Con LAW Good Outline

CHAPTER 1
THE FEDERAL JUDICIAL POWER

A. The Authority for Judicial Review
⋅ Marbury v. Madison
⋅ Authority for Judicial Review of State Judgments
⋅ Martin v. Hunter’s Lessee
⋅ Cohens v. Virginia
Case, Fact Nugget, Issue Holding Etc Rule/DP
Marbury The case began on March 2, 1801, Marshall: Yes; yes; and it depends. Cts as well as other
v. when Federalist, William The justices held, through Marshall's departments are bound by the
Madison Marbury, was designated as a forceful argument, that on the last Constitution.
(1803) justice of the peace in DC. issue the Constitution was "the [ hints at judicial review]
Marbury and several others were fundamental and paramount law of
Marshall appointed to Govt. posts created the nation" and that "an act of the Under Art. III, Congress may
by Congress in the last days of legislature repugnant to the not expand the Ct’s original
John Adams's presidency, but constitution is void." In other words, juris, it may only expand or
these last-minute appointments when the Constitution--the nation's contract its appellate juris.
were never fully finalized. The highest law--conflicts with an act of
disgruntled appointees invoked an the legislature, that act is invalid. S. Ct. is still young at this
act of Congress and sued for their This case establishes the S. Ct.'s point, has its first true leader
jobs in the S. Ct.. power of judicial review. and strong CJ. M is still trying
to solidify the legitimacy and
I: Is Marbury entitled to his Marshall didn’t have to address any power of the Ct.
appointment? Is his lawsuit the of these issues b/c the Ct didn’t have
correct way to get it? And, is the S. juris to decide the case. Where Barnes says:
Ct. the place for Marbury to get there is a legal right, there must (1) Authority to review
the relief he requests? also be a legal remedy. It is executive action.
Inherently the province of the ct. to (2) Authority to review
* M. put forth the idea of judicial say what the law is.
legislative action
review under Marbury but the 1st
time the Ct exercised this power § of Jud Act of 1789 that permitted
(3) Art. III’s grant of power
was in Gibbons v. Ogden. the writ of mandamus was declared to the federal judiciary is
an unconst expansion of the Ct’s the ceiling for original
original juris. Congress can only jurisdiction.
expand or contract the ct.’s appellate (4) The Constitution is a
jurisdiction. regulatory document.
Martin v. S. Ct of VA has to recognize the State Cts are bound by

Hunter’s land claims of Martin b/c of a US decisions of federal cts.
Lessee Treaty w/ Great Britain.
Cohens v. An act of Congress authorized the Marshall held that state laws
Virginia operation of a lottery D.C. The and constitutions, when
Cohen brothers proceeded to sell repugnant to the Constitution
D.C. lottery tickets in VA, and federal laws, were
violating state law. VA authorities "absolutely void." After
tried and convicted the Cohens, establishing the Ct.'s
and then declared themselves to be jurisdiction, Marshall declared
the final arbiters of disputes the lottery ordinance a local
between the states and the national matter and concluded that the
Govt.. VA ct. was correct to fine the
Cohens brothers for violating
VA law.
B. Limits on the Federal Judicial Power
1. Interpretive Limits
2. How should the Constitution be interpreted?
• Originalists:
o Textualists:
 What did the text of the Con. mean at the time the framers created it.
• or
 What did it mean to the framers?
1
o Original Intent Adherents:
 What was the original intent of the framers in writing the provisions of the Constitution.
• An amorphous changing document = no real meaning
• Tradition is important for Originalists.
• Process theory
o Constitution and federal ct.’s are just about allowing a fair process, anything outside of the process
should be left to the majoritarian political process (Exec. And Congress). Judiciary only defines
structure.
• Non-Originalists:
o The Constitution is a living document, and while the words never change, the meaning behind
these words must change to reflect the changes in the nation and our society.
 A static document = a dead document
• Prudentialism:
o Applies a cost benefit analysis to Constitutional interpretation. What is the social harm the Ct’s
ruling will have?
• Why do we need to interpret the Constitution?
o The Constitution is intentionally broad and ambiguous.
o Not every important issue regarding Constitutional powers is in the Constitution.
• The 2nd Amendment problem, what does it mean?!

