1

Constitutional Law
Young, Fall 2008

Foundations
I.

II.

Functions of Constitutions

Constitute the Government set out general philosophy, set the tone for other
laws, spell out duties of elected officials

Confer rights and duties on individuals

Entrench certain structures, principles, and rights (codifies pre-existing rights)

Differ from ordinary laws b/c less specific; more attention to structure,
protections, and procedures
District of Columbia v. Heller, 128 S. Ct. 2783 (2008) [P27]
A.
U.S. Const., 2nd Amend.: A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not
be infringed.
B.
Contending Positions

Individual Right: The Amendment guarantees an individual right to

keep and bear arms, not only for militia use but also for self-defense
and the possibility of resisting a tyrannical govt (Scalia)

Collective Right: The Amendment guarantees only the right to

participate in a lawfully organized militia (and may shield such
militias, to some extent, from federal interference) (Stevens)
C.
Sources of Constitutional Meaning in Heller

constitutional text, Federalist Papers

history (English common law; changes from Articles of

Confederation; constitutional drafting history; parallel state
provisions; post-ratification interpretation and practice)

judicial precedent

The Relevance of Policy: Dueling experts and studies contend that strict
handgun bans will increase/decrease gun crime and accidents. This
evidence raises several questions, including:

To what extent can policy gains justify incursions on constitutional

rights?

Who decidesthe court or the legislaturehow to weigh conflicting

evidence about policy? (Breyer is most sophisticated with policy
decisions)

The Dead Hand Problem: If adhering to the Second Amendment

requires the Government to forego policies that would save significant
numbers of lives, why do it? Why do the wishes of the (very dead)
Framers trump the wishes of contemporary elected officials, which

III.

presumably reflect not only contemporary political preferences but also

contemporary policy realities?

after all, Britain had a non-entrenched Constitution (til the 1970s)

and Jefferson didnt want to entrench a Constitution
Three Kinds of Constitutional Theories
A.
Theories of obligation explain why we obey the Constitution. Some
possibilities:
1.
Divine right
2.
Consent -- it had authority at the time, but all of those guys were rich,
white men who are all now dead; is there implied, on-going ratification by
those not leaving the country?
3. Convention -- we need stability; it's easier to play by these rules than to
constantly reinvent the wheel; pre-commitment to long-term thinking
with entrenchment, an agreement to see how things work out, know that
it takes time to figure out if a law works or not; lots of entrenched things
aren't in the constitution; effort to achieve self-gov't over time
4.
Morality -- Framers' values are appealing, we like it; but, if we ignore the
parts that aren't appealing (e.g. slavery), then are we following the
Constitution or our own morality
B.
Theories of judicial review explain why judges get to interpret it, as opposed
to other governmental officials:
1.
judicial job description -- "least dangerous branch" according to Hamilton
[P67]; also, courts have to apply the highest law in cases before them, so
have to interpret
2.
institutional capacity (Bickel)
3. representation reinforcement (Ely)
4.
Note -- can have entrenched Constitution without JR, just one less layer of
protection; how effective is JR? (judicial efficacy)
C.
Theories of interpretation tell us how to figure out what the Constitution
means. Some examples:
1.
Textualism -- reliance on the plain meaning of the text
2.
Originalism -- reliance on "original understanding" of text
3. common law development -- reliance on precedent-setting interpretations
of C over time
4.
moral theory -- choosing the most morally satisfactory meaning of C

Marbury and Judicial Review

I.

Judicial Review
A.
The Council of Revision Proposal: The Constitutional Convention
considered and rejected a proposal for a Council of Revision an
institution within the federal legislative or executive branch that would review
laws for their constitutionality.

B.

II.

III.

Review of State Laws: The Court was almost surely understood to have the
power to strike down unconstitutional state laws.
C.
The Convention Debates: Statements at the Constitutional Convention
generally assumed that judicial review would exist.
D.
Federalist 78 (Hamilton) [P67]
No legislative act . . . contrary to the Constitution, can be valid. . . . If it be said
that the legislative body are themselves the constitutional judges of their own
powers, and that the construction they put upon them is conclusive upon the
other departments, it may be answered, that this cannot be the natural
presumption. . . . It is not otherwise to be supposed, that the Constitution
should intend to enable the representatives to substitute their will to that of
their constituents. It is far more rational to suppose, that the courts were
designed to be an intermediate body between the people and the legislature, in
order . . . to keep the latter within the limits assigned to their authority.
Chronology for Marbury v. Madison:
Nov. 1800: Adams and the Federalists lose the elections of 1800. Jefferson and Burr
tie in electoral votes.
Feb. 4, 1801: John Marshall takes office as Chief Justice after being appointed by
Adams. Marshall continues to serve as Secretary of State.
Feb. 13, 1801: Federalist Congress passes the Circuit Courts Act establishing six circuit
courts with 16 new judges, and reduces the Supreme Court from 6 to 5 justices.
Feb. 17, 1801: House of Representatives breaks electoral deadlock in favor of
Jefferson.
Feb. 27, 1801: Federalist Congress passes Act creating 42 new Justices of the Peace in
DC.
March 3, 1801: Senate completes confirmation of the new Justices of the Peace, but
Marshall fails to deliver all the new Justices' commissions.
March 4, 1801: Jefferson takes office and instructs Madison, the new Secretary of
State, not to deliver the commissions.
Dec. 21, 1801: Marbury files suit.
March 8, 1802: The new Republican Congress repeals the Circuit Courts Act and
abolishes the Court's 1802 term.
Feb. 1803: The Court hands down its decision in Marbury. Six days later, it upholds
the repeal of the Circuit Courts Act against constitutional challenge. Stuart v. Laird,
5 U.S. (1 Cranch) 299 (1803).
Laws at Issue in Marbury
U.S. Constitution, Art. III, 2
Clause 1: The Judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the laws of the United States, and Treaties
made, or which shall be made, under their Authority; -- to all Cases affecting
Ambassadors, other public Ministers (interpreted as foreign ministers) and
Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to
Controversies to which the United States shall be a Party; -- to Controversies
between two or more States; -- between a State and Citizens of another State; --

IV.

between Citizens of different States; -- between Citizens of the same State

claiming Lands under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.
Clause 2: In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a Party, the Supreme Court shall
have original Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.
Section 13 of the Judiciary Act of 1789, 1 Stat. 73: The Supreme Court shall
also have appellate jurisdiction from the circuit courts and courts of the several
states, in the cases herein after specially provided for; and shall have power to
issue writs of prohibition to the district courts, when proceeding as courts of
admiralty and maritime jurisdiction, and writs of mandamus, in cases
warranted by the principles and usages of law, to any courts appointed, or
persons holding office, under the authority of the United States.
Is this statute really unconstitutional? Marshall reads it in an unusual way to
create a constitutional conflict to create precedent for JR in cases of
constitutional conflict
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) [P75] -- Question of norms -- do
you try to undo your predecessor's work? Or do you respect it? Those norms weren't
yet established; original jurisdiction in SCT was probably Marbury's only option

Questions in cases are either substantive, judicial, or remedial -- problem in

19th century was, can the Court order senior executives? Can it ignore or strike
down a statute it deems unconstitutional?

Three Questions
1.
Does Marbury have a right to the commission he demands?
2.
If he has a right, and that right has been violated, do the laws of his
country afford him a remedy?
3. If they do afford him a remedy, is it a writ of mandamus issuing from this
court?

Marshalls Arguments for Judicial Review

1.
nature of a written C -- entrenchment, C has to be supreme when in
conflict with statutes
2.
nature of the judicial function -- judge's role in deciding the case in front
of him; "province of judicial department to say what the law is. Those who
apply the rule to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must decide on
the operation of each"
3. arising under jurisdiction
4.
Constitutional restrictions on Congress -- only laws made in pursuance of
the C are valid, Congress can't decide the meaning of a document that
limits its powers
5. Judges oath -- legislators take that oath too
6.
Supremacy Clause

V.

Marshall has to rule that Madison and Jefferson did something illegal, while
making sure he doesn't issue an order that Madison and Jefferson can ignore;
by doing this, he grabs power for the SCT and credibility for JR precedent

Marshall spent a lot of time deciding stuff he didn't have the power to say (b/c
it was outside the scope of the case once he decided the SCT didn't have
jurisdiction), but Jefferson didn't have the power to ignore Marshall's
declarations b/c he used the dicta to say it, he establishes all sorts of power for
the SCT and there's nothing Jefferson can do about it

Implication -- all of the power comes from the courts' power to decide the case
in front of it, the scope of the case is crucial -- has to have someone who was
injured by the statute so the court can decide it, have to have standing
Critiques of Judicial Review [P87]
A.
The Counter-majoritarian Difficulty: Professor Bickel argues that the
presumption in a democracy is that the majority of the people rules, and any
departures from that principle like judicial review have to be specially
justified. This is called the counter-majoritarian difficulty.

Some possible answers:

Hamilton, Federalist 78: Courts exercise judgment, not will

Bickel: Courts have a unique capacity to decide issues of principle.

Important for judicial credibility that they are seen to be doing

something largely apolitically
B.
Diminished Capacity: Does judicial review weaken the capacities of other
actors Presidents, Members of Congress, the People in general to consider
and act on constitutional principle?
C.
Main Problems with JR: should judges be impeachable for bad decisions on
the bench?

Courts aren't in touch with the people

Not accountable to the people (appointed, tenured for life)

Will see them stand in the way of progress (though they also promote it)
D.
Arguments for JR (not Marshall's, from notes)

Separation of Powers forces each branch to be more careful with their

decisions b/c they don't know what will happen once it leaves their hands

Specially trained in law -- "no will, only judgment" -- depends on law

being different from politics (is it?); may be political to get judgeships,
doesn't mean the decisions have to be self-interested

Long View -- lack of accountability enables the role to be different from

legislators b/c they can take a longer view (elitist argument)

C made a system where lots of things get in the way of quick changes,
prevents accumulation of power (for better and for worse)

Courts deal with facts of injuries; legislatures decide on statutes in the

abstract whereas courts deal with their consequences in fact, more
concrete decision about the value of the statute when someone's been
injured by it

E.

Outside Authority -- justices are supposed to point to something outside

of themselves on which they based their decision; not much of a check,
but have to write opinions with justifications
Checks on JR (notes)

Congress has power over the jurisdiction and budgets of lower federal
courts -- they can't hear abortion, flag-burning, terrorism detainee cases;
Congress can make it hard for courts to function with budget control

Rights and Remedies -- Congress has control over what courts can do; can
create immunity doctrines, can amend the C (though only 4 amendments
have overturned SCT decisions), most Constitutional change comes from
JR b/c decisions are easier to overturn than creating amendments

Power of judicial appointment keeps SCT roughly in line with public

opinion (on average there's a new appointment every 22 months);
politicization of appointments safeguards against out-of-touch judges

Jurisdictional Stuff in Marbury

I.

Federal Jurisdiction Basics

A.
The Federal Courts are courts of limited jurisdiction.

State courts are courts of general jurisdiction; can hear any sort of case,
unless either state or federal law specifically forbids it

Federal courts are courts of limited jurisdiction; presumptively they cant

hear a case, unless some specific ground for federal jurisdiction is present

Federal and state court jurisdiction often overlaps, so that the plaintiff can
choose where to file

Two most important grounds of federal jurisdiction are federal question

and diversity of citizenship.
B.
Article III sets a ceiling on federal jurisdiction.

Congress has the power to determine how much jurisdiction the federal
courts will have, up to the maximum limits set forth in Art. III

Federal courts do not have jurisdiction unless (1) a federal statute so

provides, and (2) that statute falls within the bounds of Art. III

Congress has never chosen to implement the full scope of jurisdiction

allowed by Art. III, although by the 20th century most of it had been
authorized by statute.

Federal courts have also claimed authority to narrow their own

jurisdiction by creating prudential rules of justiciability
1.
Can't assert third parties' rights (need concreteness and a party who
was injured to fully assert the rights, to have some strong stake in
the outcome so they litigate well enough)
2.
No generalized grievances, political checks fix that (don't like
taxpayer claims)

3.

II.

III.

Zone of interest standing (are you the type of party this law was
designed to help?)
Ingredients of Constitutional Cases
A.
Scope: The Constitution binds the Governmentnot private parties;
constitutional litigation will always involve some governmental action and the
Government (either local, state, or federal) will generally be a party
B.
Posture: Generally, constitutional cases will arise in one of two ways:
1.
Government acts to enforce a law or policy against a private person, and
the private person defends by arguing that the governments action is
unconstitutional (e.g. Texas prosecutes Gregory Johnson for flag-burning)
2.
A private person initiates litigation to challenge a law or other
governmental action (e.g. Marbury sues to establish his right to a
commission as justice of the peace)
C.
Always Two Laws at Issue
1.
The statute or other governmental action being challenged; and
2.
The constitutional provision that the governments action is said to
infringe.
D.
Facial vs. As-Applied Challenges
Some government actions are always unconstitutional. (e.g., a statute
barring criticism of the government); such statutes are unconstitutional
on their face
Some government actions are OK in some circumstances, but not in
others (e.g. its not unconstitutional to ban trespass on government
property generally, but it is unconstitutional to use such a ban to prevent
anti-government protests); these statutes are unconstitutional only as
applied to certain individual acts that are constitutionally protected
Judicial Order of Operations
A.
Jurisdictional Issues First: A court that lacks jurisdiction cant consider the
merits of a case.
B.
Statutory Grounds before Constitutional Grounds: A court should avoid
deciding a constitutional question if it can resolve the case on statutory
grounds.
C.
Constitutional Avoidance (related principle): If a statute is ambiguous, it
should be interpreted in such a way as to avoid doubts as to its
constitutionality if at all possible.

Justiciability
I.

Introduction [P103]
A.
Advisory Opinions: Federal courts may only rule on legal issues when they
are necessary to the decision of an actual dispute; reasons why:
1.
Branches might look too cozy to be performing checks and balances
properly

2.
3.

II.

III.

Need to limit courts' workloads

Hurts court's credibility if opinion ignored (b/c President not bound by
advisory opinion)
4.
People get used to ignoring courts
5. Basis for JR comes from having to settle a case in front of the court
6.
Harder to make a quality decision in the abstract
B.
Standing: Standing essentially asks whether the lawsuit is being brought by
the right plaintiff; requires an individual injury to create a case; ask, "if not
them, then who can challenge this law?"; factors:
1.
Concreteness -- How concrete and particular to this plaintiff is this injury?
2.
Traceability -- Is it traceable to the law directly?
3. Redressability -- Will a court be able to solve this problem with money or
a court order?
C.
Ripeness: Ripeness asks whether the lawsuit has been brought too soon,
before the dispute has ripened into a real case (part of prohibition on
advisory opinions)
D.
Mootness: Mootness asks whether the suit has been brought too late, after the
dispute between the parties has ceased to exist (part of prohibition on advisory
opinions)
E.
Legal Basis: These doctrines rest on both constitutional and prudential
grounds:
1.
Constitutional: Article III limits the judicial power to "cases and
controversies."
2.
Prudential: Limitations on judicial power that the courts have imposed on
themselves for policy reasons

Note -- prudential rules, unlike the ones that are derived from Art. III, can
be overridden by Congress
Advisory Opinions
A.
Early Practice: Court rejects request from President Washington for legal
advice concerning legal questions arising from U.S. neutrality in the war
between England and France.
B.
State Practice: State courts arent bound by Art. III; many are authorized to
issue advisory opinions.
C.
Implications for the Federal Courts

source of the other justiciability doctrines

source of the general disapproval of judicial dictum

Standing
A.
Constitutional Standing: The core requirement is that the plaintiff must
himself have suffered some threatened or actual injury resulting from the
putatively illegal action. Three requirements:
1. concrete injury: Is the injury too abstract, or otherwise not appropriate,
to be considered judicially cognizable?

IV.

V.

The Court defines cognizable 'injury in fact' as an invasion of a

legally-protected interest which is (a) concrete and particularized,
and (b) 'actual or imminent, not conjectural or hypothetical.'
2.
causation or traceability: Is the line of causation between the illegal
conduct and injury too attenuated?
3. redressability: Is the prospect of obtaining relief from the injury as a
result of a favorable ruling too speculative?
Traceability
Redressability
challenged act -------- Injury -------- judicial order
B. Prudential Standing
1. no third party standing: the "general prohibition on a litigant's raising
another person's legal rights,"
2. no generalized grievances: "the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches,"
and
3.zone of interests: "the requirement that a plaintiff's complaint fall within
the zone of interests protected by the law invoked."
C. Organizational Standing: Organizations can have standing if:
1. its members would otherwise have standing in their own right;
2.the interests it seeks to protect are germane to the organizations purpose;
and
3. neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit; Hunt v. Washington Apple
Advertising Commn, 432 U.S. 333 (1977)
Ripeness: Has the plaintiff sued too soon? Ripeness generally concerns the
availability of pre-enforcement review that is, the right of a plaintiff to challenge a
law or policy before that law has been enforced against him.
A.
The Two-Part Test
1.
Are the issues fit for judicial resolution?
2.
Will the parties suffer hardship if judicial resolution is delayed?
B.
Fitness for Judicial Resolution: Some considerations:
Are the issues purely legal?
Is factual context important to the resolution of the issues?
Is the challenged action, if by an administrative agency, final under the
APA?
Hardship: Some considerations:
Does the challenged government action govern primary conduct?
Are there severe civil or criminal penalties for violations of the challenged
rule?
Mootness: Has the plaintiff sued too late? Or have the issues in controversy gone
away due to events occurring after the plaintiff filed suit?
A.
Reasons a Claim Might Become Moot:

Changes in the underlying legal framework

The challenged government action is of limited duration

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VI.

The opponent provides full relief

B.
The Capable of Repetition Exception: An issue is not moot if it is capable
of repetition, yet evading review. e.g., Roe v. Wade. The plaintiff must show
that:

the challenged action is too short in duration to be fully litigated prior to

its cessation or expiration; and

reasonable expectation that the same complaining party will be subjected

to the same action again.
Warth v. Seldin (1975)[P89] -- three different kinds of plaintiffs:
A.
Low-income and minority individuals -- claim to have been excluded from
living there; trouble establishing traceability and redressability b/c extra link
b/t zoning ordinance and plaintiffs, can't be certain that third parties not
bound by this judgment (e.g. builder) will provide low-income housing if the
court rules for them
B. Rochester Home Builder's Assoc.; organizational standing requires:
1.
Members must have standing individually
2.
Claim must be germane to the purpose of the association
3. Can't require the participation of individual members not bound by the
judgment (have to make it concrete, that someone's trying to build there
and has been denied b/c of this law)
C.
Taxpayers in Rochester -- no direct causation or proof of redressability,
requires the action of third parties not bound by the judgment (state
legislators), very speculative and a general grievance
D.
Brennan's dissent argues SCT is making the access to the courts too narrow,
that this is the type of claim that Fair Housing Codes were instituted to get rid
of; says SCT is using its views about the merits to get rid of the claim before
hearing it

Political Questions -- political outcomes do not make political

questions
I.

Baker v. Carr, 369 U.S. 186 (1962) -- hadn't been willing to intervene in the
legislative branch before this, but b/c the legislature wasn't willing to take away its
own power and no one else could make them, the Court assigned the District Courts
to redraw the lines, aggressive judicial involvement; was controversial b/c a major
intrusion into state gov't brought federalism questions; was the beginning of a more
narrow political questions doctrine
A.
Main argument over which branches of gov't the political question doctrine
was meant to protect
1.
Brennan says it's about separation of powers at the federal level; the Court
only needs to make sure it's doing judicial things and not worry about
what it intrudes into, lays out 3 sets of criteria for deciding if the Court
should take the case: textual, functional, and prudential (see B)

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2.

B.

C.

Frankfurter says federalism and separation of powers b/t state and feds,
protection of state powers; dissent stresses importance on voluntary
submission by Court to protect its credibility and that this decision
threatens the Court's impartiality
3. Final rules were:
a.
One man, one vote -- wasn't controversial b/c seemed fair and
reasonable, go by population
b. Equal Protection was the textual hook on which the Court supported
the new standard
Factors favoring Non-justiciability (from Brennan's majority opinion)
1.
"textually demonstrable constitutional commitment of the issue to a
coordinate political department"
2.
"lack of judicially discoverable and manageable standards for resolving it"
3. "the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion"
4.
"impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government"
5. "unusual need for unquestioning adherence to a political decision already
made"
6.
"potentiality of embarrassment from multifarious pronouncements by
various departments on one question" (i.e. need for judicially-manageable
standards, can courts do this?)
Examples of Non-justiciable Issues (mostly discretionary things that can't
be unconstitutional)
Foreign relations: Often no judicial standards; discretion committed to
executive or legislature; necessary to speak with one voice. But not every
foreign affairs case is non-justiciable
Dates of duration of hostilities: Need for finality; where clear criteria are
available, courts can decide
Validity of enactments: Respect for coequal branches; need for finality
The Baker Criteria: You could divide the six criteria into three categories:
1. The Textual Criterion:
a.
Whether the issue is committed to another branch of government
b. Most important of any criteria (if it's committed textually, they won't
hear it)
2.
Functional Criteria:
a.
Lack of judicially manageable standards
b. necessity of an initial policy determination
c.
go to the institutional capacity of the courts to decide the case
3. Prudential Criteria:
a.
Respect for coequal branches
b. need to adhere to a political decision already made
c.
embarrassment from different branches reaching different
conclusions

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d.

go to the institutional consequences of an adjudication (are least

important of three types)
II.
Strong vs. Weak Theories of Political Question Doctrine
A.
Strong: A strong theory of the political question doctrine would say that even
though there might be a constitutional violation, the Court is powerless to do
anything about it because the question is committed to another branch (i.e.
this might be a violation of the C, but it's not up to the Courts to decide)
B.
Weak: A weak theory would simply use "political question" as a way of
explaining that there is no substantive violation (i.e. the other branch has
broad discretion in a particular area under the C, so can't violate C in this area)
III.
Nixon v. United States, 506 U.S. 224 (1993)
A.
The Court holds that Judge Nixons challenge to the procedures by which the
Senate considered his impeachment is a non-justiciable political question
B. The Court focuses exclusively on two of the Baker factors:
1.
Textual commitment (Senate has "sole" power to try impeachments)
2.
Judicially-manageable standards
C.
Nixon suggests that it is the nature of the constitutional challenge, not the
nature of the constitutional power being exercised, that matters
IV.
Is There A Political Question Doctrine? influential article by Louis Henkin
questions whether there really is a "political question" doctrine at all. See Henkin, Is
There a Political Question Doctrine? 85 Yale L.J. 597 (1976). Henkin says the nonjusticiable cases all fall into one of three categories:
A.
The Constitution commits the act at issue to the discretion of Congress or the
Executive, and that branch's decision is final; no constitutional violation on the
merits because the other branch has acted within its authority; not possible to
violate C if act within discretion (e.g. which country to recognize)
B. The act at issue is reviewable by the Courts, but the Congress or Executive has
broad enough discretion that almost can't violate the C. Again, this is a
decision on the merits
C.
The Court applies traditional limits on the equitable powers of courts. These
limitations give the courts broad discretion to deny injunctive relief where
there is no workable way to fashion a remedy or where there is no pressing
need for equitable relief; not a special exception to judicial review
These three categories represent decisions on the merits and traditional limitations
on judicial behavior, thus Henkin's argument that the Court doesn't really have a
political question doctrine b/c it couldn't find violations of the C in these situations
even if that doctrine didn't exist
V.
What You Need to Know
1.
Federal courts sometimes declare cases non-justiciable on the ground that they
present "political questions"
2.
The six factors listed by Justice Brennan in Baker v. Carr, and the fact that the
two most important are: textual commitment to another branch of government
and lack of manageable judicial standards for deciding the case

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3.
4.

5.

6.

The political question doctrine is primarily a function of separation of powers,

not federalism
The application of the political question doctrine is (a) very rare, and (b) highly
dependent upon the circumstances of the case -- in particular on the
institutional consequences of judicial review
In many -- if not all -- cases, application of the "political question" doctrine will
either be (a) a finding that there is no constitutional violation on the merits, or
(b) an exercise of the court's equitable discretion not to issue an injunction
The political-ness of a question turns on the nature of the plaintiffs claim, not
on the government function thats being exercised; so you cant say
categorically that impeachment cases are never justiciable, etc

Federalism and the Marshall Court -- remember,

Marshall's project is to build a space for the federal gov't as separate from the state
gov'ts, a newly powerful gov't from that of the Articles of Confederation, so Marshall
is highly in favor of federal authority b/c he has to overcompensate to carve out
authority vis-a-vis the states
I.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

A.
Two Issues
1.
Does Congress have power to incorporate a bank?
2.
Can Maryland tax a branch of that bank? ("the power to tax is the power
to destroy")
B.
The 10th Amendment:
1.
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people
2.
Doesn't say "expressly delegated" as Articles of Confederation did,
Framers specifically omitted that word to allow implied powers, that's
what drives Marshall's argument
C.
The Necessary and Proper Clause, Art. I, 8: Congress is given the power to
make all laws which shall be necessary and proper for carrying into execution
the foregoing powers, and all other powers vested by this constitution, in the
government of the United States, or in any department thereof
D.
Marshalls Test: "Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional."
Three key elements:
1. Is the end within the enumerated scope of the Constitution?
2. Is there some minimal degree of fit between the means and the end that
is, is this means appropriate to the end?

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II.

