal power UnConst’l under Myers

• holding: Pres may not remove any indept agency appointee except for reasons

Congress has provided by law

o formalist reasoning commissioners are quasi-judicial/quasi-



legislative & not executive

FTC admin agency created by Congress to effect legislation in

statute & perform duties as Legislative or Jud’l aid (w/o Exec

control)

counterpoint : seems like artificial distinction b/w cannot becompletely insulated from Exec functions & Appointment Clase

does not make such small distinctions

o Pres may not insist that indept regulatory functions be delegated to

appointee that he can remove at will indept agencies can only be

removed by Pres “for cause” & cannot remove them b/w disagrees w/

their policies

however, Pres can appoint chairman of indept agencies

- Buckley v. Valeo (1976)• Federal Election Campaign Act creates Elections Commission auth’d to

investigate/maintain records/make rules governing fed elections/impose sanctions

on violators of Act or its own regulations 2 members appt’d by Pres pro

tempore of Senate, 2 by Speaker of House, 2 by President

• holding: Act unConst’l b/c Congress may not create commissions that exercise

quintessentially Exec functions

o Appointment Clause states that only Pres may appt officers exercising

significant authority pursuant law of US 4 of 6 here were not appt’d

by Pres Elections Commission was doing significant Exec work

Commission’s discretionary powers to enforce laws seems

dangerously close to Exec responsibility to “take Care that the

Laws be faithfully executed” (Art. II very explicit here)

• very textualist & formalist reasoning

o UnConst’l to vest commission w/ rulemaking power & power to render

advisory opinions or determine eligibility for funds its functions aiding

Congr’l authority to legislate are insufficiently removed from

enforcement of public to allow Commission to perform both functions

counterpoint : Congress already regularly appt’s committees to

inform its legislative process

- Bowsher v. Synar (1986)

• Gramm-Rudman-Hollins Act auth’s Comptroller General to compel Pres to



execute Congress’s laws

o Comptroller prepares report to Pres & Pres required to issue sequestration

order mandating any spending reductions Comptroller specifies, which

becomes final unless Congress legislates other spending reductions to

cancel ito Comptroller nominated by Pres from limited list of 3 ppl recommended by

Congress

can be removed only by impeachment or joint resolution of

Congress (subj to Pres’l veto)

• holding: Act UnConst’l b/c Congress cannot give itself power to remove an

officer performing Exec functions (except thru impeachment)

o violates formalist view of Separation of Powers Comptroller Gen was

legislative officer performing Exec actions

legislative b/c Congress had power to remove him from office aswould any officer of Legislative branch,

his actions Exec in nature b/c performs statutory interpretation of

laws enacted by Congress to make budget calculations,

impermissible for Legislative officer to command Pres to carry out

its directives

o Congress only allowed to remove Exec officers thru impeachment

process may not remove for any perceived transgressions it sees fit, but

Act allowed it Removal Power over Comptroller for “inefficiency,”

“neglect of duty,” or “malfeasance”• dissent : functionalist reasoning Constitution does not address most

Separation of Powers issues in modern gov’t , so innovative gov’t structures

should be allowed so long as no real threat of encroachment or

aggrandizement of 1 branch at expense of another

o this Act does not impose such a threat:

determining level of spending is a Legislative, not executive

function

even if “executive” in nature, this Act was subject to same

constraints as Bicameralism & Presentment b/c Comptroller

can only be influenced by joint resolution of Senate & House

subject to Pres’l veto

-w/ Morrison & after, SCt throws out formalism & creatively analyzes in more

functionalist approach embracing ambiguity of interpretation



• Scalia’s dissents more compelling intellectually

o very coherent, fits textualist analysis, fits w/ framers’ intent

o cannot blur lines of branches so much

• majority opinion more compelling practically

o meant to increase accountability of Exec & ppl did not like idea of limiting level of accountability (esp. after Pres Nixon)

o Scalia’s formalism cannot be squared w/ reality of modern administrative

state so much overlap that would collapse if removed all delegated

legislative power (Congress has given away a lot of legislative power)

Congress now only takes issue if its core functions/fundamental

design undermined

- Morrison v. Olson (1988)

•

Olson investigated by Congress on allegations of perjury by indept prosecutorappt’d by Special Division (special ct of Jud’l branch) & Atty General (Exec

branch) can remove for qualified “good cause”

• holding: Act Const’l b/c Congress may limit certain Pres’l removal power w/

respect to certain Exec functions (must look at whether 1 branch trying to

aggrandize for itself at expense of another)

o SCt finds indept prosecutor to be “inferior officer” (limited

duties/jurisdiction/tenure) can be permissibly appt’d by Congress

& removed by Atty General (Exec branch)

Congress did not aggrandize for itself removal power over officeror impede Exec ability to do so, so no Separation of Powers

violation

• dissent :

o 1700s meaning of “inferior” means subordinate, but indept counsel

not actually subordinate to anyone

o deprives Exec of exclusive enumerated control over criminal

prosecution essence of Exec is interpreting & enforcing law

ex: prosecutors & law enforcement always been in Exec branch

(enforcing US code)

o judges on panel have no political accountability for their decisions in

appt’ing indept counsel (could appt along their partisan lines)

ex: political conservative Special ct chose Ken Starr to investigate

(& almost take down) Pres Clinton



- Mistretta v. United States (1989)

• Sentencing Reform Act est’d US Sentencing Commission w/in jud’l branch

empowered (subject to limitations on types of cases) to promulgate binding

sentencing guidelines for fed judges

•

holding: Act Const’l b/c though Congress cannot generally delegate legislativepower to another branch, Non-Delegation doctrine does not prevent

Congress from obtaining assistance from coordinate branches

o Congress provided “intelligible principle” req’d for delegation of its

power b/c went into enumerated detail on guidelines & limitations for

Sentencing Commission

• dissent :

o UnConst’l delegation of legislative power by Congress to another

agency b/c Sentencing Commissions’s guidges have force of law &

judges disregarding them will be reversedo Commission not properly w/in Jud’l branch b/c not a ct, does not

exercise Jud’l power, & not controlled by/accountable to members of

Jud’l branch

Constitutional Law I Outline

Documents

Transcript of Constitutional Law I Outline