3. Is there no other part of the Constitution that prohibits what Congress is

trying to do?
b/c it's short there are implied powers; says if C had all of the possible
means enumerated it would have the "prolixity of a legal code" and
wouldn't be flexible enough nor understandable enough to legitimately
function in perpetuity, relies partly on the nature of an entrenched C to
justify the implied powers
Maryland can't tax b/c that only benefits MD and hurts everyone else not
represented in MD; is a "representative reinforcement" argument -- court
should step in to protect everyone b/c MD will not change that which
benefits it for the common good
E. A Possible Limiting Principle: [S]hould Congress, under the pretext of
executing its powers, pass laws for the accomplishment of objects not entrusted
to the government; it would become the painful duty of this tribunal, should a
case requiring such a decision come before it, to say that such an act was not
the law of the land
The Commerce Clause
A.
Text: All Art. I, 8 actually says on the subject of commerce is that Congress
shall have power [t]o regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes
B.
History: Madison said that, under the Articles of Confederation, want of a
general power over Commerce led to an exercise of this power separately, by
the States, which not only proved abortive, but engendered rival, conflicting,
and angry regulations

The Commerce Clause is usually viewed as an attempt to promote

two kinds of unity:
1. Economic Unity: The Framers aimed to achieve economic
prosperity by creating a national market free of internal trade
barriers
2.
Political Unity: The Framers also thought that economic
barriers went hand in hand with political barriers, and that
interstate trade wars would lead inevitably to political conflict
that might threaten the Union
C.
Two Models of Federalism

Dual Federalism: The national and state governments each enjoy exclusive
spheres of authority; court must enforce boundary between them

Concurrent Power: The national and state spheres of regulatory authority

largely overlap; courts must resolve conflicts between national and state
legislation dealing with the same subject
D.
Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824): Two issues:

What is the scope of Congresss affirmative power over commerce?

commerce clause regulates commerce among states, but there was
economic interrelationship b/t trade within a state too, all commerce
affects all commerce, but need a limiting principle on federal gov't and

15

III.

constitution drew it there; have to draw the line so there's meaningful

stuff on both sides
1. Marshall acknowledges that the line is pretty broad, but there
are other limits from Congress' overreaching, main check is
election/political unpopularity: Congress wont overreach b/c
that would make their constituents unhappy, one of the
"political safeguards of federalism"

To what extent does Congresss authority supplant state regulatory

authority over the same subject matter? Whenever Congress acts
under the Commerce Clause, they supplant any state regulation on that
matter and possibly in that entire field (see Federalism/Dormant
Commerce Clause)
E.
The Dormant Commerce Clause in the Nineteenth Century -- Congress
has two Commerce powers, which have become more powerful since 19th
century: affirmative power to legislate/regulate and dormant power that
prevents state laws from placing an undue burden on interstate commerce
(based on Congress' ability to regulate the entire field if it so chooses -preemption of state law by federal action)

3 "dual federalism" line-drawing attempts by SCT in 19th century:

1. Commerce vs. Police Regulation: The Marshall Court suggested
that Congresss power over commerce regulation might be exclusive, see
Gibbons v. Ogden, but that the States retained authority to engage in
police regulation, see Willson v. Black Bird Creek Marsh Co. (concurrent
powers)
2.
Local vs. National: The Taney Court holds that federal and state
powers are concurrent with respect to local issues, but federal power is
exclusive over "[w]hatever subjects of this power are in their nature
national, or admit only of one uniform system [may] justly be said to be of
such a nature as to require exclusive legislation by Congress" Cooley v.
Board of Wardens
3. Direct or Indirect: Between the late 19th century and the New Deal, the
Court applied a direct/indirect distinction, much as it did in determining
the scope of Congress's power to regulate intrastate commerce. The Court
struggled to draw a determinate line between direct and indirect
Methodological Issues
A.
Sources of Authority -- judges need to point to something outside of
themselves for justification

Text

Structure
B.
Types of Tests

Means/Ends Fit

Classification

Motive
C.
The Frankfurter Constraint:

16

Successful legal doctrine must be relatively determinate in order to protect

the Court from accusations that extra-legal factors influence its decisions;
need to deliver consistent rulings in cases that appear to be the same.
Avoid the appearance of "judicial policy-making"
Crucial federalism question is whether any formula is sufficiently
determinate to provide a principled basis for judges to restrict the exercise
of national power (Court will try again with Lopez) -- remember, the
justification for JR is that judges are enforcing law, not their own policy
views

Slavery and the Taney Court

I.

II.

Slavery in the Constitution -- conflict b/t law and morality; also federalism and
separation of powers dimensions -- how much should the court review?; to what
extent should Court be obligated by Framers' intent?
A.
The Slave Trade Clause, Art. I, 9, cl.1.
The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the Congress
prior to the Year one thousand eight hundred and eight, but a Tax or duty may
be imposed on such Importation, not exceeding ten dollars for each Person.
B. The Fugitive Slave Clause, Art. IV, 2, cl. 3.
No Person held to Service or Labour in one State, under the Laws thereof,
escaping into another, shall, in Consequence of any Law or Regulation therein,
be discharged from such Service or Labour, but shall be delivered up on Claim
of the Party to whom such Service or Labour may be due.
Was a compromise with slave states to get them to accept Constitution;
trying to prevent escape b/c there's nowhere to go, no "town air makes
free" idea; controlling an externality, preventing one state's law from
making it hard to enforce another state's law
C. The Three-Fifths Clause, Art. I, 2, cl. 3.
Representatives and direct Taxes shall be apportioned among the several
States . . . according to their respective Numbers, which shall be determined by
adding to the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths of all other
Persons.
Gave Southern states advantage in representation b/c they were given
credit for more population even though that population couldn't vote
Prigg v. Pennsylvania, 41 U.S. 539 (1842) -- same test as McCulloch, which is
enumerated here, the ends or the means? Dissent says states should be able to go
further in process requirements, at least make sure the slave-catchers have the right
person, majority doesn't want states to be able to limit federal power by imposing
ridiculous procedure
A.
Three Questions

17

1.

III.

Do feds have exclusive power to regulate fugitive slaves and the process of
their apprehension?
2.
If not, is PAs statute providing procedural safeguards for alleged fugitive
slaves preempted by the federal fugitive slave law?
3. Can PA state officials be required to participate in the enforcement of the
federal statute?
B.
Two Kinds of Threats to State Autonomy
Vertical Aggrandizement: national government seeks to impose its own
will on the state gov'ts
Horizontal Aggrandizement: powerful group of states uses the national
gov't as an instrument to impose its preferences on another group of
states
in Prigg, the Southern states used a horizontal threat to the North to get
their policy enforced; South not just protecting slavery, trying to co-opt
federal government's authority, not using states' rights (despite the
traditional wisdom that the south wanted states' rights to protect slavery);
with Prigg, Northern states wanted to use states' rights against slavery -complicated use of federal authority and states' rights on both sides
Why Story, the abolitionist, read the clause so broadly and strike down the
PA law?
1.
Maybe he thinks it's the correct reading and it's the Framers' intent; said
the country needs to amend the C to get rid of slavery or allow restrictions
by states
2.
Maybe he's more concerned about the Union than about abolition despite
his personal morality -- knows the Southern states won't trust procedures
imposed by anti-slavery states to be fair and a ruling that allowed them
might precipitate secession
3. Wants to read the law, not his own judgment, shows real restraint b/c the
ambiguous clause could have been read the other way with little
justification required
4.
Thought he had struck a victory for abolitionism b/c of anticommandeering, didn't think the feds would be able to enforce the slavecapturing b/c didn't really have federal officials
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
A. The Missouri Compromise: The Missouri Compromise of 1820 barred slavery in
the Louisiana Territory north of 3630, except for the state of Missouri which
was admitted as a slave state -- trying to pacify slave states and abolitionists to
prevent/postpone secession and/or war

Dred Scott says he became free when his master, Dr. Emerson, took him
into the Louisiana Territory north of the dividing line

Had to be a citizen of a state other than NY to bring this case into the
federal courts on diversity jurisdiction
B.
Two Citizenship Clauses

18

IV.

Art. III, 2: The judicial Power shall extend . . . to Controversies . . .

between Citizens of different States

Art. IV, 2: The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States
C.
The Citizenship Holding: We think [black people] . . . are not included, and
were not intended to be included, under the word citizens in the Constitution,
and can therefore claim none of the rights and privileges that that instrument
provides for and secures to citizens of the United States
D.
Historical Evidence -- used original intent of Framers and original
understanding of late 18th century

Evidence of English practices toward blacks pre-dating the Revolution

State legislation forbidding racial intermarriage or the education of

blacks, in both the slaveholding states and more enlightened states like
Massachusetts and Connecticut

Early acts of Congress restricting the right of becoming citizens to aliens

being free white persons

The Declaration of Independence (??!)

Constitutional Text
E.
The Missouri Compromise Holding: The Court also strikes down the
Missouri Compromise (after all, whats a lack of jurisdiction between friends?)

Chief Justice Taney says an act of Congress which deprives a citizen of

the United States of his liberty or property, merely because he came
himself or brought his property into a particular Territory of the United
States, and who had committed no offence against the laws, could hardly
be dignified with the name of due process of law; thought he was helping
the Union, but in fact the Compromises were the only things preventing
civil war; everyone was begging for a judicial resolution

This is an important precursor for the economic substantive due process

holdings of the Lochner era as well as for substantive due process in
Griswold and Roe v. Wade

2 kinds of due process:

1.
Substantive -- some things the gov't just can't do to you
2.
Procedural -- they have to go through certain processes to be able to
do some things
Slavery and Federalism a Dissenting View
"Between the slave power and states' rights there was no necessary connection. The
slave power, when in control, was a centralizing influence, and all the most
considerable encroachments on states' rights were its acts. . . . Whenever a question
arose of extending or protecting slavery, the slaveholders became friends of
centralized power . . .Slavery in fact required centralization in order to maintain and
protect itself . . .Thus, in truth, states' rights were the protection of the free states,
and as a matter of fact, during the domination of the slave power, Massachusetts
appealed to this protecting principle as often and almost as loudly as South
Carolina."

19

V.

Henry Adams, John Randolph (1882)

Overruling Dred Scott
Amendment XIV, 1 (1868): All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside; note that:
Dred Scotts holding that individual states cannot determine qualifications
for citizenship remains good law
The Courts embrace of substantive due process continues through
Lochner and modern privacy cases
Following Dred Scott, the Court focuses more on individual rights and less on
structure

The Reconstruction Amendments

I.

II.

The Bill of Rights and the States

A.
Barron v. Mayor and City Council of Baltimore (1833): Bill of Rights binds
only the Federal Government that is, it does not apply to the States; historical
purpose of Bill of Rights was against an overly powerful national gov't, not
afraid of states in 1791
B.
The Question of Incorporation

To what extent does the 14th Amendment incorporate the Bill of Rights
and apply it to the States? Does it include unenumerated rights that had
been protected vs. federal gov't?

Does the Due Process Clause of the Fifth Amendment incorporate

constitutional rights that apply only to the States (e.g., the Equal
Protection Clause of the 14th Amendment, or the Contract Clause of the
original Constitution) and apply them to the Federal Government?
The Reconstruction Amendments
A.
The Thirteenth Amendment

Section 1: "Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction"

Section 2: "Congress shall have power to enforce this article by

appropriate legislation"
B.
The Fourteenth Amendment

Section 1: "All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws"

20

Section 5: "Congress shall have power to enforce, by appropriate

legislation, the provisions of this article"
C.
The Slaughterhouse Cases (1873)

Privileges and Immunities of State Citizenship

a.
Art. IV, 2 provides that The Citizens of each State shall be entitled
to all Privileges and Immunities of Citizens in the several States.
b. These are held, in Corfield v. Coryell, to include:
1.
protection by the government
2.
the right to acquire and possess property
3. the right to pursue and obtain happiness and safety

Privileges and Immunities of National Citizenship

P&I recognized in Slaughterhouse:
a. the right to come to the seat of government to assert any claim
against the government
b. free access to seaports
c. right of access to the institutions of state government, such as the
state courts
d. protection by the federal government when on the high seas or in a
foreign country
e. the right to peaceably assemble and petition for the redress of
grievances
f. the right to use navigable waters
g. all rights secured under U.S. treaties
h. rights secured by the 13th and 15th amendments, as well as other
articles of the 14th
Not that great, not the rights we traditionally think of as the important
ones we get from citizenship; 2 reasons:
a. argument of breadth vs. depth, that extending the amendment to
cover groups other than former slaves would make it less effective in
protecting former slaves
b. Structural -- if construe it more broadly, Court would give federal
gov't lots of room to interfere in state gov't b/c 14th amendment
gives Congress the right to enforce these P&I against states; every
expansion of individual rights would give Congress more power over
states and make federal gov't all-powerful
3. The Due Process Argument: [A] law which prohibits a large class of
citizens from adopting a lawful employment, or from following a lawful
employment previously adopted, does deprive them of liberty as well as
property, without due process of law; Bradley's dissent; says it's a big deal
to choose your profession, it's a basic economic right, Court should pay
more attention to means/ends fit here, is the monopoly necessary or
helpful for the improvement of health in the city?
D. The Civil Rights Cases (1883)
Two issues:

21

a. Can Congress enforce the 14th Amendment against private actors?

SCT says no, only limits gov't
b. The 13th Amendment does apply to private actors, but is
discrimination in public accommodations sufficiently connected to
slavery?
1. argue from 13th amendment, say it's inferior treatment and it's
the "badges and incidents" of slavery, part of social system of
discrimination, argue that the 13th amendment should address
that too, not just the chattel part; majority says there's a
fundamental difference b/t slavery and discrimination (part of
that breadth vs. depth argument)
2. would have been a radical expansion of Congressional power to
expand 13th amendment to include all discrimination on the
basis of race; doesn't seem to be a middle ground b/t full
expansion and narrow reading; it's partly Congress' fault for not
legislating vs. Jim Crow and enforcing 15th amendment
(political rights of former slaves); Congress didn't have enough
nerve
c. Civil war changes Constitutional structure:
1. Ended question of secession
2. Created nationalism in the North, consciousness of US as
nation
3. Builds federal capacity and power (had money and power to
fight war, kept it afterwards)

The Lochner Era and Freedom of Contract

I.

Overview -- Three sets of challenges to government authority to regulate the

economy:
A.
Economic Substantive Due Process: Court recognizes fundamental rights
under the due process clause such as freedom of contract that inhibit
economic regulation
B.
Commerce Clause: Court resists federal economic regulation by restrictively
construing Congresss power under the Commerce Clause
C.
Nondelegation: The Court resists the establishment of the federal
administrative state by enforcing limits on Congresss ability to delegate
authority to administrative agencies (will deal with this in federalism)
Between the 1890s and 1937, the Court strikes down a wide variety of state and
federal regulatory statutes. Then, perhaps in response to FDRs court-packing
plan, the Court retreats.
Court strikes down some regulations and upholds others, seems arbitrary; using
judicial activism to strike down the regulatory state

22

II.

Due Process and Freedom of Contract

A.
Substantive Due Process pre-Lochner
1. Early 19th Century

Calder v. Bull (1790): reference to natural law as first principle of law,

an independent check on gov't

Fletcher v. Peck (1810)

Dred Scott

Some cases in the state courts likewise use due process as a ground
for invalidating regulations that threaten property or contract rights.
2.
Late 19th Century

Munn v. Illinois (1876): state legislatures can regulate grain storage

facilities even if it burdens interstate commerce, though regulation
can go too far

Minnesota Rate Cases (1913): state can't fix intrastate rates of an

interstate carrier to reduce their profits unreasonably

Allgeyer v. Louisiana (1897): first recognized the freedom of parties to

contract without state interference (see below)
B.
Freedom of Contract: The liberty mentioned in [the 14th] amendment means
not only the right of the citizen to be free from the mere physical restraint of
his person...[but] the right of the citizen to be free in the enjoyment of all his
faculties; to be free to use them in all lawful ways; to live and work where he
will; to earn his livelihood by any lawful calling; to pursue any livelihood or
avocation, and for that purpose to enter into all contracts which may be proper,
necessary and essential to his carrying out the purposes above mentioned
Allgeyer v. Louisiana
C.
Lochner v. New York (1905) [P261]
Court holds that a New York statute limiting bakery workers to sixty
hours per week, or ten hours per day, unconstitutionally interferes with
the freedom of contract b/t bakery workers and their employers
Court distinguishes b/t bakers and miners, saying the state can regulate
especially dangerous industries
Means/ends test: police power cited, but limiting hours isn't related
enough to health of workers and doesn't affect public health according to
Court (bread not healthier or less healthy based on hours worked)
Not interested in equalizing bargaining power b/t laborer and employer,
not a legitimate end for regulation
Holmes dissent: A constitution is not intended to embody a particular
economic theory...It is made for people of fundamentally differing
views...I think that the word liberty in the Fourteenth Amendment is
perverted when it is held to prevent the natural outcome of a dominant
opinion, unless it can be said that a rational and fair man necessarily
would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people
and our law

23

E.

Where Did the Court Go Wrong? Some possibilities:

th
Liberty under the 14 Amendment doesnt include liberty of
contract
Even if liberty includes liberty of contract, Due Process Clause
guarantees only fair procedures
Even if there is substantive protection for liberty of contract, the
Court blew the means/ends analysis by applying too rigorous a
standard
Court inappropriately held that the labor law justification was an
illegitimate end
Harlan's dissent says should defer to legislature on close calls
Meyer v. Nebraska, Pierce v. Society of Sisters decided in 1920s; precursors
for rights of self-determination and privacy in education of children,
based on same theories as freedom of contract [P292]
Skinner v. Oklahoma (1942): seemingly recognizes bodily integrity as
fundamental right; arbitrary sterilization of some recidivist criminals and
not others struck down under Equal Protection b/c line b/t embezzlement
and armed robbery not reasonably related to end of preventing future
crime (Buck v. Bell, 1927, upheld forced sterilization)
The Lochner Heyday
1. Kinds of Laws Struck Down

maximum hours

yellow-dog contract restrictions (required agreement to not join

union as part of job offer)

minimum wages (Adkins v. Children's Hospital -- women's minimum

wage struck down)

price regulation

business entry restrictions

2.
Inconsistent Results: Court upheld as many statutes as it struck down
during this period,
The Public Interest Doctrine: In cases like Nebbia v. New York (filled milk
case), the Court upholds economic regulation against freedom of contract
challenges on the ground that the relevant industry is affected with a public
interest. The problem, of course, is to trace the boundaries of this category
[P280]

The Commerce Clause in the Lochner Era

I.

Overview
A.
Dual Federalism and Concurrent Jurisdiction -- changing ideas of spheres
of authority
1.
Dual Federalism seeks to divide the world into two separate spheres of
regulatory jurisdiction, with state and federal authority exclusive within

24

II.

III.

their respective spheres (e.g. Federal government has exclusive authority

over foreign affairs; the States have exclusive authority over family law)
2.
Concurrent Jurisdiction recognizes both state and federal authority to
regulate most subjects. The question then is how to identify and resolve
conflicts between federal and state activity (e.g. both the States and the
Federal government may regulate most commercial activity, but federal
law prevails under the Supremacy Clause in the event of a conflict)
B.
Formalism and Realism -- 2 ways of thinking about the doctrines for Court
1. Formalism: The Court examines the statute and the regulated activity to
determine whether certain objective criteria are met. Actual economic
effects or legislative motive are unimportant.
2.
Realism: The Court focuses on actual economic impact of the regulation
or the actual motivation of Congress.
C.
Two Sets of Cases
1. Economic Regulation cases: Congress is trying to regulate somewhat more
broadly than strictly commercial transactions involving more than one
state; using unenumerated means for Commerce Clause as enumerated
end (E.C. Knight, Shreveport Rate Cases)
2.
Social Regulation cases: Congress is trying to achieve certain social or
moral ends through banning interstate transportation of certain people or
goods; using Commerce Clause as means for unenumerated ends
(Champion v. Ames; Hammer v. Dagenhart)
The Economic Regulation Cases
A.
The E.C. Knight Line (1895) [P293]: Two important limits on the commerce
power:
1.
commerce is narrowly defined to exclude manufacturing, agriculture,
etc.
2.
the effect of an activity on interstate commerce must be direct, not
indirect

Also demonstrates the doctrine of "constitutional avoidance", construing

the statute narrowly to prevent a constitutional conflict

Test is somewhat amorphous b/c it's a characterization/definitional test,

not means/ends fit
B.
The Shreveport Rate Case Line: Congress can regulate where interstate and
intrastate commerce are so intertwined that one cant regulate the former
without regulating the latter; also Congress can usually regulate the
instrumentalities of interstate commerce even on an intrastate scale
C.
The Stream of Commerce Line: Congress can regulate intrastate activities
that are part of the current of commerce between different states (Stafford v.
Wallace)
The Social Regulation Cases
A.
The Early Cases: Congress may use its enumerated power to ban interstate
shipment, regardless whether its motive is to regulate immoral activity,
Champion v. Ames (ban on interstate shipment of lottery tickets)

25

B.

IV.

Hammer v. Dagenhart (1918): child labor case; Court holds that Congress
may not ban interstate shipment when the regulation of interstate commerce
is simply a pretext to make life difficult for a business it cant regulate directly,
and where the goods shipped interstate are not themselves harmful; had to
distinguish from Champion b/c the goods themselves were no different
The Challenge to the New Deal
A.
The Justices -- note that some of these cases are not 5-4. (e.g. Schechter)
1.
The Conservative Four Horsemen: Sutherland, McReynolds, Butler, and
Van Devanter
2.
The Liberals: Chief Justice Charles Evans Hughes and Justices Cardozo,
Stone, and Brandeis
3. The Swing Vote: Owen Roberts
B.
A.L.A. Schechter Poultry Corp. v. United States (1935): Court strikes down
the National Industrial Recovery Act, which allowed boards of private
businesses to develop "codes of fair competition," which were then approved by
the President.
codes were held unconstitutional as applied to wages and hours in the
chicken slaughterhouses of NYC, based on their indirect effect on
interstate commerce; outside limits of Commerce power
Cardozo, J., concurring: "[There] is a view of causation that would
obliterate the distinction between what is national and what is local in the
activities of commerce. Motion at the outer rim is communicated
perceptibly, though minutely, to recording instruments at the center. A
society such as ours 'is an elastic medium which transmits all tremors
throughout its territory: the only question is of their size.'...The law is not
indifferent to considerations of degree...To find immediacy or directness
here is to find it almost everywhere."
Carter v. Carter Coal Co. (1936): Court strikes down the Bituminous
Coal Conservation Act of 1935, which permitted local coal boards to set
minimum prices and administer collective bargaining agreements that
would bind all mine operators in the area. The Court again relies on an
indirect effect rationale.
The Social Security Act was poised to be struck down next and that was
the centerpiece of the New Deal; Court was striking down all Due
Process and Commerce Clause expansions as beyond the power of
Congress

26

The New Deal Crisis and the Revolution of

1937
I.

II.

The Court-Packing Plan followed FDR's landslide reelection and a huge

democratic majority in Congress; claimed public mandate for New Deal and FDR
was determined to get it past the economically-conservative SCT

The Proposal: Add one additional justice for each justice over seventy years old,
up to a total of 15 justices; was supposedly to help the older justices keep up
with their workload; by the time of the Fireside Chat, President accused SCT of
standing in the way of recovery, of being out of touch with reality, needed new
blood on SCT; FDR uses dissents saying these rulings were not mandated by
the Constitution, says Court is being political

Alternatives Proposed in Congress: Amend the Constitution to allow Congress

to overrule Supreme Court decisions by supermajority vote

The Switch in Time: While the plan is under consideration in the Senate,
Justice Owen Roberts defects from the conservative majority and votes to
uphold major new deal legislation in West Coast Hotel v. Parrish and NLRB v.
Jones & Laughlin

Aftermath: The Four Horsemen (Sutherland, McReynolds, Butler, & Van

Devanter) retire shortly thereafter, producing solid pro-New Deal majorities in
Wickard and Darby
The Court backs down -- evidence that vote on West Coast Hotel was before courtpacking plan revealed; these decisions are more realist and less formalist than the
Lochner path, more concerned with the actual effects on the economy than on
formal distinctions
A.
Federalism NLRB v. Jones & Laughlin Steel Corp. (1937) [P334]:
1.
Court upholds protection of labor organization; cites the "intimate
relation" b/t manufacturing and interstate commerce; abandons that
distinction, effectively overruling E.C. Knight
2.
abandons direct/indirect distinction in favor of substantial effects test
and notes massive national economic impact from Jones & Laughlin alone
3. create national/local distinction rather than interstate/intrastate
distinction
4.
"the power to regulate commerce is the power to enact 'all appropriate
legislation' for 'its protection and advancement'; to adopt measures 'to
promote its growth and insure its safety'; to 'foster, protect, control and
restrain'. That power is plenary and may be exerted to protect interstate
commerce 'no matter what the source of the dangers which threaten it'"
(Jones & Laughlin, majority opinion [P339])
B.
Due Process West Coast Hotel Co. v. Parrish (1937)[P326]:
1.
Court overrules Adkins v. Childrens Hospital and upholds a minimum
wage

27

2.

III.

uses dissents from Lochner, says regulating the economy is a legitimate

gov't function
3. questions the very idea of freedom of contract

Note: this is not a complete turnaround, merely choosing Nebbia over

Lochner; in some areas, the tide shifted before 1937
C.
Contracts Clause Home Bldg. & Loan Assn v. Blaisdell (1934): Court
applies deferential review to state law changing rights of mortgage holders to
foreclose

From 1937 to 1995, SCT doesn't overrule a singe statute as beyond

Congress' Commerce power
The Elastic Commerce Clause
A. Wickard v. Filburn (1942)[P344] was a unanimous decision b/c Four
Horsemen already retired
1.
Substitutes aggregation principle consider economic effect of whole
regulated class of activity ("taken together with many others similarly
situated, is far from trivial"), not individual instance for "substantial
economic effect" of act
a.
substantial enlargement of commerce power
b. Test says, is it commercial/economic activity?, if so, aggregate it
and defer to Congress
2.
"marketing quotas not only embrace all that my be sold without penalty
but also what may be consumed on the premises...penalties do not
depend upon whether any part of the wheat is sold or intended to be sold"
3. Court relies on the non-Lochner track of cases that expanded Commerce
power (e.g. Shreveport Rate Cases)
4.
"questions of federal power cannot be decided simply by finding the
activity in question to be 'production' nor can consideration of its
economic effects be foreclosed by calling them 'indirect'" [P348]
B.
United States v. Darby, (1941): Two aspects of the statute:
1.
prohibits interstate shipment of goods made by workers not complying
with wage & hour requirements
2.
imposes wage & hour requirements directly on workers engaged in
making goods for interstate commerce
3. Interstate Shipment: Court overrules Hammer v. Dagenhart; returns to
Champion v. Ames
4.
Wage & Hour Regulation: Two alternative grounds:
a.
regulate wage & hours as necessary & proper means to facilitate
interstate shipment ban; and
b. wage & hours themselves have substantial effect on interstate
commerce
C.
Further Developments
1. Maryland v. Wirtz (1968): Congress amended the Fair Labor Standards
Act to directly regulate wages and hours for every employee "of an
enterprise engaged in commerce;" Court upheld under Wickard

28

2.

3.

4.

Perez v. United States (1971): Court upholds federal criminal statute

prohibiting loan-sharking; Court emphasizes findings that this class of
activity in the aggregate has effects on interstate commerce
Hodel v. Virginia Surface Mining Ass'n (1981): Court upholds federal
regulation of strip mines; question is whether Congress could rationally
have found an effect on commerce
The 1964 Civil Rights Act Cases: In Heart of Atlanta Motel v. United
States (1964) and Katzenbach v. McClung (1964), the Court upholds
Congresss Commerce Clause authority to ban private race discrimination
in public accommodations (e.g. hotels and BBQ joints); Court rejects
pretext arguments that the purpose is to achieve social justice, not
regulate the national economy

Rationality Review and the Double Standard

I.

II.

Types of Scrutiny [P379]

A.
Rational Basis: the law will be upheld if it is rationally related to a legitimate
state interest; or, is the
legislature crazy to pass this? If not, defer to it (e.g. Lee Optical)
B. Intermediate: the law will be upheld if it is closely related to an important
state interest (e.g. gender
discrimination; undue burden in Planned Parenthood v. Casey)
C. Strict Scrutiny: the law will be upheld only if it is narrowly-tailored to a
compelling state interest; or, is
there a less restrictive alternative to this law? If so, strike it down (e.g. laws
constraining free speech)
Rationality Review
A.
A Typical Statement: On rational-basis review, a classification in a
statute...comes to us bearing a strong presumption of validity and those
attacking the rationality of the legislative classification have the burden "to
negative every conceivable basis which might support it." Moreover, because
we never require a legislature to articulate its reasons for enacting a statute, it
is entirely irrelevant for constitutional purposes whether the conceived reason
for the challenged distinction actually motivated the legislature. Thus, the
absence of "legislative facts" explaining the distinction "on the record," has no
significance in rational-basis analysis...a legislative choice is not subject to
courtroom fact-finding and may be based on rational speculation unsupported
by evidence or empirical data. "Only by faithful adherence to this guiding
principle of judicial review of legislation is it possible to preserve to the
legislative branch its rightful independence and its ability to function." FCC v.
Beach Communications, Inc. (1993)
B.
Characteristics (see, e.g., Williamson v. Lee Optical (1955)[P357])
1. Presumption in Favor of Legislative Fact-finding

29

III.

2. Hypothetical Rationales and Facts acceptable as justification

3. No Scrutiny at All?
See, e.g., Ferguson v. Skrupa, 372 U.S. 726 (1963): the Court says it has
abandoned the use of the vague contours of the Due Process Clause to
nullify laws which a majority of the Court believed to be economically
unwise"
In Lee Optical, the Court invented potential reasons why a statute in favor
of a lobbying group might be within the police power of the state; ignored
economic substantive Due Process
"the day is gone when this Court used the Due Process Clause of the 14th
Amendment to strike down state laws, regulatory of business and
industrial conditions, because they might be unwise, improvident, or out
of harmony with a particular school of thought" [P358]
Economic substantive due process standard is now "plausibly related" to
public interest, lower than rational basis
The Double Standard (from Ernie's "Federalism and the Double Standard"
[P373]) footnote four's general deference to legislative pronouncements; rational
basis as a test the gov't usually can't fail
A.
What We Dont Enforce Anymore (at least pre-1995):
1.
economic substantive due process
2.
other economic rights (Contracts Clause, much of Takings Clause)
3. limits on federal power
4.
limits on legislative delegation
B.
What We Do Enforce:
1.
racial and gender equality
2.
personal right to privacy
3. free speech
4.
anti-establishment of religion
5. separation of powers
6.
limits on state power (Dormant Commerce Clause)
C.
Three Central Questions about Court's Double Standard
1.
Has the Court overreacted?
2.
What rights are in and what rights are out?
3. If we can define this double standard, can we also justify it?
D.
The Carolene Products Footnote [P355]
There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a
specific prohibition of the ConstitutionIt is unnecessary to consider now
whether legislation which restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation, is
to be subjected to more exacting judicial scrutiny...than are most other
types of legislation...Nor need we enquire...whether prejudice against
discrete and insular minorities may be a special condition, which tends
seriously to curtail the operation of those political processes ordinarily to

30

be relied upon to protect minorities, and which may call for a

correspondingly more searching judicial inquiry
closest we have to general criteria about what's fundamental under due
process and what classifications are suspect under equal protection
Start here as criteria to decide if something should be fundamental; with
Due Process, it's tradition (Griswold), then Roe build on that as right on
control over reproductive life
three categories where judicial review should be more strict:
1. specific constitutional prohibitions, particularly those in the Bill of
Rights
2. restrictions on the political process itself such as limits on free
speech or the right to vote
3. prejudice against discrete and insular minorities
Professor Ely and Representation Reinforcement:
1.
Based on Footnote 4, Ely argues that the Constitution is basically
procedural in character, and that Courts should not interpret it to
mandate particular value choices.
2.
Called the "antitrust theory" of constitutional law, JR should be used here
to break up political monopolies (structural impediments to the group's
success); judicial intervention into the political process is appropriate
when the market is malfunctioning and undeserving of trust [P372]
1.
when government action restricts or undermines the operation of
the ordinary political process (e.g. restrictions on political speech)
2.
when particular groups are excluded from ordinary opportunities to
form coalitions and be heard in the political process on account of
entrenched prejudice or some other inherent disadvantage (e.g.
racial discrimination)
3. Judicial intervention is necessary to ensure that the interests of those with
political power are tied to the interests of those without power [P366]
4.
Judges should focus on policing the mechanisms by which the system
seeks to ensure that our elected representatives will actually represent
Young's article says the Court's decisions often fail to adhere to the divide that
Ely's theory suggests; not a simple division b/t economic and "other"
regulation; not a distinction b/t structure and individual rights, three ways to
think about it (notes):
1. What are Courts good at thinking about? What types of problems are
they good at analyzing?
2. Who else would protect the rights if not the Courts? (political safeguards
work? Discrete and insular minority being singled out?)
3. Which rights are more appealing? Economic rights are pretty
fundamental to our lives; should the Courts be deciding which to enforce
and which not to? Asserting the power not to enforce something is an
assertion of judicial activism

31

Plessy to Brown I
I.

II.

Three Big-Picture Issues in the School Desegregation Cases [P382]

A.
Principle: Are there neutral principles that justify a court putting an end to
racial segregation? (Wechsler)
B.
Efficacy: Can judicial review make a difference concerning such a pervasive
social problem? (Rosenberg)
C.
Interpretive Supremacy: Which governmental actors interpretation controls
in case of conflict? (Cooper)
The Pre-Brown Law
A. Plessy v. Ferguson (1896)[P383]
1.
Court upholds separate but equal rule in public accommodations; uses
means/ends test, say it's legitimate b/c of "public welfare" and within the
police power of states
2.
Narrow reading of 13th and 14th amendments: they're to enforce equality
before the law, but not to enforce social equality or force comingling
3. Say segregation does not necessarily imply inferiority
4.
Formalist decision, allow a lot of discretion to state legislatures
Two prophetic observations:
1. "What can more certainly arouse race hate...than state enactments
which...proceed on the ground that colored citizens are so inferior and
degraded that they cannot be allowed to sit in public coaches occupied by
white citizens?" Harlan's dissent -- focused more on realities and intent of
amendments
2. "[The defendant's argument] assumes that social prejudices may be
overcome by legislation, and that equal rights cannot be secured to the
negro except by an enforced commingling of the two races. We cannot
accept this propositionIf one race be inferior to the other socially, the
Constitution of the United States cannot put them upon the same plane."
(Brown, J., for the Court)
B. Two Central Questions
1. What is the harm of segregation? Is it simply that the State is treating
people differently on account of their race, or that it generates damaging
results for black people? Does it inherently stigmatize? To what extent
does society expect people to pull themselves up by their own bootstraps?
2.What is the institutional capacity of courts to effect massive social change?
Pay attention to whether the Court can simply order segregation to end,
or whether it must depend on a shift in the political winds before its
orders have any real effect on fundamental social interactions
C. Browns Precursors: The Big 12 Tetralogy [P392]
1. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938): Court strikes down
Missouris law school system, which required segregated education for
whites and blacks; all-white University of Missouri provided a law school,

32

III.

while the black university, Lincoln University, did not; Missouri law
provided for sending black residents to law schools in neighboring states
and paying their tuition there; SCT rules that the State must provide equal
facilities within the state
2. Sipuel v. Board of Regents, 332 U.S. 631 (1948): relying on Gaines, SCT
orders the University of Oklahoma law school to admit a black student
who had been excluded solely on the basis of race
3.Sweatt v. Painter, 339 U.S. 629 (1950): Court requires the UT law school to
admit a black student, because the black law school was not in fact equal;
Court takes into account intangible factors like reputation and
networking -- begins raising questions about what constitutes equality in
education
argued by Thurgood Marshall and NAACP; started with legal
education as the foundation of social and legal equality
4. McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950): Court
strikes down program segregating a black student within the white school
(grad school of education); he was forced to sit in a special seat, prohibited
from dining with other students in the cafeteria, and had to sit at a special
table in the library; Court held that these restrictions "[impaired] and
[inhibited] his ability to study, to engage in discussion and exchange views
with other students, and, in general, to learn his profession" -- social
exchange benefits of the school experience -- after this, separate but equal
can't work
Also argued by Marshall and NAACP
Brown v. Board of Education of Topeka (Brown I) (1954)
1. NAACP starts with schools b/c it's the hardest place to maintain equality
and will do the most good for clients
2. SCT looks to the effects of segregation on public education; "must be
available to all on equal terms" [P396]; "separate educational facilities are
inherently unequalsuch segregation is a denial of the equal protection of
the laws"
3. Hard to rely on intent of framers of amendment b/c of the changing
importance of public education from the 1860s to the 1950s; have some
psychological findings that help support the opinion
A. Whats the Rationale? Some possibilities:
1.
Education is too important to permit segregation, maybe it's special
2.
Segregated education hurts the educational development of black
children
3. Segregation violates freedom of association (but, what about forcing
association on whites?)
4.
Segregation stigmatizes black people, "generates a feeling of
inferioritythe impact is greater when it has the sanction of the law"; after
all, 14th amendment was intended to get the blacks out of the bad

33

B.

C.

D.

social/political position they were in, maybe it doesn't have to be neutral

b/c of that intent
Brown and Neutral Principles:
1.
Neutrality doesn't mean the C can't take sides, it means the judge has to
reason from something other than his own morality, no matter which side
he wants to win
2.
What makes judging different from politics is that:
a.
it must be genuinely principled, resting with respect to every step
that is involved in reaching judgment on analysis and reasons quite
transcending the immediate result. Wechsler [P401]
b. Cannot function as a "naked power organ", but must be courts of law
c.
Must reach judgment on analysis and reasons that transcend the
immediate result
3. Note -- Charles Black wrote more realistic concerns for basis of Brown
decision [P407}
What Does Brown Mean? At least two possibilities:
1.
State-enforced segregation is illegal (only invalidate that law)
2.
Educational equality can be achieved only if blacks and whites go to
school together (harder, seems to be what the Court intends)
Brown's Federal Cousin -- Bolling v. Sharpe (1954): Court uses the 5th
Amendments Due Process Clause to extend Brown to federal segregation in the
District of Columbia
1.
Note that this is an instance of reverse incorporation of the 14th
Amendments Equal Protection Clause to bind the federal government
(bind in the same way as states)
2.
problem of anachronism and textual repetition; 14th amendment doesn't
apply to federal gov't, but only to states; had to make it apply to feds or
would have angered states

Brown II & Cooper: The Efficacy and Authority

of Judicial Review
I.

Brown v. Board of Education of Topeka (Brown II), 349 U.S. 294 (1955)
A. The Holding on Remedy

Remedies are to be guided by equitable principles

Equity courts tended to be more flexible, tailor solutions to

individual school districts to achieve fairness in each individual
situation

Equity courts also specialized in "prospective" relief, relief for the

future by requiring people to do things, declaring rights and issuing
injunctions (not after-the-fact like money damages)

34

II.

The Court will tolerate some delay b/c of administrative difficulty and
individual circumstances

JR being used as a sword rather than a shield to prosecution; using rights

to attack gov't practice

District courts become managers of school districts; how far should they
take it? Some discrimination was/is from residential patterns
B.
The Results of Courts Acting Alone: Between 1956 and 1964, the results of
judicial orders varies by region:

Border States: The number of black children in school with whites rose
15.2% throughout the border, and 28.1% if we exclude D.C. (which was less
segregated to start with).

Deep South: Ten years after Brown, only 1.2% are attending school with
whites. Leaving out Texas and Tennessee, the figure drops to less than
0.5%.
C.
Criticisms of Brown II: Some possibilities:
1. If segregation is unconstitutional, then any continued segregation is
intolerable
2. Brown II encouraged white resistance by failing to demand an immediate
remedy
Southern Manifesto says SCT got it wrong, resist decision
3. Brown II overstated the administrative difficulties of desegregation
4. The Court should never have referred the task to the lower courts
The Authoritativeness of Supreme Court Decisions
A. Cooper v. Aaron (1958): unanimous decision
1.
Court rejects the Governor of Arkansass claim that he is not bound by the
Courts prior ruling in Brown; Court says that the interpretation of the
Fourteenth Amendment enunciated by this Court in the Brown case is the
supreme law of the land, and [the Supremacy Clause] of the Constitution
makes it of binding effect on the States
2.
Court says order should not be maintained by denying black children
their constitutional rights
3. Court relies on Marbury to say the Courts say what the law is and that
their decisions are binding on the States and state actors; they must
exercise their authority within the bounds of the C
B.
Two Questions:
1.
Does the effect of the Courts judgment in a constitutional case extend
beyond the parties to the litigation?
2.
To what extent can other actors in the other branches of government
implement their own interpretations of the Constitution when they
disagree with the Court?
C.
Three Positions
Judicial Supremacy: The judiciarys interpretation of the constitution
becomes obligatory and conclusive upon all the departments of the
federal government and upon the whole people, so far as their rights and

35

III.

duties are derived from, or affected by that constitution. Joseph Story,

Commentaries on the Constitution of the United States (does that mean
even judges can't overrule precedents?)
Legislative Supremacy: Congress has the last word on the constitutionality
of its enactments (fox in charge of henhouse, not so great a check)
Departmentalism: Each department of the Government has the authority
to construe the Constitution for itself in the course of performing its
constitutionally-appointed functions (but the Court usually has the last
word)

Presidents have other ways of challenging the SCT's "last word"; e.g.
Jefferson pardoned violators of the Sedition Act, Roosevelt
threatened court-packing and kept encouraging economic
regulation; Jackson vetoed the Nat'l Bank; Lincoln opposed Dred
Scott with political pressure
The Efficacy of Supreme Court Decisions (Rosenberg)
A.
Congressional and Executive Action

Brown didn't get enforced until Congress and the President acted as well

Does that mean Courts are ineffective? Or was the SCT decision necessary
to allow the other branches to act with less fear of political consequences?

Rosa Parks claimed a footing in the Constitution b/c of Brown

1964 Civil Rights Act

bans private discrimination in employment and public

accommodations

permits DOJ to bring desegregation suits against school districts

conditions federal financial assistance on recipients agreement not

to discriminate based on race

1965 Elementary and Secondary Education Act

provides huge pot of money to school districts with low income

children

Dept. of Health, Education, and Welfare regulations cut off federal

funds to school districts that arent desegregating
3. Results of Political Branch Action

In the border states, the decrease in segregation is far greater than

under the courts acting alone

In the South, we have 91.3 percent desegregation by 1972 (only 1.2

percent before Civil Rights Act)
B.
Judicial Action the Hollow Hope?
Some possible views on judicial efficacy:
1. Dynamic Court: Courts play an important and effective role in effecting
social change; maybe not so great in a society bent on the popular will and
political accountability?
2. Constrained Court: Judiciary is the least dangerous branch; courts can
do little more than point out how actions have fallen short of

36

constitutional or legislative requirements and hope that appropriate

action is taken
A closer examination reveals that before Congress and the executive
branch acted, courts had virtually no direct effect on ending
discrimination in the key fields of education, voting, transportation,
accommodations and public places, and housing...Only when
Congress and the executive branch acted in tandem with the courts
did change occur in these fields (Rosenberg)
3. Catalyst Court: Courts help trigger (or maybe force) actions by the
political branches that bring about important social change
Court is easier to move than Congress or President; only have to
convince 5 people; can do unpopular things b/c they don't have to
worry about being reelected
Court has to explain why they do things in their published decisions,
so they have to decide based on principle (whereas congress just says
yes or no), their philosophical arguments must be taken more
seriously
Court is also important for the movement as a defensive tool; they
can protect the right to protest, strike down convictions of
protesters; courts expanded the 1st amendment to protect the civil
rights movement
other movements that try to use the SCT need one of the other two
branches to do something as well; Brown itself didn't end segregation, but
it did give the political branches motivation and justification to end it; an
elected official can use it as a defense ("I'm just following the Constitution
and enforcing the SCT's decision"), it took positive action by the President
to enforce desegregation before it changed

Incorporation and the Nationalization of

Criminal Procedure
I.

Approaches to Incorporation: Barron v. Baltimore said the Bill of Rights doesn't

apply to the states and Slaughterhouse Cases said privileges and immunities don't
include the Bill of Rights, have to use substantive due process; kind of a stretch,
maybe better to just go back and overrule one of the precedents, but they don't

Warren Court effected a revolution in civil rights, but perhaps even more
important was their revolution in criminal procedure by extending the Bill of
Rights to apply to states and their prosecutions; after all, there are a lot more
criminal prosecutions done at the state level than at the federal level

Which Rights?
1. Fundamental Fairness (Frankfurter): Due Process incorporates only
those rights which are fundamental in a free society (Palko v. Connecticut

37

(1937) incorporated only those rights that are of the very essence of a
scheme of ordered liberty or essential to a fair and enlightened system of
justice)

Due process requires fundamental fairness; the test is, can you
imagine a fair system without this right? Even if it's unusual for our
system, can the system be fair without this? By Duncan, it's can you
imagine our system without this right? That's a different question
[P465]

Frankfurter says "neither necessary nor sufficient" for something to

be in the Bill of Rights, wants the rights as applied to the states to be
examined and applied in the best manner possible; allows a lot more
judicial input
2.
Total Incorporation (Black): The Due Process Clause incorporates the
Bill of Rights - no more, no less; functionalist argument; says any other
way is too hard, no guiding principles, too many opinions

Problems with both: Black's is a bright-line rule, often over- and underinclusive; Frankfurter's is a balancing test, requires a lot of judicial
discretion, more unpredictable, have to order people of different opinions
to comply, nothing principled to point to

Selective Incorporation (Brennan; White in Duncan): Warren Court

used the language of fundamental fairness to incorporate almost all of the
Bill of Rights
Whats not incorporated? Mostly irrelevant or unimportant for
criminal prosecutions
the 2nd amendment, kind of a federalism amendment anyway, trying
to prevent federal intrusion into state militia authority (til the 14th
amendment and Heller say it's an individual right)
the 3rd amendment (quartering)
the 5th amendment's requirement of grand jury indictment
the 7th amendment's guarantee of a jury trial in civil cases
B. In What Manner?
1. Only the Core: Only the core meaning of a constitutional provision binds
the states; doctrinal wrinkles and remedial rules do not (Wolf v. Colorado
(1949), states bound by Fourth Amendment, but not by exclusionary rule
remedy)
Adamson v. California (1947)[P453] rejected the argument that the
due process clause of the 14th amendment incorporated the 5th
amendment protection against self-incrimination to the states in the
same way as it applied to federal courts (overruled by Griffin, see
below)
2. Jot for Jot: Doctrine developed under a particular Bill of Rights
provision applies to the States precisely as it does to the Federal
Government (Mapp v. Ohio (1961), overruling Wolf)

38

II.

III.

IV.

Reverse Incorporation: a limited set of rights that apply, in the text, only to the
states have been incorporated into the Due Process Clause of the Fifth
Amendment so as to bind the national government as well. Examples:

Equal Protection: Bolling v. Sharpe held Equal Protection clause of 14th

amendment incorporated through the due process clause of the fifth
amendment (problems of anachronism, repetition)

Contracts Clause (states cant make laws inhibiting the enforcement of

contracts; rights provision of C incorporated vs. federal govt)
Anomalies of Incorporation
A.
The Bill of Rights as Federalism Provisions: Some of the guarantees of the
Bill of Rights were pretty clearly intended to protect state autonomy from
federal interference. E.g., the Establishment Clause was probably intended to
prevent State establishment of religion. Its somewhat strange to apply these
sorts of restrictions to eliminate the autonomy that they were originally
intended to protect. See Elk Grove Sch. Dist. v. Newdow, 542 U.S. 1 (2003)
(Thomas, J., concurring in the judgment)
B.
Federal Legislative Discretion: Fourteenth Amendment was pretty clearly
intended to give Congress broad powers to promote racial equality; but the
reverse, jot-for-jot incorporation of the Equal Protection Clause into the Fifth
Amendment means that Congress has no greater leeway than the States to
undertake benign discrimination affirmative action in service of racial
equality (Adarand Constructors v. Pena (1995))
The Criminal Procedure Revolution
A. Mapp v. Ohio (1961): The Court holds that the States are bound not only by
the Fourth Amendment itself, but by the exclusionary rule barring admission
of evidence obtained by an unconstitutional search
Remedial Choice: Excluding evidence is not the only way to remedy Fourth
Amendment violations Alternatives:
Private suits for damages
Police department disciplinary proceedings
B. Miranda v. Arizona, 384 U.S. 436 (1966): The Court holds that the States are
bound not only by the Fifth Amendments prohibition on self-incrimination,
but also by specific warnings that must be given to each criminal suspect prior
to questioning.
Prophylactic Rules: The Constitution does not require police to say the
magic words prescribed by the Court; rather, the Miranda warnings are a
judge-made rule designed to prevent unconstitutional violations of the
voluntariness requirement
C. Other Milestones
Gideon v. Wainwright (1963): Court holds that the Sixth Amendment
requires states to provide counsel in all felony criminal cases
Griffin v. California (1965): Court overrules Adamson and strikes down state
rules allowing comment on the defendants failure to testify

39

Duncan v. Louisiana (1968)[P463]: Court holds right to jury trial in criminal

cases fundamental to the American scheme of justice and within Due
Process requirement (exception for petty offenses)
Furman v. Georgia (1972): Court holds that the procedures used to
administer the death penalty in most states are unconstitutional

The Right to Privacy

I.

II.

III.

Substantive Due Process vs. Equal Protection (remember these are claims
brought against LAWS, not people)

Substantive Due Process is can the gov't do this to me? Does gov't have this
power? Under the Constitution, there are some things the gov't isn't allowed to
do; ask, is there a legitimate end to this? Is the means well-tailored to the end?
Are there less restrictive alternatives? (either the means or the end has to be an
enumerated power)

Due process often used to protect traditional rights and relationships

Equal Protection is why does the gov't treat me different than him? Is there a
good reason for treating these two classes of people differently? If classes are
similarly situated but treated differently, there's probably an equal protection
argument to be made; ask, what distinguishes between classes under the law?
Is the distinction rationally related to the end?

Equal Protection often used to protect weird practices/ideas from legal

pressure to conform
Three Precursors: Meyer and Pierce are decided on Lochner's substantive due
process protections, based on common law principles from England
A. Meyer v. Nebraska (1923): Court strikes down a state law forbidding the
teaching of German to young children; liberty includes not merely freedom
from bodily restraint but also the right of the individual to contract, to engage
in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to
the dictates of his own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness by
free men.
B.
Pierce v. Society of Sisters (1925): Court strikes down a law mandating that
children attend public schools on similar grounds
C.
Skinner v. Oklahoma (1942): Court uses equal protection to protect a
fundamental interest in procreation and bodily integrity, striking down a
mandatory sterilization law for persons convicted of a third felony involving
moral turpitude (arbitrary application against armed robbers and not
embezzlers; ignored ugly precedent from Buck v. Bell in 1920s)
Four Theories of "Privacy" in Griswold [P511] decided with means/ends test,
Court holds the law is not narrowly-tailored enough, are less restrictive alternatives - indicates it was not rational basis scrutiny, probably intermediate scrutiny; focus is

40

IV.

on use in the marital bedroom, but will become a broader theory of privacy to
protect the decision about reproduction with Eisenstadt and Roe
In Griswold, privacy not unconstrained b/c focus is on marital bedroom, inside the
home, inside a marriage, two places with traditionally protected expectations of
privacy; lots of emphasis on tradition with Due Process
A. The "Penumbra" Theory (Douglas): The right to privacy is found in the
"penumbras" of the First, Third, Fourth, and Fifth Amendments; "penumbras"
represent the freedoms necessary to make the enumerated rights viable; the
amendments create "zones of privacy" (used Mapp v. Ohio privacy stuff)
B. The Ninth Amendment Theory (Goldberg): The right to privacy is protected
by the Ninth Amendment, providing that "[t]he enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people" -- VERY broad, could justify lots of other rights,
need limits
C. The Substantive Due Process Theory (Harlan & White): Privacy is a
"fundamental" traditional liberty incorporated into the Due Process Clause of
the Fourteenth Amendment
Functional concern with Goldberg and Harlan & White's concurrences -- too
many rights and no gov't ability to constrain is not good either, harder to limit
rights under these two theories; Harlan relies on courts' discretion
The "Enumerated Rights and That's It" Theory (Black): "I like my privacy as
well as the next one," but the Constitution simply doesn't protect
unenumerated rights; Stewart's dissent says we got rid of this substantive due
process stuff with Lochner
Eisenstadt v. Baird (1972)[P552]: Court recasts the right from Griswold
Fundamental right to decide whether or not to have kids
Use Equal Protection clause to extend Griswold rights to unmarried people;
used Due Process and Equal Protection together, to protect a traditional right
(due process) and extend it to everyone (equal protection) -- very powerful
combination, includes argument for gay marriage
To make equal protection argument, have to prove there are two groups
similarly situated before you can see if it passes scrutiny
Eisenstadt decision struck down on means/ends fit -- maybe a legitimate end,
but can't prescribe an unwanted pregnancy as legitimate punishment for
extramarital sex; disproportionate and creates problems for others
with a rational basis review, Court probably would have upheld the statute, so
there's some heightened scrutiny here
Carey v. Population Service International (1977)[P558]: allowed people other
than pharmacists to distribute contraception
Views of the Warren Court

Force outliers in line with national consensus -- majoritarian role, not

normal for a court

Footnote Four

Geography (Southerners and Catholics; rural vs. urban)

41

V.

Reform by Experts (criminal justice)

Privacy, Originalism and Neutral Principles
A.
The Question of Neutrality: Are the theories proposed in Griswold neutral
in Wechslers sense? In Borks?

Bork builds on Wechsler's neutral principles argument by adding neutral

derivation and applicability; "if the court is free to choose any principle
that it will subsequently apply neutrally, it is free to legislate just as a
political body would": wants the rules to be broader, to apply to future
cases; need something for the judge to point to outside of himself; he
heavily favors original understanding as a methodology

It may help to consider the neutrality of the following two ways of

formulating the principle:
1.
The government may not interfere with acts done in private
2.
The government may not prohibit the use of contraceptives by
married couples
B.
Originalism and Theories of Obligation

Consent/Authority: The Constitution binds because the People agreed to

it at a particular point in time, and it should therefore be interpreted in
the terms that the People understood themselves to be agreeing to; in this
sense, the Constitution should be interpreted just as any other law that
is, according to the understanding of those who enacted it

Convention: We (the living) are more likely to agree on the original

understanding of the text as an interpretive principle than on any rival
theory, because (a) that is how were used to understanding the meaning
of texts, and (b) the originalist method is more neutral than the
alternatives (Scalia's book)
C.
Critiques of Originalism

Cant Do It
incomplete documentary record of the Founding
judges arent good historians
impossible to determine intent of collective bodies
Shouldnt Do It
the dead hand of the past is, well, dead
one generation no matter how brilliant cant have all the answers
originalism is biased to conservative outcomes (?)

Abortion and Unenumerated Rights

I.

Overview
A.
Three Questions in Roe
1.
Where does the abortion right come from?
2.
What countervailing interests does the State have in regulating abortion?
3. What's with this trimester framework?

42

B.

II.

III.

Two More Questions in Casey

1.
Does the joint opinion do a better job of explaining the basis for the
abortion right?
2.
If Roe was wrong as an initial matter, what role should stare decisis play in
deciding whether to overrule it?
Roe v. Wade, 410 U.S. 113 (1973)[P559]
A.
Possible Justifications for the Abortion Right
1.
Tradition: lots of historical evidence to say abortion has been legal for
large stretches of history Precedent: Griswold and Eisenstadt; if you
accept Eisenstadt, Roe follows
2.
Personal Autonomy
3. Bodily Integrity
4.
Equal Protection
5. Representation Reinforcement
B. Basically saying there are decisions where I should be left alone and the state
can't tell me what to do; same reasoning as in Lochner (double standard
difference b/t economic rights and non-economic rights, Court more motivated
to protect non-economic ones; Rehnquist's dissent points out, this should be
rational basis review like in Lochner and economic substantive due process)

Can't argue equal protection b/c men and women aren't similarly situated,
stuck with due process

The States Interests -- court said these aren't important enough or welltailored enough to take away the fundamental right to decide about
procreation
1.
discourage illicit sex (not so great, see Eisenstadt's reasons)
2.
protect women from hazardous procedures (want regulation to make the
procedures safer)
3. protect prenatal life (not compelling enough early on b/c the unborn
aren't people in the eyes of the Constitution; state interest becomes
compelling once the fetus can live outside the womb)

The Trimester Framework -- practical application of increasing state's

interest vs. woman's interest (balancing change over time as state's interest
becomes more compelling); legal and moral judgments required and mixed;
state's interests in abortion depends on a moral judgment about whether or not
the fetus is a person
1.
First Trimester: No regulation, period
2.
Second Trimester: May regulate abortion procedures in ways that are
reasonably related to maternal health
3. Third Trimester: State may regulate or forbid abortion except when
necessary to preserve the life or health of the mother (state's interest is
now compelling)
The Unwritten Constitution
A.
Early Antecedents

Calder v. Bull, 3 U.S. (2 DaIl.) 384 (1798)

43

Justice Chase (majority opinion): I cannot subscribe to the

omnipotence of a state legislature...although its authority should not be
expressly retrained by the constitution, or fundamental law of the
StateThere are certain vital principles in our free republican
governments, which will determine and overrule our apparent and
flagrant abuse of legislative power...
Justice Iredell (concurring opinion): It is true, that some speculative
jurists have held, that a legislative act against natural justice must, in
itself, be void; but I cannot think, that under such a government, any
court of justice would possess a power to declare it so...[T]he ideas of
natural justice are regulated by no fixed standard; the ablest and the
purest men have differed upon the subject: and all that the court could
properly say, in such an event, would be, that the legislature, possessed of
an equal right of opinion, has passed an act which in the opinion of the
judges was inconsistent with the abstract principles of natural justice. Id
at 398-99 (concurring opinion).
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) (Marshall, CJ): The Court
struck down a GA statute that sought to void a prior land deal selling state
lands to speculators. The Court relied on the Contract Clause, but in the
alternative on general principles which are common to our free
institutionsin particular, the principle of the inviolability of vested
rights.
B. Other Well-Settled Instances
Incorporation of the Bill of Rights against the States through the Due
Process Clause of the 14th Amendment
Incorporation of the Equal Protection Clause against the U.S. through the
Due Process Clause of the 5th Amendment
Broad interpretations of the First Amendments speech clause and the
Equal Protection Clause
C. Professor Grays Three Categories of Non-Interpretive Review [P575]
creating (or finding) independent constitutional rights with almost no
textual guidance
giving general application to norms that the constitutional text explicitly
applies in a more limited way
extension or broadening of principles stated in the Constitution beyond the
normative content intended for them by the framers

Abortion and Stare Decisis

I.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)[P586]

A.
The Pennsylvania Statute

44

a woman seeking an abortion must give informed consent to the

procedure, 24 hours after being provided with information about other
options

minors may not obtain an abortion without informed consent of a parent

(judicial bypass option available)

a married woman seeking an abortion must certify that she has notified
her husband

the preceding three requirements may be avoided only in the event of a

"medical emergency"

facilities providing abortion services must report certain information to

public authorities
B.
The Votes and Opinions

The Joint Opinion (signed by O'Connor, Kennedy, & Souter): Reaffirms

Roe's "essential holding," but upholds all the provisions of the PA law
except for the spousal notification provision; upholds things that would
not have stood up under Roe's strict scrutiny, create "undue burden"
standard

Blackmun and Stevens: Concur in the portions of the joint opinion

reaffirming Roe, and concur in the judgment as to striking down the
spousal notification provision; dissent as to the other provisions

Rehnquist, White, Scalia, & Thomas: Concur in the judgment upholding

all but the spousal notification provision; dissent as to spousal
notification; and don't join any of the joint opinion's reasoning
C.
Reaffirming Roe? The joint opinion reaffirms the "essential holding" of Roe:

A recognition of the right of the woman to choose to have an abortion and

to obtain it without undue interference from the State

A confirmation of the State's power to restrict abortions after fetal

viability, if the law contains exceptions for pregnancies which endanger a
woman's life or health

The principle that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus
that may become a child
But the joint opinion junks:
The trimester framework
The "strict scrutiny" analysis of abortion regulation; allows a lot more
regulation; could be bad, but also could be good b/c we want to make sure
the procedure's safe and done by professionals only, so maybe strict
scrutiny isn't so great for this
Problem is there's other regulation that seems to be discouraging the
choice; have to look at legislative motives with these
Trying to get at a common law decision?
D. The Stare Decisis Analysis: The joint opinion's stare decisis inquiry involves
four basic questions:
1. Whether Roe's rule has proven "unworkable";

45

II.

2.Whether people have significantly relied upon it;

3. Whether the law in the intervening years has evolved in such a way as to
erode Roe's doctrinal underpinnings (change in fact?)
4. Whether time has overtaken Roe's factual assumptions (change in law?)
But there's also a fifth factor in this case:
5. The impact of overruling a decision "resolving" a social controversy on the
Court's legitimacy; to what extent should decisions change with a change
in personnel? Is it just b/c it's controversial? Lack of clear evidence from
the first four factors that it should be overruled, so leave it alone (esp. b/c
it's controversial)
Trying to make it a special criteria for overruling big precedents -compare to Plessy and Lochner -- lack of workability, big changes in facts
(laissez-faire not so great, separate but equal not work); there's no
comparative changes since Roe
Trying to show that the law doesn't change just b/c the personnel
changes, despite political protest, despite the confirmation process that's
trying to overturn Roe, trying to maintain a distinction b/t law and
politics, trying to maintain their judgment independent of the politics of
their appointments
Casey is probably the best example in the course of the justices being
bound by the law despite their personal preferences -- would look really
bad if they overturned Roe from a Republican court and then reinstated it
under a Democratic court
E. Alternative Rationales: Justices Blackmun and Stevens each offer an
alternative theory for Roe:
1. equal protection
2. establishment of religion
Stare Decisis and Constitutional Interpretation
A. Common vs. Civil Law

Civil Law: In Continental legal systems, strongly influenced by the Roman

law, statutes dominate and there is no formal doctrine of stare decisis.
Each case interprets the binding statutory text for itself, with only
secondary reference to what other courts have done in like cases.

Common Law: The Anglo-American legal tradition relies, across broad

areas of the law such as contracts, torts, or property, case-by-case
development through judicial lawmaking. Precedent is the source of the
law in these areas, although courts retain authority to overrule prior
decisions when necessary.
In practice, these approaches tend to converge to at least some
extent.
B. The Constitutional Case Against Precedent (Prof. Lawson): If a current
judges best interpretation of the Constitution itself (based on whatever
interpretive theory she holds, be it originalism, Dworkinian moral reasoning, or
something else) is that it means X, by what authority can the judge instead

46

follow a prior judges view that the Constitution means Y? Isnt the prior view
unconstitutional?
C. Judges as Partners: Dean Sager says that judges are partners with the
Framers in forging constitutional meaning, and that judges should shape that
meaning in accord with their own views of justice
D. Common Law Constitutionalism: The doctrine of stare decisis holds that
sometimes a court must accept a prior construction of the law (including of the
Constitution), even though the current court thinks that interpretation is
wrong. This is done largely for reasons of stability
The common law as a theory of constitutional interpretation, on the other
hand, holds that we adhere to prior decisions not simply for stability reasons,
but because precedent is one of the most important tools by which we
determine what the Constitution means in the first place
Maybe precedent is an admission that you don't have any better insight into
the Constitution than the former court -- precedent becomes your window into
the Const., rather than upholding the wrong precedent vs. the Const. (like
allowing the priests to tell you what the Bible might mean), aka when in doubt,
stick with the precedent b/c the old judges were as smart as you are; problem
with that? Gives a lot of power to courts, allows a lot of non-official
Constitutional amendments, but are diffusing that power over a lot of
generations of judges, is more incremental in the changes; maybe C is not
flexible enough if you don't use precedent to make it evolve, maybe you'd have
to change it more or just scrap it entirely

Introduction to Federalism
I.

II.

Three Basic Questions

1.
What functions does the Constitution allocate to the Federal Government, and
what functions does it reserve to the States?
2.
What institutioni.e., Congress and the President, or the Judiciaryis best
suited for enforcing whatever limits on federal power exist?
3. Where the federal government has power to act, should it nonetheless leave
the issue to the States as a matter of policy?
The Political Theory of the Federalist
A.
The Anti-federalist Critique of the Constitution

The proposed national government is too big, too far from the people, and
too likely to be dominated by selfish interests

Republican government that is, democratic government by a group of

virtuous citizens making decisions together for the common good can
only flourish in small communities

47

B.

C.

Federalist 10: Faction is best controlled in a government of large size: (1) it

makes it hard for a faction to become a majority and take over; and (2) it tends
to ensure that the better sort of people will achieve prominence.

Extend the sphere and you take in a greater variety of parties and
interest; you make it less probable that a majority of the whole will have a
common motive to invade the rights of other citizens; or if such a
common motive exists, it will be more difficult for all who feel it to
discover their own strength and act in unison with each other.

Focus on tyranny of the majority; Size does matter b/c there are so many
minorities that there may not even be a majority faction outside of the
coalitions of minorities; why coalition better? Can only agree on things
that are good for general public; the more people you have to persuade,
the more reasonable you have to be (according to Madison); also thinks
the representatives will be well-qualified men, the best of the area, have to
be a bigger fish to get elected in a bigger pond; debatable whether there's
a connection b/t more prominent and more able representation
Federalist 51: Specific institutional checks (separation of powers and
federalism) prevent the accumulation of too much power in any one place,
pitting the ambitions and selfish interests of politicians one against another in
order to maintain the overall balance of power.

In the compound republic of America, the power surrendered by the

people is first divided between two distinct governments, and then the
portion allotted to each subdivided among distinct and separate
departments. Hence a double security arises to the rights of the people.
The different governments will control each other, at the same time that
each will be controlled by itself

institutional checks and balances to build into the structure to safeguard

liberty in the system; Hobbesian outlook on human nature, have to figure
out how to contain ambition and turn it into a tool for protecting liberty;
divide power and fill it with selfish, ambitious people that will want to
check each others' power

Double security created b/c power divided b/t branches but also divided
b/t state and national gov'ts; clearly it's hard to get anything done in this
system; built-in conservative bias (small gov't) b/c they're not worried
about gov't not being able to get things done, more worried about gov't
not being able to do too much bad stuff -- maybe sometimes now we want
rapid response (since the New Deal ideas of gov't), now we can see
problems with a gov't that's too weak as well as one that's too strong
(what Madison was most concerned with)

Creating roadblocks to force people to talk to each other, lots of 20th C

law is trying to find ways around these roadblocks, some of which the
court tolerates and some not

Madison seems to think that if you get the structure right, then the rights
will follow (Federalists were talked out of the extreme version of this

48

III.

position when they added the Bill of Rights); remember the age of
individual rights and liberties and human rights is 20th century, so not a
key here; also clear that judicial review is a 2nd or 3rd option, the better
ones are Congress checking President, States checking Feds, etc, JR is on
the sidelines
D.
Two Concluding Thoughts

Its hard to get much done in this system

Constitutional rights and judicial review are not explicitly mentioned

U.S. Term Limits, Inc. v. Thornton (1995)[P684]

Effort to understand what the relationship is b/t federal gov't and state
representation; also all are originalists b/c there is a lot of historical
information

Not a strict term limit; name cannot appear on ballot; could in theory still be
written-in (probably trying to keep it from being challenged, question of
election law); challenged by a group of citizens, says unconstitutional; what's
the text? Use 10th Amendment and Qualification Clauses together as exclusive
list of qualifications that can be required

Not a whole lot of evidence on what the Framers thought about term limits, so
have to go with a default rule, but majority and dissent argue for different
default rules from 10th amendment -- dissent says, when in doubt, the states
have power from 10th amendment; majority says any powers the states didn't
have in 1791, it can't be given in the 10th amendment -- difference is in meaning
of reserve in amendment, dissent's argument seems more convincing

Democratic principles can help -1.

freedom of choice probably a better argument b/c lots of people like their
representative, why shouldn't you be able to choose that guy again? Well,
problem is, Arkansas has chosen to limit their choices with term limits,
was a popular referendum and you're telling them they can't have that
choice in the name of freedom of choice -- kind of weird too
2.
Egalitarianism -- Stevens thinks term limits cut against these principles,
thing is, who are we protecting if say term limits are anti-egalitarian?
People who are already Senators and Representatives, weird argument,
maybe more egalitarian to spread the office around (several of the framers
thought rotation was a good idea)
3. right to choose rep's belongs to people not states; Arkansas can't choose
rep's, only people can.what does it mean to be chosen by the people
instead of the state? What does it mean to be a national senator?
According to Stevens, you're acting as a citizen of the US, not as a citizen
of the state, you're acting in a different capacity and they're your direct
representative not acting on behalf of the state, but on the behalf of a lot
of individuals; and rep's are supposed to take a national perspective, not
just vote on behalf of people of state (that's more about how you behave
once you're in office)

Two Issues

49

1.

can States add to or alter the qualifications for federal legislative office
enumerated in constitution?
2.
if not, is Amendment 73 is still valid as a ballot access restriction rather
than as an outright disqualification for office?

The Qualifications Clauses

Art. I, 2, cl. 2: No Person shall be a Representative who shall not have
attained to the Age of twenty five Years, and been seven Years a Citizen of
the United States, and who shall not, when elected, be an Inhabitant of that
State in which he shall be chosen
Art. I, 3, cl. 3: No Person shall be a Senator who shall not have attained to
the Age of thirty Years, and been nine Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State for which he
shall be chosen
So in both cases, the Constitution imposes three requirements: (1) age; (2)
citizenship; (3) residence.
See also Art. I, 5: Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members...
C. The 10th Amendments Reserved Powers
U.S. Const. Amend. X: The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people
Joseph Story, Commentaries on the Constitution of the United States 627
(3d ed. 1858): [T]he states can exercise no powers whatsoever, which
exclusively spring out of the existence of the national government, which
the constitution does not delegate to them...No state can say, that it has
reserved, what it never possessed
D. Democratic Principles
1. Egalitarianism: Anybody ought to be able to run for Congress
2. Freedom of Choice: The people ought to be able to vote for whomever
they choose
3.Popular (Dual) Sovereignty: the right to choose representatives belongs
not to the States, but to the people; Two key alternatives here:
The Union is a coming together of state political communities;
Congress is a meeting place of ambassadors from the States
The Union creates a national political community for some purposes,
while maintaining state political communities for others. Federal
representatives have their own direct relationship to their
constituents; states are not a party to that relation
Justice Kennedy's concurrence probably the best explanation of the
third point; talks about the shift from Articles of Confederation v.
Constitution; under Articles, they were ambassadors for state, tools
of state legislatures, meeting of ambassadors from states, nothing
could get done without asking state legislature to implement the

50

IV.

decisions of congress, had to ask state legislature for money, etc; no

link from Congress to population; didn't work very well
See drawing for explanation; dissent says the state gov't is between
the people and the federal gov't, majority says people have a dual
capacity, can vote as a national citizen and a state citizen, and
national gov't doesn't have to go through the states to regulate the
people
The Values of Federalism
A.
Reasons to Favor State Authority

Participation/Accountability -- easier to get your voice heard

Diversity -- can satisfy a greater number of people on any controversial

issue

State Competition -- compete over jobs, factories promotes good schools,

etc

State Experimentation -- can try things out on a smaller scale; maybe

some things are more important to some states than others (e.g.
emissions in CA)

Administrative Efficiency -- better administered if tailored to specific

conditions

Diffusion of Power -- most important to the Federalists

B.
Federalism vs. Decentralization: Whats the difference? How many
advantages stem from decentralization, and how many require federalism?

Are certain functions locked in to state level, but federal gov't takes
almost everything new that pops up; e.g. regulating pollution, public
education -- a lot determined by statute rather than constitutionallyentrenched

You can get most of these benefits from decentralization, as long as it's
not precarious, so maybe entrenching it in Constitution is a good thing
b/c states wouldn't care to do a good job if it will have the rug pulled out
from under them; definitively you don't get the diffusion of power -states don't really protect liberty from the Feds; the most oppressive gov'ts
in American history have been state gov'ts (think slavery and segregation)

States do diffuse power:

1.
takes a gov't to check a gov't, individuals don't have enough power to
pressure anyone (e.g. state gov'ts had to object to no child left
behind)
2.
serve as a rallying point for opposition to the Feds when they're
doing something bad (used institution of state legislature vs.
Sedition Act, Patriot Act)
3. **political circulation -- keep democracy from deteriorating b/c a
party becomes entrenched, creates easier political competition; party
that's out in the center can still run somewhere else and showcase
the policies they'd use if they were in power (4 of last 5 presidents
have been governor when opposition party was in power in DC; can

51

C.

D.

say, it worked in Texas/Arkansas, it works in practice, we're a

credible alternative, etc)
4.
But, there were lots of times when federalism was bad for individual
liberty (e.g. segregation, more currently, environmental, social,
educational stuff)
Reasons to Favor National Authority

Legal Uniformity -- safety standards, standards for commerce

Externalities/Spillover Effects

Race to the Bottom -- competition not always good (maybe want to

eliminate child labor, but can't b/c competing for factories, environmental
policy hurts businesses)

Administrative Efficiency and Concentration of Expertise -- only need one

agency experimenting on safe levels of dioxin, not 50

Mitigation of Faction

Protecting Individual Rights

It's in the Constitution -- maybe shouldn't allow gov't to ignore part of the
Constitution that the gov't is supposed to be bound by, but only takes you
so far b/c the provisions are open-ended, e.g. Commerce Clause, doesn't
tell you how broadly/narrowly to read Congress' power -- have to use
these other principles to decide that
The Argument from Fidelity: Interpreters of the Constitution must defend a
balance between federal and state power not based on any judgment that
federal or state power is a good thing, but rather because the Constitution
mandates a balance and we are obliged to adhere to that principle until the
Constitution is amended

"tool kit" of arguments about federalism -- relevant to how things should

be construed (e.g. commerce clause, necessary and proper clause);
constitution doesn't constrain the choice of which level things are
assigned to; almost everything could be assigned to the federal gov't or to
the states; then question is, which functions do statutes confer on which
level?

Garcia and the Political Safeguards of

Federalism
I.

Generally Applicable Laws and the National League of Cities Doctrine

A.
Internal vs. External Limits on Federal Power
1. Internal Limits derive from the power being exercised itself; they are
generally based on the idea of enumerated powers. E.g., the Commerce
Power only covers interstate commerce.

52

2.

II.

External Limits may exist even when Congress is exercising a valid

enumerated power. E.g., the Natl League of Cities doctrine barred federal
regulation of the states even when it involved commerce.
B.
National League of Cities v. Usery (1976): The Court holds that the FLSA
cannot be validly applied to regulate the wages and hours of certain state
employees.
The National League of Cities test (as stated in Hodel v. Virginia Surface
Mining & Reclamation Ass'n (1981)
1. the challenged statute must regulate the States as States
2. the federal regulation must address matters that are indisputably
`attribute[s] of state sovereignty'
3. the States' compliance with the federal law must directly impair their
ability `to structure integral operations in areas of traditional
governmental functions'
4. the regulation advances no overriding federal interest
C. Garcia v. San Antonio Metropolitan Transit Authority (1985)[P734]: The
Court overrules National League of Cities. The majority concludes that the prior
doctrine is unworkable for two reasons:
1. Impossible to define traditional governmental functions in a consistent
and principled way
2.Constitution simply doesnt impose substantive limits on federal power that
are enforceable by courts the only safeguards are the political process
itself. See Wechsler, Choper
D. What's Left after Garcia? The majority suggests two things:
1. Interference with the "political safeguards" of federalism may warrant
judicial intervention
2. Congress can't destroy the States' "independent existence"
E. Gregory v. Ashcroft, 501 U.S. 452 (1991): The Court replaces the National
League of Cities test for unconstitutionality with a presumptive rule of statutory
construction:
Where Congress legislates in a way that arguably alters the federal/state
balance, Congresss intent must be "unmistakably clear in the language of
the statute"
The Political Safeguards of Federalism
A.
Professor Wechslers Argument [Two kinds of political safeguards]:
1. Political Culture: A consensus that national action is "exceptional in our
polity, an intrusion to be justified by some necessity, the special rather
than the ordinary case."
were expectations of divisions of labor b/t federal gov't and state gov't
(education is state responsibility in 1954, now they pass no child left
behind); would have been a sense it was inappropriate for Congress to do
that -- probably not as true now, now Congress should do something
about big problems ("there ought to be a law": a Congressional law, not a

53

state law), not as much pushback now from the representatives of the
states (maybe not nothing to it, but a lot weaker)
2.
Composition and Selection of the National Government:
a. State-by-State Representation in Congress
b.
State Control over Federal Electorate: Art. I, 2 and the 17th
Amendment provide that who can vote in federal elections for
Congress is a function of state law.
c.
The Electoral College: States are the units through the electoral
college by which the President is selected.
d.
The Senate: Guarantees equal representation for each state.

don't need much JR b/c there are political safeguards on state powers
(similar to Ely, Ely follows Wechsler); political process will take care
of itself b/c there are structural protections built in to how the gov't
works -- states have representatives in Congress, we don't need JR
b/c it's a committee of hens guarding the henhouse
3. Problems with Wechsler's argument about political safeguards of
federalism problems

fox in charge of henhouse

who do the Congressional members really represent? People of state

or national people -- competition for loyalty from Federalist 45 and
46

vertical and horizontal challenges to state power -- national gov't

aggrandizing itself or a bunch of states using national gov't to
enforce their will on the other states

Wechsler/Blackmun in Garcia assumes federal law is made in

Congress, most federal law made by administrative agencies, outside
of the constitutional process and states aren't represented in this
process
How could argument still work?
find institutional mechanisms that help protect states outside of
representatives -- political parties, at both levels and they depend
on each other to get people elected -- ties the fortunes of state and
federal rep's to each other; but that tie can work in both ways, may
cause state political parties to sacrifice their interests in favor of a
national program
interlocking administrative bureaucracies -- most federal law is
enforced by state officials (even though the feds cannot force them
to do it), feds dependant on state officials b/c of that, often forces
them to listen to state officials
procedural safeguards depending on the way federal law is made -hard to get a bill through Congress, so there isn't that much of it
(b/c of checks and balances, etc), allows lots of room for states to
act; but, ways of making law outside of Congress are ways around
this safeguard

54

The New Political Safeguards: More recent work by Larry Kramer highlights two
institutional factors that Wechsler doesnt mention. See Larry Kramer, Putting the
Politics Back into the Political Safeguards of Federalism (2000).
1. Political Parties: Parties "broker state/federal relations" by "linking
the fortunes of officeholders at state and federal levels, fostering a
mutual dependency that protects state institutions by inducing
federal lawmakers to take account of (at least some) desires of state
officials." Kramer, 47 Vand. L. Rev. at 1523.
2.
Administrative Bureaucracy: Much of federal law is administered
by state officials -- such as law enforcement, housing, welfare
benefits, and health care. To this extent, state officials exercise the
administrative influence on the national legislature that would
otherwise go to federal bureaucrats.
C.
Political Safeguards and Judicial Review
1. Wechsler: [T]he Court is on weakest ground when it opposes its
interpretation of the Constitution to that of Congress in the interest
of the states, whose representatives control the legislative process
and, by hypothesis, have broadly acquiesced in sanctioning the
challenged Act of Congress.
2.
Choper: The Court should preserve its political capital for individual
rights cases by holding federalism cases nonjusticiable.
D.
Three Criticisms: See generally Saikrishna B. Prakash & John C. Yoo, The
Puzzling Persistence of Process-Based Federalism Theories (2001); Lynn A. Baker
& Ernest A. Young, Federalism and the Double Standard of Judicial Review (2001)
1.
Garcia is inconsistent with Term Limits
2.
Members of Congress dont represent state political institutions; in
fact, they compete with one another
3. Political safeguards guard only against vertical aggrandizement, not
horizontal aggrandizement
E.
Madisons Version of the Political Safeguards [P762]: In Federalist 45 & 46,
Madison argues that federalism means a competition between the states and
the national government for the loyalty of the people;
1.
states have an advantage in this competition because:

They are represented in the composition of the national

government

Their regulations provide employment opportunities in the

areas that matter most to people on a day-to-day basis
2.
"economic theory of representation": people trade political support
foe economic benefit; maybe that entices the federal gov't into the
matters that are most important to people's lives b/c they're
competing for loyalty (or are they overstepping b/c states did a bad
job?)
Implications:

55

1. Preservation of meaningful state regulatory authority is important;

states need things to do
2. If the Feds win out because they do a better job over time, wheres
the tragedy in that? But they
must win out playing by the rules
F. The Procedural Safeguards of Federalism: The sheer difficulty of navigating
the federal lawmaking process may be a more important protection for state
autonomy than state representation within that process. On this view, the
greatest threats to federalism are developments that make it easier to make
federal law e.g., delegation of lawmaking authority to federal administrative
agencies or federal courts.

The Revival of the Commerce Clause

I.

United States v. Lopez (1995) [P777]

Congress interested in federalizing crime b/c have higher penalties and more
discretion for prosecutors

The Gun-Free School Zones Act of 1990: makes it a federal offense "for any
individual knowingly to possess a firearm at a place that the individual knows, or
has reasonable cause to believe, is a school zone"; zones extend for 1000 feet from
any school

Two Models of Limited Powers

1. Separate Spheres: Federal and State governments have authority over
separate subjects that do not, at least in theory, overlap; each has the final
say in their own areas
2.
Concurrent Powers: Federal and State spheres do overlap -- maybe even
totally; federal authority is paramount in the areas of overlap under the
Supremacy Clause

Modern Commerce Clause Doctrine: Congress can regulate:

1.
the channels of interstate commerce.
2.
the instrumentalities of interstate commerce, or persons or things in
interstate commerce
3. activity having a substantial relation to or substantial effects on interstate
commerce
a.
this is where most of the contentious cases come from
b. Congress gets a lot of deference; they decide in the first interest
c.
Is it commercial activity? If so, aggregate it and defer to Congress

The Holding of Lopez: a three-part test, but the commercial activity part
matters most
1.
Guns in school zones aren't commercial activity, nor is it an integral part
of a larger scheme governing commercial activity
2.
No jurisdictional element that would limit the statute's reach (says
nothing about "interstate")

56

3.

II.

There are no legislative findings (not required, but would make it easier to
conclude that the implicit judgment in the statute was correct)
a.
#2 and #3 mean they want Congress to think about if there's an
actual affect on commerce, to create an evidentiary record that the
court can review; someone will have actually thought about the
federalism problem before it gets to court
4.
Implicit: causal chain from the regulated activity (bringing a gun to
school) to the effect on commerce is simply too long
5. Commerce power is NOT a general police power for the federal gov't

The opinion is unclear whether these factors are independent or cumulative, or

whether they are exclusive; some other possibilities this law was struck down:
1.
Congress may regulate only where there is some good reason to prefer
federal action over state action e.g., spillover effects, race to the bottom
concerns, etc.
2.
Statute fails because it fails to leave anything meaningful on the other
side; there's no principled rationale for excluding anything from
Congresss power if this law is within it (Breyer's dissent proves too much,
would allow federal regulation of anything b/c anything in the aggregate
will have a substantial effect on interstate commerce)

The Dissents
1. Justice Breyer: Guns in schools substantially affect interstate commerce
because education is economically linked to national productivity
2.
Justice Souter: The Court cant enforce limits on the Commerce Clause
without falling into the same form of discredited judicial activism that
characterized the Lochner period; this should only be rational basis
scrutiny (Wickard)
United States v. Morrison (2000)[P804]
A.
Holding: The Court strikes down the private civil suit provisions of the
Violence Against Women Act
1.
VAWA falls outside the Commerce Power
2.
VAWA also cannot be justified under the Section Five power
B.
The Commerce Holding:
1.
Court rejects the extensive findings by Congress
2.
discounts the importance of a jurisdictional element
3. critical factor is that the regulated activity violence against women is
not commercial in nature; is a substantive limit on what Congress can
regulate
a.
VAWA struck down b/c would allow Congressional regulation of
anything; Court wants to keep Commerce power as an enumerated
power with at least some limits -- says Court is serious about limits,
that Lopez wasn't a fluke
C.
The Section Five Holding: Congress may not use Section Five here because
the VAWA is directed at private activity. See Civil Rights Cases.

57

1.

III.

IV.

Congress had findings to justify it under section 5 and under Commerce

Clause; hard to justify under section 5 b/c it's not just one
unconstitutional practice, but a cluster (e.g. spousal privilege, can't testify
or can't rape a spouse)
2.
also includes patterns of prosecutorial discretion that may or may not be
for constitutional bias, also juries often aren't sympathetic
3. overall picture is inadequate state response to the equal protection of the
laws against beating people up, is enforced more against people that beat
up men vs. people that beat up women
4.
problem is, the VAWA doesn't touch the States, Congress can't create a
federal cause of action against a private actor; could argue it's a substitute
cause of action for the State statutes that gives women a way to avoid
state action, also, how evaluate if it's congruent and proportional when it's
a cluster of actions that may or may not violate the constitution
D.
Souter, J., dissenting: Justice Souter says two things:
1.
The Court has fallen back on its pre-1937 ways: Looking to areas of
traditional state concern is the same as dual federalism; should be
deferential b/c we can't draw principled lines here
2.
We shouldnt have judicial review of federalism issues at all; Constitution
"remits them to politics
Statutory Construction as an Alternative: lower courts unwilling to extend
Commerce limits from Morrison and Lopez to strike down other statutes
A. United States v. Bass (1971): The Court narrowly construes a federal criminal
statute because a broad reading would push the limits of the Commerce Clause
B.
Jones v. United States (2000): A unanimous Court construes the federal arson
statute to reach only commercial buildings
C.
Solid Waste Agency of Northern Cook County v. United States Army Corps
of Engineers (2001): Court invalidates an administrative regulation
promulgated by the corps that prohibited developing any wetland inhabited by
migratory birds; if federal power were to extend into such a problematic area,
Congress not the agency would have to make the decision
The End of the Line? Gonzales v. Raich (2005)[P806]
A.
Holding: Court upholds Congresss authority to regulate the medicinal use of
homegrown marijuana under the Controlled Substances Act
B.
Key Issues
1. Characterization of the Regulated Activity: Is the activity only
medicinal use of homegrown marijuana or is it marijuana consumption
in general?
a.
Facial Challenge: statute is unconstitutional on its face, can never be
constitutional; courts don't like these b/c forces them to speculate
on future cases (advisory opinion?)
b. As-Applied Challenge: statute is unconstitutional as applied to this
situation; allows court to decide only the case in front of it; only

58

2.

3.

counts on that one application of the statute, carving out the

application, not a part of the statute (that clause still stands)

if say "not going to carve out", means "not going to consider asapplied challenges"
Comprehensive Scheme: Lopez Court suggested that Congress may
regulate non-commercial activity as an essential part of a larger
regulation of economic activity
a.
Necessary and Proper: Scalia concedes this activity is noncommercial, but says it's part of the necessary and proper means of
regulating commercial drug sales (limits on this argument?)
b. Maybe better classified as a field preemption case? Since Congress
has regulated so much on drugs, probably didn't want to allow state
regulation
State Regulation: Is it relevant to the question of national power that a
state regulatory scheme is already in place?

Congresss Power to Enforce the

Reconstruction Amendments
I.

Overview
A.
Text
1.
11th Amendment provides for state sovereignty, which the Reconstruction
Amendments override in certain cases
2.
Section Five of the 14th Amendment provides that The Congress shall
have power to enforce, by appropriate legislation, the provisions of this
article
3. The second sections of both the 13th and 15th amendments contain virtually
identical language
4.
The Bingham Proposal (discussed in Boerne) would have provided that
Congress shall have power to make all laws which shall be necessary and
proper to secure to the citizens of each State all privileges and immunities
of citizens in the several States, and to all persons in the several States
equal protection in the rights of life, liberty, and property
B.
Why We Care
1.
Section Five power may provide an enumerated power where no other
power is available (Boerne)
2.
Section Five power allows Congress to overcome some federalism barriers
such as state sovereign immunity that other powers cannot (Garrett;
Kimel)
3. Section Five power may allow Congress to compensate for judicial
underenforcement of constitutional norms
C.
Underenforced Constitutional Norms:

59

1.

II.

The refusal of a court to enforce the Constitution because of institutional

competence concerns
2.
In other words, judicially-enforced doctrinal rules may not reflect the full
meaning or force of a constitutional provision. See, e.g., Williamson v. Lee
Optical (refusing to second-guess the legislature on whether a law is
irrational or arbitrary under the Due Process and/or Equal Protection
Clauses)
3. If this is true, then other branches of government may be able to go
further than the courts can in enforcing such rights. See Laurence Sager,
Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91
Harv. L. Rev. 1212 (1978).
D.
History
1.
The Reconstruction Amendments (and the War they arise out of) were
aimed directly and restricting state sovereignty
2.
The enforcement provisions of the amendments reflect a preference for
legislative enforcement and a profound distrust of courts
a.
Context of Reconstruction is suspicious of courts and of states;
wasn't enough to create rights and allow courts to enforce them;
courts gave us Dred Scott and didn't like Reconstruction
b. Congress would make sure the rights were vindicated; wanted their
statutes to have the last word in enforcing human rights in the
South, not court-centered like other rights
The Voting Rights Act Cases: To what extent can Congresss power to enforce the
Reconstruction Amendment go beyond what a court might rule in enforcing rights?
A. Katzenbach v. Morgan (1966)[P833]:
i.
Court upholds a provision of the Voting Rights Act barring states from
using literacy tests to exclude voters educated in American schools where
English was not the primary language of instruction (e.g., Puerto Ricans)
ii.
Statute upheld despite it's conflict with a previous holding by the Court
that literacy tests do not violate the Equal Protection Clause (Lassiter v.
Northampton Election Bd. (1959))
B.
Three Approaches to Congresss Power:
i.
Remedial (First ground in Morgan): Congress may act to prevent or
remedy an actual constitutional violation and it may provide remedies
that a court could not provide
ii.
Factual (Second ground in Morgan conventional reading):
Congress may use its superior fact-finding capacity to find a constitutional
violation where a court would not
iii.
Substantive (Second ground in Morgan radical reading): At least
where reasonable people could disagree about what the Constitution
means, Congresss interpretation is entitled to deference even if the
Court disagrees with it (THIS ONLY APPLIES TO THESE AMENDMENTS
THAT HAVE TEXTUAL COMMITMENTS OF AUTHORITY TO
CONGRESS)

60

C.

III.

Remedial Powers: Congress may devise remedies for racial discrimination

and other constitutional violations that go further than what a court would
ordinarily prescribe
Complex Remedies: Courts generally just strike down the offending
provision. Congress can prescribe much more intricate remedial
mechanisms, such as the preclearance provision in 5 of the Voting
Rights Act. See South Carolina v. Katzenbach, 383 U.S. 301 (1966).
Preventive Remedies: Ripeness doctrine often prevents courts from acting
in advance, but Congress may judge some actions necessary to prevent
constitutional violations in the future. See, e.g., Oregon v. Mitchell (1970)
(upholding the nationwide ban on literacy tests in the Voting Rights Act
as reasonably necessary to prevent future use of such tests to
discriminate)

One of the grounds in Morgan involves a similar argument that, if

Puerto Ricans can vote, that will prevent invasions of their other
rights by the government
City of Boerne v. Flores (1997)
A. Smith and the RFRA: In Employment Division v. Smith (1990), the Court held
that a state may burden religious practices without triggering strict scrutiny
under the Free Exercise Clause, as long as the law is generally applicable to
religious and non-religious practices alike (peyote and Native American
religion)
i.
The RFRA sought to overturn Smith by prohibiting both the federal and
state governments from substantially burdening a persons exercise of
religion even if the law in question is generally applicable unless the
law can pass strict scrutiny
ii.
Court struck down RFRA, says Congress only has remedial, not plenary
authority; can't change the meaning of the Free Exercise Clause, can't
define the meaning of the Free Exercise Clause in a different way than the
Court does; the Court decides what is a Constitutional violation (and this
isn't unconstitutional according to Smith)
B.
The Test: Congress may legislate under 5 only if:
i.
the legislation is designed to prevent or remedy an actual constitutional
violation (defined by the SCT) by a State government; and
ii.
the legislation is congruent and proportional, in terms of its scope and
duration, to the violation identified
1.
Court says complete ban on literacy tests is ok in Katzenbaugh, it's a
prophylactic remedy and we already said that 90% of literacy tests
are unconstitutional, so banning 100% of them isn't that big of a deal
2.
in Gary (disabilities discrimination), statute banned all of it even
though probably 2/3 of it would stand up to Constitutional test; gap
is too big and the law goes down
3. Guideline is, if it's something that triggers high scrutiny, then the
law is probably fine b/c most of it would be banned by the Court, if

61

it's a rational basis scrutiny and the law bans all of it, the law will
probably go down -- legislative record and findings crucial here to
show there's a discriminatory motive
C.
Constitutional Concerns about a Broader Section Five Power
i.
Federalism: Broad Congressional authority to legislate under Section
Five might result in broad preemption of state authority
ii.
Separation of Powers: A substantive interpretive power might
undermine the judiciarys power to say what the law is; someone has to
have a final say, and it's the SCT b/c of JR
Note -- Civil Rights Acts of the 1960's were passed under the Commerce Clause, not
under 14th amendment b/c they're banning discrimination by private actors;
Katzenbach v. McClellan (discrimination in a diner in Alabama) and Heart of Atlanta
Motel (discrimination in a hotel)

The Spending Power

I.

II.

Introduction [P859]
A.
The Taxing and Spending Clause: Article I, 8: Congress shall have power
To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and
provide for the common Defense and general Welfare of the United States.
B.
The Property Clause: Art. IV, 3, cl. 2: "Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of any
particular State."
C.
Regulatory Taxing and Spending: critical issue is the extent to which
Congress can use spending as a hook to regulate in a way that it couldnt
regulate directly
Hamilton and Madison on the Spending Power
A.
Madison: Madison's view was that the Spending Clause "amounted to no more
than a reference to the other powers enumerated in the subsequent clauses of
the same section"; the grant of power to tax and spend for the general national
welfare must be confined to the enumerated legislative fields committed to the
Congress
B.
Hamilton: Hamilton maintained that "the power of Congress to authorize
expenditure of public moneys for public purposes is not limited by the direct
grants of legislative power found in the Constitution"; rather, "its confines are
set in the clause which confers it"
1. Implications of the Hamiltonian View
a. Principle of Unenumerated Means: When Congress legislates in
furtherance of an enumerated end, can use any necessary and proper
means

62

b.

III.

Principle of Unenumerated Ends: When Congress employs an

enumerated power, can use it for any purpose whether or not it is an
enumerated end
c.
Corollary #1: Congress's necessary and proper authority doesn't
extend to unenumerated ends
d.
Corollary #2: Unenumerated ends do not themselves have the force
of federal law -- i.e., they have no preemptive effect; states are free to
legislate in pursuit of contradictory goals
South Dakota v. Dole (1987)[P859]: Court upholds a federal law conditioning 5%
of federal highway grants on states' raising their drinking age to 21
A.
The Twenty-First Amendment: Repeals the Eighteenth Amendment
(empowering Congress to enforce Prohibition) and provides that "[t]he
transportation or importation into any State, Territory, or possession of the
United States for delivery or use therein of intoxicating liquors, in violation of
the laws thereof, is hereby prohibited."
B.
Five-Part Test for Conditional Spending: Spending conditions are OK if:
1. In pursuit of the general welfare
2.
Clear statement of conditions (most important part; almost the
only way something can be struck down)
3. Germane to the federal interest in particular national projects or
programs
4.
No independent constitutional bar
5. Not coercive (implied)
C.
Unconstitutional Conditions as a Limit on the Spending Power [P868]
Approaches
1. Clear Statement: condition must be clearly stated in the
legislation granting the funds
2. Germaneness: condition must be tied somehow to the
purpose of the funds (means/ends scrutiny)
3. Coercion: Suggestion in Dole of a coercion limit, but no
discussion
Unconstitutional Conditions Situations for Individuals (Brennan
concerned about gov't benefits being conditioned on giving up individual
rights): gov't can give you lots of benefits that aren't enumerated in the
Constitution; you don't have a constitutional right to those benefits, so
the gov't can take them away; what if the gov't tries to attach conditions
to the unguaranteed rights that force you to waive a constitutionallyguaranteed right?
1. denial of family planning funds to clinics that perform
abortions
2. denial of medicaid to someone who has an abortion
3. denial of student loans to those who criticize the gov't
4. denial of federal money to people or groups engaging in
certain forms of expression; e.g. denial of grants from the

63

National Endowment for the Arts to artists whose work is

arguably indecent
5. conditioning development permits on landowners' agreement
to use their land in ways that the Taking Clause would bar the
Government from requiring directly
6. denial of federal funding to universities that refuse to allow
the military to recruit on campus (Rumsfeld v. FAIR)
Justice OConnors Approach: Spending conditions may only prescribe
how the money itself is to be spent

Clear Statement Rules

I.

An Introduction to Statutory Construction [P882]

A.
Agency Theory: The dominant paradigm of American statutory construction is
that judges are to be faithful agents of the enacting Congress (resolve
ambiguity by divining Congressional intent); hard b/c borderline cases often
unclear, statutes that reach the SCT are going to be really ambiguous
B.
The Basic Problem:
1.
Statutes are inevitably ambiguous
2.
human language is limited in its ability to convey determinate meanings
3. legislative foresight is limited in its ability to anticipate cases that may
arise; political supporters of a statute may not be able to agree on all
conceivable applications and hence fudge on those questions
4.
Court has to come up with extra-constitutional doctrines to improve
enforcement of under-enforced principles and limitations (e.g. clear
statement rules)
C.
A Solution Default Rules (Canons) of Statutory Construction:

NOTE: has to be ambiguity for these canons to come into play

1. Expressio Unius est Exclusio Alterius: Inclusion of one thing indicates
exclusion of the other; part of how we use language
2.
Avoid Surplusage: Every word in the statute should be construed so as
not to be superfluous
3. Repeals by Implication are Disfavored: Statutes should be read to be
consistent with prior law; #2 & 3 b/c legislatures are careful about how
they draft and word legislation
4.
The Rule of Lenity: Penal statutes should be narrowly construed

Two Kinds of Canons

1. Descriptive: Rules of thumb meant to approximate the most likely intent
of the legislature in the unprovided-for case; usually based on practical
considerations
2.
Normative: Default rules designed (usually by courts) to impose certain
values whether the legislature cared about them or not (e.g. we don't like
to put people in jail, so read criminal statutes narrowly)

64

II.

The Canon of Constitutional Avoidance: Where an otherwise acceptable

construction of a statute would raise serious constitutional problems, the Court
will construe the statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress; two kinds of constitutional
avoidance (see Jones):
1.
If we construe this statute to reach a private residence, it will be
unconstitutional, so instead of striking it down, we construe it narrowly
so it isn't unconstitutional; probably a descriptive canon, probably what
Congress would have wanted the court to do; doesn't resolve the
constitutional question
2.
allow a mere constitutional doubt to force them to read it narrowly, only
way to justify it is that they're trying to protect a normative principle of
federalism

The Chevron Doctrine: Courts must defer to reasonable constructions of an

ambiguous statute by the agency that administers the statute. Chevron U.S.A.
Inc. v. NRDC (1984)
Two Step Analysis
1. Step 1: Is the statutory language ambiguous?
2. Step 2: Is the agencys construction reasonable?
3. Justifications
The agency has expertise concerning the subject matter and intent of
the statute
Ambiguous language may signal a delegation of lawmaking authority
by Congress to the agency
Agencies are more democratically accountable than unelected judges
Federalism Clear Statement Rules
A. Jones v. United States (2000)[P883]: It is a federal crime to damage or destroy
by means of fire or an explosive, any . . . property used in interstate or foreign
commerce or in any activity affecting interstate or foreign commerce
1.
Court holds that this does not cover arson of a private residence b/c that
would be beyond Congress' Commerce power
2.
SCT would defer if Congress made a conscious decision, a clear statement
rule forces them to think about it and consider the intrusion into state
power, maybe they'll write the laws a little more narrowly if they think
about it (certainly is a criminal law in IN against arson, so this a
redundant statute and, if it's read broadly, it does intrude upon an area of
traditional state power (i.e. criminal law))
B.
Gregory v. Ashcroft (1991)[P887]
1. The Statute: The Age Discrimination in Employment Act makes it
unlawful for an "employer" "to discharge any individual" who is at least 40
years old "because of such individual's age."
a.
"Employer" includes "a State or political subdivision of a State."
b. But 'employee' shall not include any person elected to public office
in any State or political subdivision of any State . . . or any person

65

C.

chosen by such officer to be on such officer's personal staff, or an

appointee on the policymaking level or an immediate adviser with
respect to the exercise of the constitutional or legal powers of the
office."
2.
The Clear Statement Rule: Court replaces the National League of Cities
test for unconstitutionality with a presumptive rule of statutory
construction: Where Congress legislates in a way that arguably alters the
federal/state balance, Congresss intent must be "unmistakably clear in
the language of the statute."
a. Consistent with Garcia, taking it and running with the idea of
political and procedural restraints and we're going to hold Congress
to those restraints by making sure there was a deliberative process in
Congress that was obvious in the statute, construing the exceptions
broadly
Solid Waste Auth. of Northern Cook Cty. v. U.S. Army Corps of Engineers
(2001)[P898]
1. The Statute: 404(a) of the Clean Water Act regulates the discharge of
dredged or fill material into "navigable waters." "Navigable waters" are
defined as "the waters of the United States, including the territorial seas"
2.
Corps Definition of Waters of the U.S.: Corps regulations include
"waters such as intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use, degradation or
destruction of which could affect interstate or foreign commerce"
3. The Migratory Bird Rule: Subsequent regulations clarify that waters of
the U.S. extends to all waters
a. Which are or would be used as habitat by birds protected by
Migratory Bird Treaties; or
b.
Which are or would be used as habitat by other migratory birds
which cross state lines; or
c.
Which are or would be used as habitat for endangered species;
or
d.
Used to irrigate crops sold in interstate commerce." 51 Fed.
Reg. 41217.
4.
The Clear Statement Rule: The Court refuses to defer to the Corps
under Chevron because the regulation is at or near the limits of
Congresss commerce power
a.
Not hard to think Congress can regulate this; easy to see clean water
act as a comprehensive regulatory attempt, but the agency running
away with a relatively narrow grant of power and that's not too
popular with the Court, want a more specific grant of authority from
Congress
b. B/c it's at limit of Commerce power and construing broadly might
violate constitution, they construe it narrowly

66

c.

D.

Can always get judicial review of an agency's rules on the basis that it
doesn't conform to the statute (Chevron doctrine [P910])

says agency usually involved in drafting the statute, full of

experts, Congress delegated enforcement power to them so
they necessarily have some power to interpret it

lots of deference to agency's interpretations where there's

ambiguity in the statute, reasonable interpretation is
acceptable, just has to be in the ballpark (dramatically expands
agency power, can say what the statutes mean b/c there's often
ambiguity)

if it were a straight-up administrative law case, the agency

would win
d. If it's within the federal power, why do we care whether it's the
agency or Congress?

Garcia -- states aren't represented in agency like they are in

Congress, so they aren't allowed to make laws that impinge on
state authority in the same way as Congress b/c they're not
accountable to states in the same way as Congress

A lot easier for agencies to make law, hard to get bills through
Congress, but there are LOTS of agency laws, easier for them to
make federal law; so, if you allow agencies to impinge on state
law, it's too easy and there's no political safeguards of
federalism

This is probably within Congress' power, but the Court wants

Congress to make this law, not the agency
Other Federalism Clear Statement Rules
Presumption Against Preemption: Congress must clearly state its intent to
preempt state law.
Conditional Spending: Conditions on grants of federal monies to the
States must be clearly stated.
Use of 5 Power: Congress must clearly state its legislating under 5 of
the 14th Am rather than under the Commerce Clause.

The Anti-Commandeering Doctrine

I.

Overview [P911]
A.
The Anti-Commandeering Principle: "Congress may not simply
'commandee[r] the legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program." Rationale:
1. history of dual sovereignty
2.
political accountability

67

B.

II.

Branch by Branch: The Court has approached the anti-commandeering

problem separately for each branch of state government that might be
commandeered.
1. Judicial: In Testa v. Katt, the Court held that Congress can give state
courts jurisdiction over federal claims, and that state courts can't refuse to
hear such claims -- at least when comparable claims under state law
would be heard
2.
Legislative: In New York v. United States, the Court holds that Congress
can't commandeer the state legislature by requiring to pass laws
implementing a federal program
3. Executive: In Printz, the Court extends New York's prohibition to
attempts by Congress to commandeer state executive officials by
requiring them to enforce federal law
C.
Commandeering as a Process Federalism Doctrine: Process Federalism
is a sort of Democracy and Distrust for federalism doctrinal limits should
focus on defects in the political process by which states are represented in
Washington, D.C.
Printz & New York fit this model by requiring the national government to
internalize two kinds of costs:

Political Costs: Disapproval of a particular program will be directed

at the national government, which initiated the policy

Enforcement Costs: The costs of enforcing the program will be borne

by the national government, either directly or by paying the states
Legislatures: New York v. United States (1992)[P912]
A.
The Statute: Low-Level Radioactive Waste Policy Amendments Act of 1985
creates three types of incentives:
1.
Monetary incentives: One quarter of the surcharges collected by sited
states are transferred to an escrow account held by the Secretary of
Energy, then distributed to each State that complies with a series of
deadlines toward developing a disposal plan and joining a sited compact,
etc.
2.
Access incentives: States failing to meet deadlines can be charged double
surcharges for a brief period, then denied access to disposal facilities
thereafter.
3. The Take Title requirement: States failing to provide for waste generated
within the State by 1996 must, upon request of a waste generator, take
title to and possession of the waste, and are liable for all damages directly
or indirectly incurred by the generator or owner as a result of the State's
failure to take possession
4.
Problems:
a.
Congress asking them to make legislation to follow the scheme as
opposed to being forced to comply with federal law; state legislatures
become instruments of federal regulation, being forced to regulate

68

III.

on behalf of the federal gov't; have to regulate the people who are
generating the waste
b. By forcing legislation, it's beyond infringing on state sovereignty b/c
it's taking away the state's ability to make their own laws, making
them into puppet gov'ts, protects the political process and one of the
political safeguards of federalism
1.
obscures the clear lines of political accountability (no accident
that this is a VERY unpopular action and the feds don't want to
get voted out of office, want the states to get voted out)
2.
not the same function as any private actor like in Garcia,
lawmaking is a special function of the states, the essence of
sovereignty
B.
Other Federal Tools: The anti-commandeering rule still leaves three ways
that the Federal Government can achieve its ends:
1.
Direct Regulation: Congress can always simply regulate on its own.
2.
Conditional Spending: Congress can put conditions on federal funds, so
long as fairly loose constraints are observed. See South Dakota v. Dole.
3. Conditional Preemption: Congress can give States a choice of regulating
according to federal standards or accepting federal direct regulation of the
same subject matter.
Executives: Printz v. United States (1997)[P935]
A.
The Statute: Brady Act provides for a national instant background check
system for handgun sales; in the interim before the system is operational, the
Act requires local "chief law enforcement officers" (CLEOs) to perform certain
duties:
1.
on receipt of notice from a firearms dealer, to "make a reasonable effort"
to ascertain whether the purchaser may legally buy a gun
2.
to provide a written statement of reasons if the CLEO notifies the dealer
that the purchaser is ineligible
3. to destroy any records if the CLEO finds no basis for objecting to the sale
B.
Commandeering of Executive Officers: Court holds that the anticommandeering doctrine covers executive officers as well as state legislatures
1. Scalia walks through the different kinds of authority Congress might have
to do this -- great review by breaking down the types of constitutional
authority -- text, precedent, etc to policy decisions; go back and make
checklist from this case; no textual support, historical evidence not
decisive
2. Is a complete bar; can't commandeer executive officials at all, no
balancing (could be a characterization problem b/c not always clear when
you're commandeering)
3. Not common at all for state officials to enforce the law of another state
(not strange for courts, Testa)
4. Political accountability is strongest argument; political costs and financial
costs should be borne by feds

69

IV.

V.

Judiciaries: Testa v. Katt (1947)[discussed in Printz]

A.
Facts: The federal Emergency Price Control Act provides that a buyer of goods
above the prescribed ceiling price may sue the seller "in any court of competent
jurisdiction." Federal courts have jurisdiction "concurrently with State and
Territorial courts."

Testa purchased a car for a price in excess of the ceiling, and successfully
sued the dealer, Katt, in state court in Rhode Island. On appeal, the State
Supreme Court reversed on the ground that a state need not enforce the
penal laws of a government which is "foreign in the international sense,"
and that the federal statute was both penal and foreign for those
purposes.
B.
Held (Black, J., for a unanimous Court): State courts have to hear federal
causes of action, at least where a comparable claim arising under state law
would be heard

The Supremacy Clause binds state courts, and it forbids an individual

state to refuse to enforce federal law on grounds that it contradicts local
policy
A Limit? Reno v. Condon (2000)
A.
Holding:
1.
The Court upholds the Drivers Privacy Protection Act, which restricted
the states ability to sell personal information collected by motor vehicle
departments
2.
Court rejected the argument that because the DPPA required state
officials to take particular actions and spend time on compliance, it
commandeered those officials
3. Rather than requiring action by state officials, it was a "prohibition of
conduct" (maybe not an effective limit or test b/c most regulations can be
characterized either way)
4.
can require the states to do stuff on behalf of the federal gov't and can
subject them to the same regulation that any other entity with private info
is subject to
a.
here, states are the object of regulation, not the instrument
b. if they're the instrument that's commandeering, Congress can
regulate the states to do stuff; power of direct regulation, not power
to ask the states to regulate on your behalf
B.
The Limit: anti-commandeering doctrine turns on whether the states are
being asked to regulate third parties on the federal governments behalf, not on
whether federal regulation of the states themselves is cumbersome for state
officials
C.
Another Limit? Court finds that the DPPA regulated private parties as well as
the states and was therefore generally applicable"; reserved judgment on
whether federal regulation of only state governments would be constitutionally
problematic

70

The Modern Dormant Commerce Clause

I.

II.

Overview
A.
Four Limits on State Power

The Dormant Commerce Clause

The Privileges and Immunities Clause of Art. IV (national

citizenship, not Slaughterhouse)

The Equal Protection Clause

The Preemptive Effect of Federal Law

B.
Two Different Tests

The Anti-Discrimination Rule: Where states discriminate against

interstate commerce, such statutes are virtually per se invalid

Note that the cases distinguish to a limited degree between statutes

that are facially discriminatory (the easiest ones to invalidate) and
laws that have a protectionist or discriminatory purpose or effect;
both are ultimately subject to the same high burden of justification

Note that states can regulate a lot of commercial stuff as long as they
treat in-staters and out-of-staters the same

The Balancing Test: Nondiscriminatory laws that incidentally burden

interstate commerce are subject to a balancing test that weighs the
legitimate local interests against the impact on interstate commerce
C.
Congress's Power to Consent or Preempt

Consent: Congress can permit state laws that would otherwise violate the
dormant Commerce Clause; Congress must express itself clearly before
courts will hold that it has conferred permission to discriminate against or
burden interstate commerce

Preemption: Even where a state law doesn't fall within the relatively
narrow categories of laws that courts are willing to strike down, Congress
retains the power to preempt state laws by passing federal laws that either
explicitly trump the state law or regulate in a way that conflicts with
state requirements

The Importance of Inertia: It's hard to get a law passed, and the effect
of the dormant Commerce Clause is to place the burden of overcoming
legislative inertia on States that wish to discriminate against or burden
interstate commerce; the dormant Commerce Clause establishes a default
rule
D.
A Key Defense the Market Participant Rule: States are not subject to
dormant Commerce Clause constraints when they are operating as participants
in a market rather than regulators of the market
Discrimination Against Interstate Commerce
A.
Three factors that help determine whether law struck down if incidental
burden [Chem., P436]

71

III.

Largest factor is whether the benefits of the state law outweigh the
burden in interstate commerce; if the court determines benefits win, these
others don't matter (more likely if law nondiscriminatory)

If its effect is to exclude virtually all out-of-staters from a particular state

market, but not if it only excludes one group of out-of-staters

If it imposes costs on out-of-staters that in-staters don't have to bear

If Court believes the law is motivated by a protectionist purpose and helps

in-staters at the expense of out-of-staters (no clear criteria for this yet)
B.
Theories Behind the Anti-Discrimination Rule

Political & Economic Unity (fear trade wars)

Social Welfare

Representation Reinforcement (like Ely argument that court should

intervene in ways that protect the political/representative process, like
intervening with strict scrutiny vs. discrimination against black people b/c
they weren't as well-represented)
C.
Surviving Strict Scrutiny: A discriminatory state law may survive strict
scrutiny if it protects a legitimate state interest and there are no
nondiscriminatory alternatives available (Maine v. Taylor (1986))
D.
Discriminatory Purpose or Effect: Sometimes the Court is willing to strike
down facially-neutral laws that are discriminatory in either their purpose or
their effect (Hunt v. Washington State Apple Advertising Commn (1977)); but
difficult to derive a clear rule distinguishing between the laws that are struck
down on these grounds and the ones that upheld (Exxon Corp. v. Governor of
Maryland (1978))
E.
Philadelphia v. New Jersey (1978)[P963]

Facially discriminatory, but had good social welfare arguments

People of Philly and owners of landfills in NJ suffer; the landfill owners

near Philly benefit as do the people of NJ who don't have tons of landfills
around

SCT wants the burden of laws to fall on the people represented by those
that make laws, don't want costs to fall on people who aren't represented
in the legislature (complicated here b/c there's in-staters and out-ofstaters on both sides; but are also those who benefit on both sides; virtual
representation by those with similar interests, works better here than with
Parliament and the colonists)

Rehnquist dissent says this law is part of state's police power; striking this
down might create perverse incentives (e.g. NJ ban all landfills, what if
every state does that?); there's no intermediate option
a.
Lots of fairly sensible state regulations get struck down under
dormant commerce clause arguments b/c of the fundamental
principle (remember, it's strict scrutiny)
Incidental Burdens on Interstate Commerce and the Balancing Test
A.
The Pike Test: Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on interstate commerce are only

72

B.

incidental, it will be upheld unless the burden imposed on such commerce is

clearly excessive in relation to the putative local benefits. Pike v. Bruce Church
(1970)

If a law is found non-discriminatory (and the Pike test is applied), the law
is usually upheld

Pike test continues by including a least restrictive alternative caveat; "the

extent of the burden that will be tolerated will of course depend on the
nature of the local interest involved, and on whether it could be promoted
as well with a lesser impact on interstate activities" [Chem., P439]

Court has never invalidated a nondiscriminatory law based on the

"least restrictive alternative"
Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981): The Court
strikes down a state law banning 65-foot double trucks from Iowas highways,
on the ground that it imposes an excessive burden on interstate commerce

Approaches to the States Safety Interest

Powell plurality says strict review of the factual record

says there's not enough evidence on Iowa's behalf, doesn't really

make a difference in safety

got one side of the scale to go to zero and that we can weigh
against the costs

Brennan concurrence says deference, but only if safety was the

States actual purpose

Found improper motives in exemptions for border cities

(exemptions to statutes make them more suspect, especially if
they remove the burden from the in-staters)

Said this is a discrimination case masquerading as a burden

case

Rehnquist dissent says deferential review for rational basis

Problem with line-drawing: hard to defend things that are close

to the line, the incremental differences

Rehnquist says that shouldn't be the question, question should

be "is it legitimate to regulate truck length?" if yes, then we
should let legislature draw the line

This case problematizes the fact-finding deference to

legislature, courts are capable of processing this
information (but is that legit function for judges?)

Justice Scalia on Balancing Tests: In balancing, the scale analogy is not

really appropriate, since the interests on both sides are incommensurate;
it is more like judging whether a particular line is longer than a particular
rock is heavy. Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988)

Scalia would prefer to get rid of dormant commerce challenges to

non-discriminatory laws (even if the substantially burden interstate
commerce) b/c rules would be more bright line

Says leave it to Congress, this is not a judicial function

73

C.

How to Avoid Weighing Values:

Apply a presumption or "thumb on the scale"; will decide the close cases

Limit the interests considered either by focusing on actual purpose or

excluding illegitimate purposes.

Flip the interests on one side to cut the other way

Discount the interests on one side because they can be served by less
restrictive alternatives

Market Participants, Privileges & Immunities,

and Equal Protection
I.

II.

The Market Participant Doctrine

A.
The Basic Rule: "[I]f a State is acting as a market participant, rather than as a
market regulator, the dormant Commerce Clause places no limitation on its
activities."
1. States can behave like a private actor in the market, can do anything a
regular business can, e.g. discriminate against who it wants to do business
with
2. Giving the gov't a level playing field with regular businesses; not an
obvious doctrine b/c the states do have some advantages over private
businesses (though not always as much money)
Cases for Market Participant
A.
Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976): Initial recognition of
the doctrine; held that States may confer subsidies on local interests when
acting as a market participant.
B.
Reeves, Inc. v. Stake, 447 U.S. 429 (1980): Held that States may choose with
whom they will or will not deal when acting as market participants.
C.
White v. Massachusetts Council of Construction Employers, Inc., 460 U.S.
204 (1983): Held that States can impose restrictions on their dealings as market
participants beyond the limits of formal privity in other words, the state can
affect transactions beyond its immediate dealings.
D.
South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82
(1984)[P990]:
1.
Invalidated downstream restrictions on use of goods sold by state acting
as a market participant, based on the restrictions regulatory effect
2.
Alaska's trying to control what they do with it once they already sold it
(antitrust principle of tying); you can't leverage control of one market into
control of another market
3. Alaska's actually regulating the timber-processing market, in which it's
not a participant
4.
Not looking at the contracts, looking at the consequences of the
regulation (functional test)

74

5.

III.

Alternative Options in South-Central Timber: Rehnquist's dissent

notes that the state could achieve the same effect in several other
constitutional ways (so why strike down this one?):
a.
could sell only to companies maintaining processing plants in-state
(Reeves)
b. could directly subsidize the Alaska processing industry (Alexandria
Scrap)
c.
could pay to process the logs in Alaska and then sell only processed
logs

Another line-drawing problem -- hard to justify the close cases on

either side of the line
The Privileges and Immunities Clause of Article IV
A.
Article IV, 2, cl. 1: "The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States."
B.
Historical Meaning: The leading case defining the privileges and immunities
of state citizenship is still Justice Bushrod Washington's opinion in Corfield v.
Coryell, Fed. Cas. No. 3,20 (C.C.E.D.Pa. 1823), which said that the clause
protects interests "which are fundamental; which belong, of right, to the
citizens of all free governments. [These] may [all be] comprehended under the
following general heads:

Protection by the government, the enjoyment of life and liberty, with the
right to acquire and possess property of every kind, and to pursue and
obtain happiness and safety; subject nevertheless to such restraints as the
government may prescribe for the general good of the whole."
C.
Other Privileges and Immunities

The right to practice law

The right to travel

All of these are broad categories of rights that the states must treat
equally (don't have to grant them to anyone, but if grant them to instaters, must grant to out-of-staters
D.
United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208
(1984)[P999]

Two Initial Questions

a.
Does the P&I clause apply to restrictions imposed by a municipal
government?
b. Does the P&I clause apply to restrictions based on municipal, as
opposed to state, citizenship?

The Basic Analysis

a. Is the right fundamental enough to interstate harmony (part of
Bushrod Washington's class of rights in Colfield) to be protected
under Article IV, sec. 2?
b. Is there a "substantial reason" for the difference in treatment? And
does the degree of discrimination "bear a close relation" to that
reason?

75

What's the level of scrutiny? Higher than rational basis, probably not
strict, more like intermediate; there has to be a reason, a real reason,
the actual reason (we're not going to make one up) has to be a good
fit and a good reason (lower scrutiny than dormant commerce
clause)
d. Decided on a case-by-case basis by close anaylsis
E.
Advantages of the Privileges and Immunities Theory

P&I is pretty broadly applicable (not as much as any out-of-stater

discrimination)

intermediate scrutiny

no market participant

no congressional permission to break

F.
Disadvantages of the Privileges and Theory

Only people, not corporations, can be protected by this

Lower than strict scrutiny

The Equal Protection Clause
A.
Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985)[P1009]: The court
strikes down a discriminatory tax regime, on the ground that "encouraging the
formation of new insurance companies in Alabama" was an impermissible
purpose.
B.
Rational Basis Review: The challenged law will be upheld if it is rationally
related to a legitimate state purpose.
C.
Advantages of the Equal Protection Theory (you fill in)
1. vis a vis the Dormant Commerce Clause
a. Really broad, broader than dormant commerce clause b/c goes
beyond commerce
b.
Congress can't give permission to break this
c.
No market participant exception
2.
vis a vis the Privileges and Immunities
a. corporations can be challenged on this -- throw it in to be a
headache b/c market participant defense doesn't apply
D.
Disadvantages of Equal Protection (you fill in)
1. Rational basis scrutiny; law usually wins but not if there's an improper
purpose
c.

IV.

Preemption and Consent

I.

Congressional Consent to State Laws

A.
General Rule: Congress can generally consent to, validate, and authorize state
laws that would otherwise validate the dormant Commerce Clause (Prudential
Ins. Co. v. Benjamin (1946))
B.
Examples

76

1.

II.

The Wilson Act of 1890 overrode the original package doctrine, which
had barred on dormant commerce grounds state regulation of alcohol if it
was in its original package (Wilkerson v. Rahrer)(1891)
2.
The McCarran Act of 1945 allowed state regulation of the insurance
business that would otherwise violate the dormant Commerce Clause,
such as the discriminatory tax at issue in Prudential.
C.
Rationale: The rationale for this power has something to do with the fact that
the whole source of the dormant Commerce Clause limit is Congresss
unexercised regulatory power, so that this limit is in some sense a matter of
legislative grace
Limits
Congress must speak clearly when it consents to otherwise
unconstitutional state laws. See South-Central Timber Development, Inc.
v. Wunnicke, 467 U.S. 82 (1984).
The consent power is also limited in that it doesnt cover the individual
rights provisions that bar state discrimination against out-of-staters; e.g.
Privileges & Immunities, Equal Protection
Preemption of State Law

Preemption is often about federal deregulation; if federal law regulates more

than state law, everyone follows the federal law

preemption litigation almost always arises when federal floor is lower than the
states want to be, then question whether federal law is just a floor or if it's a
floor and a ceiling

the pro-regulation side is almost always the state, so the anti-regulation people
don't like the state's position

The Importance of Preemption

1.
Preemption is the classic problem of concurrent power; there are no
boundaries keeping state legislation and congressional legislation out of
each other's way
2.
Preemption goes to the heart of Madison's political safeguards of
federalism (Fed. 45 & 46); it directly impacts the States ability to provide
benefits and regulation to their citizens on the things that matter most in
their daily lives
3. Preemption is the single most common constitutional claim; relationship
is set by federal statutes, not by the Constitution, so it's changeable and
arguable; common especially in commercial litigation

Three Kinds of Preemption

1.
Express preemption in the statutory text.
2.
Field preemption: A federal regulatory scheme is so pervasive that we infer
Congress intended no state supplementation.
3. Conflict preemption: Compliance with both federal and state regulations
is a "physical impossibility," or state law "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.

77

a.
b.
c.

III.

Impossibility preemption
Obstacle
Frustration preemption: State law does not conflict directly with a
federal statute, but it would unduly frustrate the purposes of that
statute to permit concurrent state regulation

The Primacy of Congressional Intent: Under modern doctrine, these

different categories are simply aids in answering the fundamental question:
Did Congress intend to preempt state law?

Historical Development
Early Cases: The Court held that federal law was supreme in the event of a
conflict, but did not recognize any doctrine that the existence of federal
legislation precluded the States from passing their own laws, at least
where no conflict occurred.
Late 19th Century: The Court begins to suggest that when Congress
legislates, it ousts the States of their authority in that area. But the cases
are inconsistent and no state laws are actually struck down.
Early 20th Century: The rule in this period is automatic field preemption
whenever Congress acts. Many statutes are struck down during this
period.
The New Deal and After: Beginning in the 1930s, the Court focuses on
whether or not Congress intended to preempt state law; it develops a
"presumption against preemption" which is fairly protective of state law
because, under Wickard, Congress can regulate almost anything, so
presuming preemption from vague statements would override state
sovereignty even more. (Rice v. Santa Fe Elevator Co. (1947))
If they kept the early 20th century rules for automatic field
preemption when Congress acts, would have been huge regulatory
vacuums where states can't act and Congress has only done a little
bit in the area, but states would be preempted; Court wants to make
state and federal regulation can coexist by changing the default rules
Cases
1. Pacific Gas & Electric v. State Energy Comm'n (1983)[P1022]:
a.
Is a characterization game on whether nuclear energy is part of
traditional state control (utilities regulation) or part of nuclear field
that Congress has heavily regulated
b. Invoke the Rice idea that should construe narrowly with the
presumption against preemption b/c this is an area of traditional
state control (utility regulation)
c.
default rule is the presumption against preemption, so even though
this is a close case, when in doubt, construe it more narrowly and let
it stand; California says can't build until there's a safe way to get rid
of the waste; federal gov't says you are allowed; just b/c you're
allowed, doesn't mean you have to build one, can comply with both
2.
Lorillard Tobacco Co. v. Reilly (2001)[P1031]:

78

a.

Can states go further than federal regulation? Is federal regulation

just a floor? Or is it a floor and a ceiling? Court held federal
regulation was the only regulation allowed here
The Presumption Against Preemption: We start with the assumption that
the historic police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Congress. Rice,
331 U.S. at 230.
One question here is whether we read this presumption as applying across
the board, or only in areas of traditional state regulatory authority
(whatever those are). Recent decisions point in both directions on this.
See, e.g., Locke (confining the presumption to areas without a history of
federal regulation).
The presumption is a default rule that has to be overcome by a
congressional statement
In essence, is a clear statement rule and a rule of statutory construction
Presumption's there, but don't necessarily bring it up in the opinion b/c
it's controversial; is debate about whether it's legitimate, but seems pretty
safe to stay
need to know there's generally a presumption and it's treated as
pretty weak and often ignored b/c every statute's different and so
every preemption case is it's own little world in a way that other
types of cases aren't b/c it's statutory interpretation not like Due
Process cases where you're interpreting one clause of constitution
Preemption by Actors other than Congress
Administrative Preemption: "Pre-emption may result not only from action
taken by Congress itself; a federal agency acting within the scope of its
congressionally delegated authority may pre-empt state regulation."
Louisiana PSC v. FCC (1986)
Notes on:

no political protections of federalism without going through

Congress (states represented in Congress and it's hard to get
things through Congress)

it's a lot easier to make federal law through agencies (that's why
they're there)

Courts more hesitant to assume preemption from agencies,

maybe a stronger presumption against preemption (e.g. Solid
Waste v. Army Corp of Engineers)
Two kinds of cases:
Agency interpreting a federal statute and finds that the
statute preempts state law; agency will almost always want to
preempt b/c that gives them more power (Chevron doctrine),
but the Rice presumption says it doesn't preempt if it's
ambiguous; they butt up against each other and the court
hasn't resolved it

79

The statute doesn't preempt, but the agency creates

additional regulations that do; what independent preemptive
authority does the agency law carry? Court hasn't decided
that either (warning -- this could be an exam question)
Federal law is federal law and agency law is federal law and is
supreme and preemptive (that's the black letter); but rulings are
narrower than that and the Court treats that as a live question (Solid
Waste case); don't frame it as a preemption case, but it is b/c Corps
of Engineers is going against a local law by not giving a permit -- that
preempts the local gov'ts land use decision; court says this is such at
the outer limit of Congress' commerce power
DRAWS A LINE b/t agency action and Congress' action
Wrinkle: not all agency action has the independent force of law
either; will issue ruling that "our reading of the underlying federal
statute is"; advising on what they think the statute means, doesn't
have independent force of law (the simple answer)
If a question comes up -- would be asking to explore the
considerations for what the rules ought to be; on one hand, Congress
able to delegate lots of rule-making power, will throw a huge wrench
into operation of federal gov't if say it doesn't have force of
Congressional law; but, if there's a lot of stock in the political
safeguards of federalism and the representation of the states in
Congress; suggests a big difference b/t agencies and Congress and
maybe there should be a line, maybe it should be treated a little
differently
SPECULATE -- no answer yet, but evaluate the underlying
considerations to make it up
Judicial Preemption: Federal courts sometimes make federal common law
in various areas, such as admiralty cases or cases where the U.S. is a party;
this law generally has a have preemptive effect.
Preemption and the Federalist Revival: Although the Rehnquist Court notably
revived a number of constitutional limits on national authority, see, e.g., Lopez;
Printz, it also tended to hold state law preempted in most cases raising the issue.
Moreover, the pro-states conservative justices were more likely to hold state law
preempted than the nationalist liberals, see, e.g., Lorillard.
Limiting Preemption: Some suggestions:
Enforce the presumption against preemption as a rule of statutory
construction.
Enforce the presumption in all cases, not just areas of traditional state
authority.
Limit who can preempt state law i.e., primarily Congress, not federal
courts or administrative agencies

80

Introduction to Separation of Powers

I.

II.

Competing Principles and Approaches

A.
Separated Powers: Government is divided into distinct departments with sharp
boundaries between them -- no mixing.
Formalism emphasizes the idea of separated powers. The key is to classify
whether a governmental entity is exercising legislative, executive, or judicial
power, and strike that power down if it's being exercised by the wrong branch.
Departures from separated powers are confined strictly to those authorized in
the constitutional text itself.

Two Formalist Questions:

1. What sort of power is being exercised legislative, executive, or
judicial?
2. Who is exercising that power? If its the wrong branch, strike it
down.
B.
Checks and Balances: Each branch is given a little involvement in the powers
of the others, as a means of defense against encroachment or usurpation by the
other branches.

Functionalism puts greater emphasis on the idea of checks and balances

is a little messier b/c sometimes the wrong branch will be exercising the
power

emphasize the overall balance of power b/t the branches

critical question is whether a particular governmental arrangement

undermines the independence and core functions of one of the other
branches

judgment depends largely on the particular situation at issue (e.g. line

item veto was good for functionalists)

Three Functionalist Problems:

1. Aggrandizement: A particular measure increases the power of one
branch vis-a-vis the others.
2.
Encroachment: A particular measure decreases the power or
autonomy of one branch vis-a-vis the others.
3. Dilution: Conferring a power or function on one branch renders that
branch less able to do the job its supposed to do.
Underlying Values in Separation of Powers Doctrine
A.
Individual Liberty: Division of authority prevents any one person or
institution from exercising arbitrary power. And requiring concurrence of all
three branches to get anything done minimizes the level of government
regulation generally.
B.
Control of Faction: It's difficult for a single faction to control all three
branches of government. This is part of Federalist No. 51's "double security"
against the tyranny of faction.

81

C.

III.

Efficiency: Division of powers is supposed to promote specialization and

expertise. And it facilitates a strong and independent executive able to respond
rapidly to crises and present a unified front to other nations.
1.
probably doesn't quite work out b/c of the constant checks that keep
anyone from getting anything done
2.
Framers ok with gridlock, gov't wasn't held responsible for as many things
as it is now so there are institutional innovations to improve gov't
function, e.g. administrative agencies -- so, to what extent are we willing
to trade off inefficiency for getting things done?
D.
Declaration of Independence is a big rant vs. executive power, so the
constitutions written soon after had weak executives and super-strong
legislatures
1.
But, legislatures can hurt your rights too, so the Constitution is a reaction
against that as well as the problems of having no executive to conduct
foreign policy, so the Constitution weakened the legislature and created
an executive power
Separation of Powers and the Constitutional Text
A.
U.S. Constitution -1. Overview
1.
not much to go on b/c there's no separation of powers clause in the
Constitution, unclear how workable it was
2.
Madison had proposed a clause, but it was rejected
3. the pure idea of Montesquieu was rejected by Senate
4.
so we're left with the vesting clauses at the beginning of each of the
first three articles -- difference b/t articles I and II -- "herein
granted", specific idea of enumerated powers, big debate about
whether executive is limited in the same way
2.
The Vesting Clauses
Art. I, 1: All legislative Powers herein granted shall be vested in a
Congress of the United States which shall consist of a Senate and
House of Representatives.
Art. II, 1, cl. 1: The executive Power shall be vested in a President of
the United States of America.
Art. III, 1: 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.
The "Take Care" Clause
Art. II, 3: [The President] shall take Care that the Laws be faithfully
executed . . . .
Roads Not Taken
Indiana Constitution, Art. 3, 1: Three departments.
The powers of the Government are divided into three separate
departments; the Legislative, the Executive including the Administrative,
and the Judicial; and no person, charged with official duties under one of

82

these departments, shall exercise any of the functions of another, except

as in this Constitution expressly provided.
2. Madison's Proposed Amendment (rejected by the First Congress)
The powers delegated by this constitution, are appropriated to the
departments to which they are respectively distributed: so that the
legislative department shall never exercise the powers vested in the
executive or judicial; nor the executive exercise the powers vested in the
legislative or judicial; nor the judicial exercise the powers vested in the
legislative or executive departments.

The Steel Seizure Case (Youngstown)

I.

Options Available to the President

1. Wage Stabilization Board Proceedings: Three-way negotiations between the
administration, labor, and management, leading to recommendations on wage
and price increases by the Wage Stabilization Board; but President had no
power to impose a settlement
2.
Taft Hartley Act Injunction: Where a strike imperils national health or safety,
the President can appoint a board of inquiry to report on the underlying facts;
if the report doesnt induce agreement, the Attorney general may seek an
injunction barring a strike for 80 days. At the end of 80 days, the President
reports to Congress with recommendations; would be wildly unpopular with
the unions and Truman was indebted to the unions; actions under this
injunction would have high political costs and benefit factory owners
3. Seizure under the Selective Service Act: When producers fail to fill orders
for goods required by the armed forces, the President may seize the facilities
subject to an obligation to pay compensation; have to wait until orders aren't
filled and you go through your reserves before can use this
4.
Condemnation under the Defense Production Act: The President may
seize property when necessary for national defense, provided that the
Government pays 75% of compensation up front; doesnt want to pay, really
expensive, may have to go to Congress for the appropriation, maybe don't have
that money laying around
5. Grant the industry a price increase: didn't want to do that, inflationary,
harmful to economy
6. Submit the Problem to Congress: maybe Congress too slow, Truman would
say he did that and Congressional silence was acceptance (not true), maybe
concerned Congress would make him use #1-5
7.
Seize the Mills under the Presidents own Executive Power: that's what he
did; didn't like the other options, too many political trade-offs; also probably
wants to establish this as a precedent for executive authority so doesn't want to
go to Congress

83

II.

III.

IV.

Two arguments: Gov't needs to keep the steel supply coming in a way that doesn't
hurt the rest of the economy
1.
Commander-in-Chief Clause: majority says President doesn't have this
power b/c seizure of property isn't a wartime action; this is a labor dispute, not
a wartime dispute

not willing to allow the President this power b/c of the consequences,
you're not Commander-in-Chief of the country but of the military;
"faithfulness to our Constitutional system"

theater of war has to have an end, geographic limitation and "if this is ok,
then what isn't"

also, President doesn't have a monopoly on war powers; Congress has

power to declare war and pay for it (seems like powers over supplies and
that's for Congress)

would be dangerous for a President to expand internal powers by going to

war somewhere
2.
"Take Care" Clause: "take care that the laws be faithfully executed"; power to
enforce the laws, dovetailing with general grant of executive powers in vesting
clause

power grant and requirement/obligation which raises difficult questions

about if the President can choose not to enforce things, may be
contradictory or may be part of his responsibility

majority says that doesn't mean you can make the laws and that's what
seizing the steel mills is, Congress didn't make any law for you to do this,
you're making policy
Justice Jackson's Categories [P1073]
I. Congress Authorizes
Presidential Action

II. Presidential
III. Presidential Action
Action/Congressional Contrary to Congressional
Silence
Directive

Presidential authority is
"at its maximum." Action
can be struck down only if
the federal government as
a whole lacks power.
"Strongest presumption"
in favor of such actions.

"Zone of twilight";
President must rely on
his independent
powers alone. Case by
case inquiry.

Presidential power is "at its

lowest ebb." President can rely
only on his own power minus
whatever power Congress has.
President can act only if
Congress lacks power; his
action must be "scrutinized
with caution."

Other Opinions:
A.
Black (majority): makes a formalist distinction; characterizes the power as
legislative and says the wrong branch is exercising it, so it's unconstitutional

84

B.

V.

VI.

Frankfurter (concurrence): concerned about "the accretion of power"; more

functionalist than Black; judiciary intervenes to determine where the authority
lies in the system; all of the other grants to seize things for necessity have come
from Congress and have been limited in scope and time; authorizing this
seizure would allow a dangerous precedent; President doesn't have this power
and he can't have it if a gov't of limited powers is to survive; will lead to
authoritarian gov't
C.
Douglas (concurrence): emergencies don't create powers; just b/c executive
power has the "appearance of efficiency" doesn't mean it's best; it's autocratic
(or tends to be if unchecked); the language of the Constitution on this is plain,
ALL legislative power goes to Congress; this is a taking and only Congress can
do it; authorizing this would be authorizing tyranny
D.
Dissent: this is enacting other laws approved by Congress (treaty obligations
in NATO and UN require us to supply weapons); there are historical
precedents of other Presidents doing similar things; this is an emergency and
the President should do something about it
Emergency Powers
A.
The Suspension Clause, Art. I., 9: The privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.
B.
Some Presidential Views

Harry Truman: The President "must always act in a national emergency."

William Howard Taft: [T]he President can exercise no power which

cannot be fairly and reasonably traced to some specific grant of power or
justly implied and included within such express grant as proper and
necessary to its exercise. . . . There is no undefined residuum of power
which he can exercise because it seems to him to be in the public
interest.

Theodore Roosevelt: [I]t was not only [the Presidents] right but his duty
to do anything that the needs of the Nation demanded unless such action
was forbidden by the Constitution or by the laws.
C.
Statutory Provision? Some statutes expressly provide additional powers to
the President in certain sorts of pre-defined emergencies. E.g., the
International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701 et
seq.
The Political Safeguards of Presidential Authority: Justice Jackson notes the
gap that exists between the Presidents paper powers and his real powers. The
President has several inherent political advantages:

power of executive branch concentrated in single actor -- capacity for secrecy

and discretion; can act without convincing anyone; is always in session; has
superior sources of intelligence and information

national election makes President the focus of public hopes and expectations
(charismatic authority)

85

power over public opinion through unrivaled access to the public mind
through modern methods of communication leverages into power over other
public officials
head of national political party
Jackson VERY concerned about "slippery slope" towards dictatorship (this is
1952); doesn't want to hamstring the President in an emergency, but doesn't
want to set this precedent either; says there's a trade-off b/t efficiency and
separation of powers

The Nondelegation Doctrine

I.

Overview
A.
Why does Congress delegate its authority?
1. Expertise: Agencies have superior expertise concerning details of policy,
esp. in technical areas (environment, telecommunications)
2.
Flexibility: Delegation allows an agency to adapt the original law to
changed conditions
3. Avoiding Political Costs: Congress can take credit for pursuing the
general goal -- like air quality -- without taking the blame for deciding
whose ox will be gored in reaching that goal
B.
Reasons for the Nondelegation Doctrine
1. Separated Powers: Delegation allows the combination of law-making
and law-enforcing power in the executive branch; this is Congress' power
(Framers didn't anticipate a branch ceding power)
2.
Accountability: Congress shouldnt avoid responsibility for difficult
policy choices by delegating to administrative agencies
3. Predictability: It's easier to predict what the law governing your activity
will be if it's written in a statute, rather than subject to changing agency
interpretations
4.
Cabin Administrative Discretion: Agency officials are not directly
accountable to the people, so its important to cabin their discretion in
order to prevent arbitrary or capricious decisions; agencies might be
unduly influenced by the industries they're regulating
C.
Four Central Ideas
1. The Intelligible Principle Doctrine: Congress can't delegate its
authority without providing an "intelligible principle" that limits agency
discretion (so courts can check to see if they're sticking to that delegation
or exceeding it). Schechter; American Trucking.
2.
Private Delegations: Delegations of lawmaking authority to private
entities is particularly problematic. Carter Coal, Schechter II.
3. Independent Constitutional Authority: Delegations are less
problematic where the executive branch already has a certain degree of
inherent authority over an area. Curtiss-Wright.

86

4.

II.

III.

Delegation and Federalism: Agency lawmaking outside the Art. I

process circumvents both political and procedural safeguards of
federalism.
D.
The Question of Constitutional Desuetude
1. Is there Anything Left?
2.
Was it Lochner? Nondelegation is identified with freedom of contract
(Lochner) as well as restrictive interpretations of the Commerce Clause
(E.C. Knight, Hammer v. Dagenhart).
The Cases (only Schechter and Panama Refining have been struck down for
delegation, both in 1935)
A.
A.L.A. Schechter Poultry Corp. v. United States (1935)[P1090]: The Court
strikes down the National Industrial Recover Act (NIRA), which delegated to
the President authority to set codes of fair competition for various industries
Problem is, not enough guidance for President's discretion and this is a
legislative function
The Court recognizes five sources of constraint on legislative discretion that
might save a delegation to an agency:
1. legal terms of art: if there's a term within the delegation that is
widely recognized within the industry to mean X, then the agency
should confer it to mean X
2. case-by-case adjudication: will eventually flush out the meaning if
not fixed by statute
3. declarations of policy by Congress gives some guidance to the
agency; it's fine to incorporate private information/standards within
the law, but the final decision is made by a government official
4. background rules in other statutes provide something to measure
the delegation against
5. the nature of the industry: maybe in the context of the industry there
are technological constraints
B.
Whitman v. American Trucking Assns (2001)[P1101]: Some American
Trucking might be the Lopez of the delegation doctrine. It wasnt.
Court says agency's limitations on its own exercise of power isn't good
enough b/c that discretion needs to be from Congress.
The Court adheres to the intelligible principle requirement, but finds that
the relevant Clean Air Act provisions provide one.
Meaningful JR remains on whether there's an intelligible principle and
whether the agency is following the delegation from Congress in the
underlying statute
Remaining Limits on Delegation
A.
Intelligible Principle: The intelligible principles requirement remains good
law, although it is often applied quite leniently.
B.
Statutory Construction: Courts may still construe statutory delegations
narrowly in order to avoid a nondelegation question.

87

C.

D.

Scope of Delegations: The broader a delegation is argued to be, the more

clear Congress has to be in granting that broad authority. Ambiguous
delegations are construed narrowly.

Delegations Impinging on Constitutional Values: Where an agency asserts

delegated authority to act in a way that impinges on some other
constitutional principlean individual right like free speech, or a
structural value like federalismthen the courts will tend to construe the
delegation narrowly. See, e.g., Solid Waste.
Congressional Oversight of Agency Action: Congress has many mechanisms
to control what agencies do with their broad delegated authority (aside from
providing the original intelligible principle):

Legislative Vetoes: Congress can nullify legislative action after the fact
(struck down in Chadha, but survives in practice).

Oversight Hearings: Congress can call executive officials before it to

explain their actions publicly.

Confirmation of Officers: Congress can often exercise a check and extract

concessions when confirming nominees to executive departments.

Budgetary Controls: Congress can use control of funding for agencies to

control agency action.
Judicial Review of Agency Action: The abandonment of constitutional limits
on delegation has been offset by the rapid growth of judicial review of agency
action for conformity to statutory purposes. Most of this review takes place
under the Administrative Procedure Act (APA) and is the subject matter of the
course in Administrative Law (which everyone should take).

Substantive Review of Legal Questions: Courts review whether actions

taken and regulations issued are consistent with the terms of the
underlying statutes delegating authority to the agency

Substantive Review of Fact & Policy Questions: Courts conduct very

deferential review of such questions under the arbitrary and capricious
standard

Procedural Review: Courts also review whether agency decision-making

satisfies procedural requirements in the APA, such as public notice and
comment for certain forms of rulemaking
An important limit on judicial review of agency action:
The Chevron Doctrine: If a statute is ambiguous, then a court will defer
to an interpretation offered by the agency tasked with enforcing that
statute so long as the agencys interpretation is reasonable
Note: main checks on agencies come from the Administrative Procedures
Act, which includes substantive review of the laws, of agency's treatment of
facts and policies (deferential to expertise), and procedural review of rights for
groups most affected by the agency (courts are aggressive about the last
one)(see notes)
Can rationalize this stuff by saying what stuff are courts good at solving or
better at solving than agencies? In fact and policy, they defer, in procedure and

88

law, judges are comfortable with that -- comparative institutional competence

decides the amount of deference the courts give

Altering the Lawmaking Process

I.

II.

Overview of Separation of Power Claims

A.
"Mixing" Claims: claims that one branch is improperly exercising powers that
belong to a different branch (e.g., delegation)
B.
"Same Branch Limits" or Chadha Claims: claims that a branch has sought to
evade the constitutional limits on its own actions
C.
"Aggrandizement" "Encroachment," or "Dilution" Claims: the functionalist
concerns -- has something upset the balance of power among the branches
D.
Appointments Clause or Unitary Executive Claims: questions revolve
around who can appoint an officer and whether he is subject to removal by the
President
INS v. Chadha (1983)[P1117]
A.
Overview
1.
Delegation as the erosion of Federalist 51, which expected branches to be
jealous of their power
2.
Court doesn't care how useful this is b/c it's contrary to the constitution;
"convenience and efficiency are not the hallmarks of democratic
government"; Framers worked this stuff out in explicit detail, so we ought
to adhere to it
3. Congress does all sorts of things on their own, but not things that affect
the rights and obligations of people outside of Congress, those things
must overcome the hurdles of passing legislation
4.
Holding is: when Congress acts, it has to act through the Article I, section
7 process; so who's acting is more important than what action they're
taking (functionalist perspective); formalist would say b/c it's legislative
power it has to go through the process (if judicial or exec power, wrong
branch)
a. hard to characterize types of power -- in this case there are plausible
arguments that this power is executive, legislative, and judicial
b. "reasonable minds may disagree over the character of an actthe
more helpful inquiryis whether the act in question raises the
dangers the Framers sought to avoid" (Powell)
5. Powell's dissent says it seems like a judicial thing, like a bill of attainder,
b/c they're deciding on an individual case; Congress is acting like a court
hearing an appeal from Chada's deportation case; would only negate
legislative vetoes against adjudicative decisions, more narrow than
majority opinion

89

6.

III.

Functionalists are more concerned with maintaining the overall balance

of power; they would say, Law of "compensating adjustments" -- 2 wrongs
make a right:
a.
Delegation: probably unconstitutional
b. Legislative veto: enhances Congress' role in lawmaking and better
than just giving lots of lawmaking authority away to agencies
without maintaining oversight
B.
Two Article I Requirements
Bicameralism -- Art. I, 1 provides that legislative power is vested in a
Senate and a House of Representatives
Presentment -- Art. I, 7 provides that every bill passing Congress shall be
presented to the president, and must be approved by him before taking
effect (unless the veto is overridden)
Reach of the Decision: After Chadha, the Court could have limited the reach of
the decision by drawing three possible lines, but it didn't:
1. agency adjudications vs. rulemaking (see Powell, dissenting)
2.
dependent/independent agencies
3. committee or one-house vetoes vs. two-house vetoes
See Process Gas Consumers Group v. Consumers Energy Council (1983);
U.S. Senate v. FTC (1983) (applying Chadha to strike down two-house
vetoes of independent agency rulemaking).
D. Alternative Mechanisms
1. Report and Wait: Congress can require that rules be submitted to
Congress and become effective only after a period of, say, 60 days. This
would give Congress time to pass a statutory restriction if it really wanted
to (burden of inertia to change rules)
2. Sunset Provisions: Congress can provide that agency authority lapses after
a few years, requiring renewal through a new statute (burden of inertia to
renew)
3. Joint Resolutions: Congress can provide that agency action becomes
effective only if approved by both Houses of Congress through a joint
resolution, which can be vetoed by the President.
4. Informal Agreements: Congress can refuse to grant agency authority to act
unless the agency informally agrees not to do certain things without the
approval of, say, its supervising committee; Courts can't enforce this, but
Congress can enforce through budgets.
5. Appropriations Rules: Congress can provide, by internal rule, that
appropriations for a particular action will not be approved by the
appropriations committee without a resolution by the authorizing
committee approving the action.
Clinton v. New York (1998)[P1138]
A.
How the Line-Item Veto Works: The Line Item Veto Act of 1996 authorized
the President to cancel:
1.
new spending or

90

2.

any limited tax benefit

Cancellation prevents the item "from having legal force or effect"

The President must determine that each cancellation will
1. reduce the Federal budget deficit
2. not impair any essential Government functions; and
3. not harm the national interest.
Congress may enact a "disapproval bill" by majority vote, subject to a
Presidential veto.
B. Four (Arguably) Distinct Claims
1. Article I (Chadha claim): violates presentment clause, can you change the
lawmaking process without changing the Constitution?
a. maybe the big difference is deliberation, how many times you have
to vote to give the President this power? Question of burden of
inertia to put in cancellation provision (unlikely you will put it into
every bill, have to keep coming back to the question)
b. Line-item veto hard to repeal b/c president would veto, seems like a
bigger change then
2. Delegation: the President's got too much discretion here; no intelligible
principle directing his actions
3.Encroachment: allowing the President to disaggregate gets rid of the "take
it or leave it" idea; lots of pork won't survive, the appropriations bill would
be significantly cut; impossible to veto an appropriations bill without the
line item veto b/c you vetoed body armor for the troops in Iraq (political
costs)
C. Justice Breyers Hypothetical: Whats the difference between these three
cases?
Case 1: 101. Hospitals meeting certain qualifications in New York shall be
exempt from federal taxes. The President may prevent this provision from
having legal force or effect if he determines that so doing will (i) reduce
the federal budget deficit; (ii) not impair any essential government
functions; and (iii) not harm the national interest.
Case 2: 101. Hospitals meeting certain qualifications in New York shall be
exempt from federal taxes.*
102. Gas stations selling ethanol shall receive a federal tax credit on all
such sales.*
103. The federal government shall spend $50 million to build a new dam
in Idaho.*
* The President may prevent this provision from having legal force or effect if he determines
that so doing will (i) reduce the federal budget deficit; (ii) not impair any essential government
functions; and (iii) not harm the national interest.

Case 3: 1996 Statute: The President may prevent any tax or spending
provision in a federal law from having legal force or effect if he determines
that so doing will (i) reduce the federal budget deficit; (ii) not impair any
essential government functions; and (iii) not harm the national interest.

91

1999 Statute: Hospitals meeting certain qualifications in New York are

exempt from federal taxes

Appointment, Removal, and the Unitary

Executive
I.

II.

The Unitary Executive Debate

A.
Two Versions
1. The Strong Unitary Position: President has unlimited power over the
execution of administrative functions. All officers with such functions
must be subject to Presidential overruling or removal at the President's
discretion.
2.
The Weak Position: President has plenary power over some, but not all,
functions exercised by the executive branch. Over the rest, Congress has
broad authority to structure the government the way it wants.
B.
Values of Unitariness
1. Efficiency: Framers wanted a strong President in order to enable quick
responses to crises and vigorous enforcement of the laws.
2.
Accountability: Unitariness centralizes accountability in one person.
"The buck stops" with the President. This makes it easy for the People to
hold someone accountable when they don't like what government is
doing.
Appointments
A.
The Appointments Clause, Art. II, 2, cl. 2: "[The President] shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by Law: but the
Congress may be Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments."
B.
Principal and Inferior Officers
1. Morrison majority: Principal/inferior status determined by multifaceted
look at the character of the office; President appoints "principal" officers,
Congress can vest the appointment of "inferior" officers in head of
department or someone else; majority says this is an inferior officer, tries
to look at the totality of the power of the office:
a.
Can be removed by someone else (Atty. General)
b. Limited duties; discretion is deep, but narrow -- only one case, only
one investigation
c.
Limited tenure of office

92

2.

III.

IV.

Scalia dissent: One cannot be an inferior officer unless one has a

superior. Scalia disagrees with the "mushy" test, wants a more bright-line
test; if you have no superior officer, you are a principal officer; is she
subordinate to the Atty. General? Yes, but not within the job; firing is
limited and has all of the power of an Atty. General for this case
C.
Inter-branch Appointments: No general prohibition on vesting power to
appoint an officer of one branch in another branch, but the particular office to
which the appointment is to be made must not be incongruous with the
function of the appointing branch. Only applies to "inferior" officers.
Presidential Removal
A.
The Law pre-Morrison
1. Myers v. United States (1926): The Court strikes down a statute
providing that postmasters could be removed only with the advice and
consent of the Senate. Congress has no power to limit the President's
removal power.
2.
Humphrey's Executor v. United States (1935): The Court upholds a
statute providing that members of the Federal Trade Commission could
be removed for "inefficiency, neglect of duty, or malfeasance." Myers
doesn't apply to officials of independent agencies with quasi-legislative
or quasi-judicial functions, like the FTC.
B.
Morrison: Court shifts from focus on the functions performed by the officer to
a more general consideration of the effect of a removal restriction on executive
power. [T]he real question is whether the removal restrictions are of such a
nature that they impede the President's ability to perform his constitutional
duty, and the functions of the officials in question must be analyzed in that
light.
Classic unitary executive argument: President has to be able to control
every executive officer (everyone not a legislator or a judge)
majority says as long as President can remove him, he's still in control of
executive; think of appointment and removal powers as most important
b/c if you have either of those powers, you can control their actions while
in office (removal power is the most often cited as the key)
justification is democratic accountability; problem is, if you give the
President the right to control this official, can't investigate the President
(like Nixon fired the independent counsel during Watergate)
The Independent Counsel: Morrison v. Olson (1988)[P1161]

Ethics in Gov't Act (1978): not long after Watergate; allows investigation of
high-level officials for criminal offenses; requires Atty. General to initiate
investigation, in 90 days, report to Special Division (panel of judges) to see if
there's a reason to go through further

if there is, then Special Division has to appoint independent counsel; can only
be fired by Atty. General or impeached by Congress, Special Division can
terminate if independent counsel's finished

Five Issues (3 & 4 overlap considerably)

93

1.

Appointments: Does the appointment of the independent counsel by the

Special Division, rather than the President, violate the appointments
clause?
2.
Inter-branch Appointments: Can Congress delegate the power to
appoint the independent counsel to the judicial branch?
3. Removal: Can Congress restrict the Presidents power to remove the
independent counsel under Humphreys and Myers? (e.g. remove only by
Atty. General for good cause, not at discretion of President)
4.
Unitary Executive: Can Congress empower an officer to exercise an
executive function without placing him under the sole control of the
President?
5. Encroachment: Does the independence of the independent counsel
violate more general separation of powers principles? Does it alter the
balance of power b/t Congress and the President?
a.
More functionalist question: overlaps are supposed to keep balance
better, don't want to mess up balance of powers b/t branches
b. reject bright line "inferior" officer test that Scalia likes, look at
totality of importance of office; allows take into consideration lots of
relevant things; someone exercising executive power doesn't have to
be subject to President (reject the quasi-judicial/quasi-legislative
parts of the old test) and adopt full-scale functionalist test

Institutional Alternatives to the Independent Counsel

No Statute: After all, we got an independent counsel in Watergate without
a statute.
Resource Limitation: The classic problem that limits prosecutions, lack of
money to pursue everything; would keep down the politically-motivated
prosecutions (control them, not an alternative)
Congressional Investigation: Congressional committees can investigate
anyone they like, including the President. Such investigations were
launched concerning both Whitewater and the Campaign Finance
scandal.
Civil Service: Prof. Tom Merrill at Columbia has proposed that
independent counsel-type investigations should be conducted by a special
division of the Justice Department composed of only civil service people -no political appointees. The office would have a limited budget, so it
would have to set priorities. And it would be subject to supervision by the
Attorney General, except that she would recuse herself if she, the
President, or the Vice-President were being investigated.
Why SCT so functionalist here when formalist in INS v. Chada and Clinton v.
NY?
To some extent, it's independent of the result, but there is a bias built into
functionalism towards upholding innovations b/c balance takes into
account the need for governmental change and will be weighed against
the abstract, systemic values that don't seem as immediate

94

formalist analyses probably bias towards striking things down b/c don't
consider present needs
no one knows the answer to why formalist sometimes and why
functionalist other times
best answer is, most formalist when thinking about the processes of
making law b/c Constitution is most detailed here; there's real law, we
should follow it; a lot of judges will be formalist when they're given formal
laws to work with; the more text to work with, the more of a textualist
you'll be, the less text, the more balancing

Presidential Powers in Foreign Affairs

I.

Missing Powers in the Constitutions Treatment of Foreign Affairs

1.
recognition of foreign governments
2.
setting up consulates and maintaining the whole apparatus of foreign policy
3. establishment of doctrines to guide U.S. foreign and defense policy
4.
termination of treaties, as opposed to making them
5. a lot of powers to deal with immigration
Two problems: nature of federal power over foreign affairs and which branch
exercises it
Some can be inferred, some could be statutory or necessary and proper for
Congress
II.
Three Theories of Presidential Powers
A.
The Vesting Clause Theory: [T]he Executive Power of the nation is vested
in the President, subject only to the exceptions and qualifications which are
expressed in the instrument. We should not consider this enumeration of
particular authorities [in Art. II] as derogating from the more comprehensive
grant contained in the general clause. Pacificus No. 1 (Alexander Hamilton).

See also Prakash & Ramsey, The Executive Power over Foreign Affairs
(2001)[P1221] ([T]he Presidents executive foreign affairs power is residual,
encompassing only those executive foreign affairs powers not allocated
elsewhere by the Constitutions test. The Constitutions allocation of
specific foreign affairs powers or roles to Congress or the Senate are
properly read as assignments away from the President.).
B.
Inherent Powers: Are executive powers not enumerated but traditional within
the realm of executive powers: The investment of the federal government with
the powers of external sovereignty did not depend upon the affirmative grants
of the Constitution. And in exercising these powers, the President has plenary
and exclusive power . . . as the sole organ of the federal government in the field
of international relations. United States v. Curtiss-Wright Export Corp., 299
U.S. 304 (1936).
C.
Delegated Powers: Presidential powers are not fixed but fluctuate,
depending upon their disjunction or conjunction with those of Congress.

95

III.

IV.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J.,
concurring); see also Dames & Moore v. Regan, 453 U.S. 654 (1981).
Powers Inherent in Sovereignty
A.
Two Aspects of Sovereignty

Internal Sovereignty: Who has the ultimate power in a political system?

Whos not accountable to anyone else? See, e.g., Jean Bodin, The Six Books
of the Commonwealth (1606 trans.) (defining sovereignty as the absolute
and supreme power of a republic).

External Sovereignty: The right of nations to be free from external

interference in their internal affairs.
B.
Two Strands in the External Affairs Cases

The Ordinary Rules Apply: The U.S. remains a government of limited and
enumerated powers, even in situations involving foreign affairs.

Powers Inherent in Sovereignty: All nations have the powers necessary to

preserve themselves and operate as a member of the community of
nations. These powers are either implicit in the Constitution itself, or
extra-constitutional in the sense that they would exist even without a
written constitution.
C.
Three Elements of the Inherent Powers Doctrine

An extra-constitutional source of government authority, derived from

notions of sovereignty in international law;

A relative lack of substantive constitutional constraint on the exercise of

those powers; and

Very limited judicial review of the Governments exercise of those

inherent powers.
D.
Roots

Legal precedent provided by cases on Indians, immigrants, and governing

the Territories; in each area, Court had held that ordinary constitutional
rules dont applied.

Based in part on view that various sorts of outsiders Indians, Asian

immigrants and inhabitants of Puerto Rico and the Philippines arent
worthy of the same constitutional protections.

Based also in part on need for the U.S. to have the same powers as other
world powers e.g., Britain, Germany, etc. organized on more
authoritarian lines.
The Cases
A.
George Washington and the Neutrality Controversy (French Revolution)
1.
French treaties oblige us to do certain things after the French helped us
out in American Revolution, so do the treaties with England; French
ambassador tries to raise American volunteers to help attack English
allies' colonies (e.g. Florida); Washington worried about US getting
trampled in war
2.
Washington issues proclamation to make it a federal crime to aid either
side

96

3.

B.

Madison and Hamilton write pieces in favor of each side: Hamilton is

Pacificus, Madison is Helvetius;

Hamilton's argument says it's an inherently executive function

vesting clause not limited to what's enumerated in Constitution as

Congress is; vesting clause is different ("herein granted" for
Congress, "all executive power" for President)

only certain executive powers were granted specifically to Congress

(e.g. power to declare war); there are enumerated powers in Article II
b/c some of the stuff might seem to go with the grants to Congress
(e.g. commander-in-chief power might seem to be included in power
to declare war)
4. Most important argument: it's the President's job to keep the peace til war
is declared [P1199]; best located in the Take Care clause, trying to preserve
the peace by adhering to the treaty commitments and to do that, he has to
interpret what those treaties oblige him to do and the neutrality
proclamation is part of doing that (though not exclusively executive as
Hamilton argues)
5. Does he have the right to declare he's going to prosecute violators of the
neutrality declaration? Without that, it's just articulating an
interpretation of these treaties so people know what to do; ok to say iIf
you violate the neutrality laws and wind up in French prison, you're on
your own -- is just an announcement of the potential US position in that
situation

but, making the violation of the treaties a crime is a problem if it

wasnt a crime before, that would be making law (may have been a
law already)
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)[P1200]
1. Challenge is a delegation claim; that there's no intelligible principle in
Congress' delegation of the arms embargo determination to the President;
Court says they don't have to decide that
2.
Justice Sutherlands Argument

Limited and enumerated powers applies only to internal affairs,

where the point of the Constitution was to carve federal powers out
of the preexisting legislative powers possessed by the States.

The States never had their own international powers, so the external
powers of the federal government came not from the States but from
Great Britain, which had previously exercised all powers of external
sovereignty.

The result is that federal power over external affairs, e.g., "the powers
to declare and wage war, to conclude peace, to make treaties, to
maintain diplomatic relations with other sovereignties, if they had
never been mentioned in the Constitution, would have vested in the
federal government as necessary concomitants of nationality."

97

C.

D.

Is a power-grab for federal gov't, but no one's arguing for the

states

only a small part of his opinion is about why it should be the

President's to exercise; becomes a very practical argument then
-- can act quickly, in secret, doesn't have to convince anyone,
always in session, decide more easily (that's the most influential
part of the opinion)

foreign affairs powers come from sovereignty from being a

nation, so not subject to Constitutional limits (e.g. delegation
doctrine)

so limitations are different; has big effects on other areas, e.g.

argument that immigration not subject to Bill of Rights
limitations

but does solve the dilemma of where the foreign affairs power
comes from
3. The Argument for Executive Authority

History/Theory: The President was intended to be the nations sole

organ in foreign affairs.

Functional: The President has certain institutional advantages that

are particularly important in foreign affairs situations.
Modern version of Hamilton's argument:
1.
Executive power in vesting clause includes things traditionally executive
(e.g. foreign affairs)
2.
Power is residual, encompasses everything not given to Congress in text
3. Doesn't include things that aren't executive in 18th century
4.
Congress has the enumerated powers and the Necessary and Proper
authority to delegate more to the President (current debate on whether
Congress can regulate this or not)
5. Criticism of this argument (Bradley):

That's not usually how the Constitution works

Hard to define what's executive in nature and this theory makes that
characterization necessary; that's not usually how the Framers did
things
Dames & Moore v. Regan (1981)[P1207]: Court upholds President Carters and
Reagans decision to cancel American attachments of Iranian assets and
suspend suits against Iran. Says it's basically consistent with what Congress
would have wanted, even though it wasnt directly authorized by statute.
A majority adopts Justice Jacksons framework from Youngstown.
Justice Rehnquist suggests that the framework is a continuum rather than
three discrete boxes.
A similar statutory background to Youngstown e.g., Congress has
authorized A, B & C but not D is held to invite independent executive
action.

98

Hostage Act doesn't allow suspension of lawsuits; here it seems pretty

obvious that Congress would authorize this action if it had anticipated the
situation (seem to be trying to get out of the way)
seems pretty broad and empowering, not like the seizure statutes before
Youngstown that were more suspicious of presidential power
Should the claims tribunal matter? Court's okay with it at least partly b/c
Dames & Moore has another place to take their claim; it's a reminder that
separation of powers is made to protect individual rights so it's relevant that
they're not getting screwed over
At the end of the day, these cases are about statutory construction and deciding
how to read it, deciding if the President is acting consistent with the statute or not

The Authority to Use Military Force

Always remember *** what the rule should be is always different from whether a
court should enforce it ***
I.

Background
A.
Two Sets of Issues
1. Congress vs. the President

no general war power just like there's not general foreign affairs
power; most of the powers are given to Congress
2.
War and Individual Rights

often civil liberties cases will come in the guise of separation of

powers cases, doesn't say the gov't can't suspend civil liberties, but
has to go through Congress
B.
Powers granted to Congress
to declare War
to grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water
to raise and support Armies
to provide and maintain a Navy
to make Rules for the Government and Regulation of the land and naval
Forces.
to provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions
to provide for organizing, arming, and disciplining, the Militia
Power granted to the President:
The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into the
actual Service of the United States.
Powers expressly prohibited to the States:
To engage in war (unless invaded or in imminent danger); and
To keep troops or ships of war during peacetime.

99

II.

The Early Debates

Much distrust of the Executive; War is in fact the true nurse of executive
aggrandizement. (Madison, Helvetius essay); "emergency powers beget
emergencies"
Strong evidence that the Founders dont want the President to be able to
start a war
Widespread agreement that the President needs to be solely in charge of
conducting military operations; strongest argument for unitary executive
The Power to Initiate Military Action
A.
The Congress Camp: The history makes clear that the Founders didnt want
to be able to commit troops without congressional authorization, outside a
very narrow exception for responding to sudden attacks.
B.
The Executive Camp: Either (1) the power to declare war was intended to be
very narrow, so that its only consequences was to trigger certain legal
conditions incident to wartime; or (2) we just shouldnt be originalists on this
because the world has changed.
C.
Middle Ground (Ramsey): Congress must authorize any action that explicitly
or by action initiates a state of war with another nation. But the President may:

Take military actions short of creating a state of war;

Respond to an attack that initiates a state of war and prosecute the war to
its conclusion; and

Take actions, like deploying troops or severing diplomatic relations, that

are likely to provoke an attack.
D.
Historical Practice
Only 5 declarations of war by Congress:

the War of 1812

the Mexican-American War of 1846-48
the Spanish-American War of 1898

World War I
World War II

One study counts 234 uses of force. Some of these were authorized by Congress
without a declaration of war:

III.

Barbary Pirates
(1802)
Civil War (1861)

Gulf of Tonkin Resolution (1964)

E. Kuwait and Iraq

George Bush Sr: I didnt have to get permission from some old goat in the
United States Congress to kick Saddam Hussein out of Kuwait.
But the President sought and received congressional authorization for both
Iraq wars.
Politically safer (can share the political costs); also more useful in
negotiations if have domestic support
The President vs. Congress
A.
Three Questions

100

1.

What war powers does the President have notwithstanding Congressional

action?
2.
In the absence of congressional authorization, does the President have
power to initiate conflict?
3. What is the nature of the Presidents power to repel sudden attacks?
B.
The Basic Principle of Youngstown: Presidential power is, at least in part, a
function of congressional action or inaction.
C.
Little v. Barreme, 6 U.S. 170 (1804)[P1225]
Allowed to seize ships headed to French ports, but not headed back from
the French ports, does that prohibit seizure of things heading back from
French ports? Not specifically; Youngstown-type problem; by authorizing
x, did they mean to prohibit y?
Two questions:
1. Do the instructions make the seizure legal?
2. Should Captain Little have to foot the bill when he was just following
orders?
President can't order something that's not in the statute (wrong
Jackson box)
war powers are like all of the other powers; Congress can regulate
the President in this too; could be a special area carved out for
Congress in constitution ("rules for high seas"); is precedent for
President being subject to Congressional regulation in war powers
Marshall constrained by what the other justices wanted him to do,
forced him to change mind; at first, Marshall thought shouldn't have
to pay damage b/c he was acting under orders and he shouldn't be
encouraged to disregard orders by fearing responsibility for damages;
concerned that if hold them liable too often, they won't do their jobs
(concern on the other side is if you don't hold them liable, the
following orders defense will be too easy and should have known it
was illegal and shouldn't do it) forces you to ask if your orders are
illegal before you carry them out
Modern protections for federal officers:
1. For tort claims the Federal Tort Claims Act provides that if an officer is
acting within the scope of his duties, then the U.S. is automatically
substituted as the defendant and pays any award.
2. For other sorts of claims, the officer will have qualified immunity, which
means that hes only liable if the law he was violating was clearly
established.
D. Starting a War vs. Repelling Attacks
1. The Argument for Presidential Power: Article I grants Congress the
power to declare war. That suggests that all other military powers
including the power to initiate hostilities by means other than formal
announcement remain with the President as residual powers.

101

2. Presidential Provocations The Mexican-American War: During a

border dispute with Mexico, President Polk moves U.S. troops into
disputed territory on the north bank of the Rio Grande. Ensuing incidents
include incursions by Mexican troops into territory claimed by the U.S.,
which Polk then states to be a casus belli.
Two separate questions:
1. Were the initial actions taken by President Polk constitutional
if he knew that they would provoke hostilities?
2. Once hostilities had begun, was the President limited to
defending against Mexican incursions until he obtained
congressional authorization for offensive operations?
3.Repelling Sudden Attacks A Possible Rationale: When the nation is
attacked, the attack by another nation creates the state of war that
triggers the Presidents commander in chief power; there is thus no
question whether the President or Congress can initiate hostilities, as they
have already been initiated.
4. Attacks on the Country The Prize Cases (1863)[P1227]: The Court
upholds President Lincolns authority to blockade the Confederacy,
notwithstanding only retroactive authorization by Congress. If a war be
made by invasion of a foreign nation [or States organized in rebellion], the
President is not only authorized but bound to resist force by force. He
does not initiate the war, but is bound to accept the challenge without
waiting for any special legislative authority.
but not all rebellions are wars, lots of them are disorganized and not
every instance of insurrection is a war; who decides whether this
insurrection is big enough to be a war? Which political branch
decides that? Is this the same as declaring war by Congress?
Nelson's dissent is saying there's no real war b/c it wasn't declared
like what's required for international law to legitimate a blockade
and the real question is whether neutral parties have to honor the
blockade if it's not a formal war
5. U.S. Citizens Abroad Durand v. Hollins (C.C.S.D.N.Y. 1860)[P1235]:
Does the same authority to defend the nation extend to U.S. citizens
residing in other countries?
6. Preemptive War: Does the Presidents authority to defend the nation
extend to preempting threats before the country is attacked? See, e.g.,
National Security Strategy of the United States (asserting right to preempt
threats to the U.S. involving weapons of mass destruction)
blurs distinction b/t foreign and domestic threats
raises problem of preemption b/c can't allow the attack to occur in
the first place; important to know whether it's legal or not -- big
component of public opinion, idea that he's done something
unconstitutional is bad in and of itself -- it was unconstitutional and
that's how you know it was wrong (wasn't important in Clinton's

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IV.

bombing of Kosovo, but is often important to other presidential

actions); are lots of important considerations to presidential
decisions and knowing the constitutional rule is important
The War Powers Resolution, 50 U.S.C. 1541-1548 (1973)[P1246]
A.
Overview
1. unclear where the war powers of Congress are starting and those of
executive start; this law tries to clarify and define executive's war powers
and what they keep for themselves; THIS IS CONGRESS INTERPRETING
THE CONSTITUTION VIA STATUTE
2. maybe extends authority b/c it seems like president can do anything for
60 days; all of the dissent's reasons in Youngstown were reasons for this
authorization (prudential reasons why president better in crisis/war);
maybe could have more tailored authorizations (if there's a bomb in Iran,
you can get rid of it); harder with more broad authorization, maybe even
delegation
B.
Limitation of Commander in Chief Power: 1541(c) purports to limit the
President's exercise of his Commander in Chief powers to three situations:
1.
a declaration of war;
2.
specific statutory authorization; or
3. a national emergency created by attack upon the United States, its
territories or possessions, or its armed forces.

Note that this section is generally agreed simply to be a statement of

Congress's view, not a provision having binding legal force
C.
Consultation Requirement: 1542 requires the President to consult with
Congress, if possible before introduction of U.S. forces and regularly thereafter
until they are removed
D.
Reporting Requirement: 1543 contemplates three reporting situations:

1543(a)(1) forces are introduced into hostilities or imminent involvement

in hostilities is clearly indicated.

1543(a)(2) forces are introduced into foreign territories equipped for

combat.

1543(a)(3) forces are introduced in numbers that "substantially enlarge"

forces equipped for combat already located in a foreign nation.

1544's clock starts running only when the President makes a report to
Congress under 1543(a)(1).
The President must report within 48 hours of his action. The report must state
the circumstances necessitating the introduction of U.S. forces;
the constitutional and legislative authority under which it occurred;
the estimated scope and duration of hostilities; and
"such other information as the Congress may request"
E. The Clock Provision: A report under 1543(a)(1) starts a 60 day clock. At the
end of that period, Congress must terminate the use of U.S. forces unless
Congress:
1. declares war or specifically authorizes the use of U.S. forces;

103

F.

G.

H.

I.

2.extends by law the 60 day period; or

3. is physically unable to meet as a result of an armed attack upon the U.S.
Objective Trigger: The clock also starts if a report "is required to be
submitted" under 1543(a)(1).
Extension: The President can extend the period by an additional 30 days if
he determines and certifies to Congress in writing that "unavoidable
military necessity respecting the safety of United States Armed Forces"
requires continuing use of those forces to effect a safe withdrawal.
Congressional Removal Order: Despite the clock, 1544(c) provides that at
any time Congress can order the President to remove U.S. forces by concurrent
resolution, which does not require Presidential approval.
Problem -- it doesn't go far enough, Congress doesn't enforce its will
enough
Guides to Interpretation: 1547 provides that
authorization for military action in a law or treaty must specifically mention
the WPR;
the WPR extends to use of forces as advisors to foreign forces; and
the WPR is not intended to alter anyone's constitutional powers.
Enforcement Issues
Can a court enforce the Resolutions provision for withdrawal after the
running of the clock?
Can an authorization for the use of force be so broad as to violate the
delegation doctrine?
Uses of force without authorization that doesn't comply with war powers -Kosovo -- not a successful statute; also doesn't help with Iraq b/c was
initially authorized, but doesn't say anything about when to say we lost,
etc -- other options:
1. can refuse to appropriate more money -- guaranteed to hurt the
people that vote for it b/c it's unpopular, hard to use
2. maybe a simple statute requiring withdrawal from Iraq, would have
to pass over a veto, but is plausible; could Congress do that?
Uncertain b/c most presidential powers are subject to congressional
regulation (Youngstown); president can act until Congress says he
has to do something, or is it exclusive powers for the president?
Uncertain
Nixon's veto of WPR [P1250]
1. narrow issue of legislative veto -- unlikely that Congress could order
President to withdraw the troops before the 60 days
2.Broader constitutional case -- unconstitutionally restricts president's war
powers
a. If president can make war without a formal declaration then the
entire thing is unconstitutional (not plausible)

104

b. If take Ramsey's version, then might limit president's power to

respond to attacks, limits peacekeeping deployments, limits other
deployments that aren't otherwise limited
c. If Durand is right and President can intervene to protect us citizens
and property abroad, this would limit it too much
d. Also expands presidential powers b/c allows him to do anything for
60 days
3. Policy standpoint: may create or prolong a crisis b/c enemy would hold out
for 60 days and win; might get a better deal from Congress; might escalate
the crisis b/c have to win fast which might require nukes; might interfere
with treaty obligations, e.g. long-term deployment of peacekeepers

Presidential Powers Incident to War

I.

Suspending the Writ of Habeas Corpus

A. Habeas Basics

Habeas corpus literally produce the body is an English common

law writ designed to test the legality of detention (way to get JR of
executive detention)

The original habeas provision in the 1789 Judiciary Act covered only
prisoners held under the authority of the United States. State prisoners
are covered beginning in 1867 at the height of Reconstruction.

A petition for habeas corpus is a civil suit by the prisoner (the petitioner)
against the government official who is holding him in custody (the
respondent).

Most habeas petitions are collateral attacks on the original conviction,

not an appeal from the first courts judgment.

The original purpose, however, was primarily to challenge executive

detention that was not pursuant to trial and conviction in a court.
B.
The Suspension Clause, Art. I, 9, cl. 2: The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.
C.
President Lincolns Suspension Order: On April 27, 1861, Lincoln authorizes
General Winfield Scott to suspend the writ of habeas corpus if necessary to
protect the rail lines through Baltimore being used to bring Union troops to
reinforce Washington, D.C.
D.
Ex Parte Merryman, 17 F. Cas. 144 (No. 9,487) (C.C.D. Md. 1861) (Taney,
J.)[P1260]: Chief Justice Taney, sitting on circuit, issues a writ of habeas corpus
requiring government to justify the imprisonment of John Merryman, who had
been imprisoned for supporting the rebellion. Taney held that the suspension
power belongs to Congress, not the President; makes a placement argument
from the text, but could make a larger separation of powers argument from
greater political accountability.

105

II.

Lincoln ignored Taneys order and continued suspending the writ in

various areas without statutory authorization. Finally, in 1863, Congress
formally suspended the writ by statute.

Lincoln thought about having Taney locked up for it; Lincoln appealed to
emergency powers and his ability to enforce all other laws; also appealed
to the powers inherent in sovereignty argument, grounded in being a
sovereign state and that's not subject to a constitutional check (Taney
says only enumerated powers, there are no inherent powers)
Military Commissions
A.
One Academic View: It is a bedrock principle of our constitutional system
that the body that defines what conduct to outlaw, the body that prosecutes
violators, and the body that adjudicates guilt and dispenses punishment should
be three distinct entities. To fuse those three functions under one mans
ultimate rule, and to administer the resulting simulacrum of justice in a system
of tribunals created by that very same authority, is to mock the very notion of
constitutionalism and to make light of any aspiration to live by the rule of law.
Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the
Military Tribunals (2002)

Problem: Most modern administrative agencies combine executive,

legislative, and judicial functions.

Military commission is a military court with military officers as judges; a

panel of officers and a bench trial to a multiple-judge court; no categorical
prohibition on military trials; are courts-martial all of the time and can
impose any punishment including death; not unconstitutional to have a
non-civilian court
B.
Some Questions

Can suspected terrorists be tried in military commissions rather than

in the ordinary civilian justice system?

Does due process require a civilian trial?

Does international law require a civilian trial?

May the President use military commissions to try suspected

terrorists without new authorization from Congress?

To what extent do pre-existing statutes (e.g., the Uniform Code of

Military Justice) allow military commissions for suspected terrorists?

To what extent do those statutes require military commissions to

follow ordinary courts-martial procedures?
3. To what extent must military commission proceedings be subject to
challenge in and review by the Article III federal courts?

Does Article III or Due Process require a federal court to be available

to hear constitutional or other claims arising in the military
commission process?

Does Article III or Due Process require federal court review of the
factual determinations (e.g., guilt or innocence) made by military
commissions?

106

4.

C.

D.

Another, more policy-oriented question:

Why use military commissions to try terrorists? Possibilities:

1.
Thought there were going to be a lot of these and this would be
easier
2.
Lots of sensitive evidence that you dont want to give away in
open court, need a highly-controlled setting (don't even want to
give it to defendant)
3. Civilian trial might become a circus (like OJ Simpson trial)
4.
Civilian trials have too many rights of the accused b/c they rest
on lots of assumptions -- maybe not better that ten guilty men
go free than one innocent one be jailed; don't want to use the
same rules; governmental interests are so strong that they'll
water down the procedures and that will water down the
ordinary criminal trials
Some Important Precedents
1. Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866): The Court holds that a
military tribunal lacked jurisdiction to try a U.S. citizen, living in Indiana,
of conspiring to aid the Confederacy.
2.
Ex Parte Quirin, 317 U.S. 1 (1942): The Court upholds the use of military
tribunals for German saboteurs apprehended in the United States.
3. Hamdi v. Rumsfeld, 542 U.S. 507 (2004): The Court holds that

Congresss post-Sept. 11 authorization for use of force in the War on

Terror covers detention of people like Hamdi.

Due process requires some opportunity to contest the factual basis

for Hamdis detention. This is implemented through the creation of
Combatant Status Review Tribunals (CSRTs) a very summary
military process for determining whos an enemy combatant and
who is not.
Two Situations in which Military Commissions are Allowed
To substitute for the civilian justice system, with respect to all crimes
and defendants, when the civilian justice system is unavailable (e.g.,
in occupied foreign territory or domestically in areas under martial
law). See Milligan.
To try prosecutions for war crimes, even if the civilian courts are
open. See Quirin.
Note that another set of military courts courts martial are used to try
offenses (both war crimes and ordinary crimes) committed by our own
servicemen.
Statutory and Treaty Provisions
1. UCMJ Art. 21: The provisions of this code conferring jurisdiction upon
courts-martial shall not be construed as depriving military commissions . .
. of concurrent jurisdiction in respect of offenders or offenses that by
statute or by the law of war may be tried by such military commissions . . .
.

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2.

F.

UCMJ Art. 36:

The procedure, including modes of proof, in cases before courtsmartial . . . military commissions, and other military tribunals may
be prescribed by the President by regulations which shall, so far as
he considers practicable, apply the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in the
United States district courts, but which may not be contrary to or
inconsistent with this chapter.

All rules and regulations made under this article shall be uniform
insofar as practicable and shall be reported to Congress.
3. Geneva Convention, Common Article 3: In the case of armed conflict
not of an international character occurring in the territory of one of the
High Contracting Parties, . . . the following acts are and shall remain
prohibited at any time and in any place whatsoever . . . (d) the passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006): The Supreme Court holds that the
system of military commissions established by President Bushs order are not
authorized by the relevant statutes, and that therefore the President was acting
contrary to congressional directive under Youngstown.
Gov't could have argued an inherent presidential power to use military
commissions that aren't subject to Congressional regulation -- conceded
from the outset that Youngstown is the appropriate frame of reference,
not powers inherent in sovereignty; have to read statutory backdrop and
see if President is authorized or if he's run afoul of the statutes
pretty clear the court will defer to the President in war on terror, but it's
not a blank check like Korematsu; is a big check of executive authority,
one of the biggest; Court retaining power over constitutional
interpretation; will give him a leash, but still supervising (Boumediene) -come a long way since Marbury, JR is well-established and powerful check
Congress responds by enacting the Military Commissions Act of 2006,
which explicitly authorizes such commissions but also incorporates
important procedural safeguards.
Have to use court-martial procedures for trials of our own
servicemen to the extent practicable, president has to justify any
departure from this procedure (gets the fifth justice); had a lot more
defendant-friendly procedures than expected but key departures
were looser rules of evidence and defendant can be barred from
seeing some evidence and maybe even some parts of the trial (those
were sticking points)
by incorporating the law of war by statute, Congress
incorporated the Geneva Conventions, which insists that these trials
be as close to court-martials as possible