o “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.”
o Collectivists or States Rights Theorists:
 Contend that the 1st clause of the amendment is a qualification of the 2nd clause of the
amendment, in that it clearly specifies the right to bear arms is contingent upon and only
for the benefit of regulated service in the State Militia.
• Today the State Militia is the National Guard.
• Claim historical support in that many people were excluded from owning guns
during the revolutionary war, ex. if they failed to take loyalty oath, were black,
or were a woman.
• Contend that Madison’s lost “Conscientious Objector” clause supports their idea
that the 2nd amendment was restricted to “militia service”.
o Individual rights Theorists:
 Contend that the 1st clause is a subordinate clause, and that the founders realized that the
only way to ensure a well-regulated militia was to allow the people, meaning U.S.
citizens, to own guns.
 Claim historical support that members of the militia during the revolutionary war, were
“the people”.
 Claim that Madison originally wanted to insert the amendments throughout the
Constitution and instead of placing it in Art. I, Sec. 8’s regulation of the militia proviso,
he wanted to place it in Art. 1, Sec. 9 along with other individual rights and restrictions
on National Govt. power.
⋅ United States v. Emerson
2
Case Fact Nugget, Holding Etc Rule/DP
Issue
US v. Miller was S. Ct. rejected Miller’s The purpose of the 2nd
Miller charged w/ argument that the Act Am is assuring the
(NOTE) moving a sawed- was an unconst continuation and
(1939) p. off shotgun in hindrance on his 2nd rendering possible the
13 ISC in violation Am right to bear arms. effectiveness of the
of the Natl. Militia.
Firearms Act of
1934.
US v. F: Emerson was Cummings Dist. J.: The Miller case did not Rule: A fed statute that
Emerson indicted for (1) Yes – all of the text address the issue of whether makes it illegal for a
(ND TX violating 18 and structure of the the 2nd amendment applied person to possess a
1999) USC § 922 which Const, the history of to an individual right to firearm while under a
made it illegal for its drafting, the history possess guns, and its holding state restraining order
p. 14 someone under a of the right to bear that the purpose of the 2nd not based on particular
restraining order arms, judicial amendment was assuring the findings violates the 2nd
to possess a precedent, and public continuation and rendering Am individual right to
firearm. policy all lead to the possible the effectiveness of bear arms.
conclusion that the 2nd the Militia, is the very reason
I: (1) does 2nd Am guarantees an individual citizens must be There are costs to all
Am create an individual citizen the able to own guns, so they personal rights. Social
individual right right to bear arms. can shoot! costs of individual gun
for citizens to ownership are
possess firearms, (2) Yes, § 922 is irrelevant, for if they
or does it merely unconst to the extent were, we would have to
allow the state that it violates a non- expose the entire Bill of
militias to bear criminal citizen’s 2nd Rights to social cost-
arms in their Am right to possess a benefit analysis, most
service to the firearm. likely destroying a good
state. portion of them.
(2) does § 922, to The Am states that it’s
the extent that it the people who were
makes it illegal given the right, not the
for a non- states.
criminal citizen,
subject to a
restraining order,
to possess a gun,
violate the 2nd?
• Group of law professors’ amicus curiae brief states [Historical Textualism]:
o “The 2nd amendment is about the allocation of military force.”
o Contends that the 1st clause of the amendment is a qualification of the 2nd clause of the
amendment, in that it clearly specifies the right to bear arms is contingent upon and only for the
benefit of regulated service in the State Militia.
o If the 1st clause has no independent meaning why include it? Then it is mere surplusage.
o Today the State Militia is the National Guard.
o Claims historical support in that many were excluded from owning guns during the revolutionary
war, ex. if they failed to take loyalty oath, were black, or were a woman.
o Contend that Madison’s lost “Conscientious Objector” clause supports their idea that the 2nd
amendment was restricted to “militia service”.
o Historical evidence supports the assertion that, for the framers of the Constitution, “bear arms”
meant to use fire arms in military service.
o Militias were not isolated bands of disaffected citizens; they were state regulated military entities.
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3. Congressional Limits
Congressional limits
• S. Ct.’s Art. II power/jurisdiction is subject to the qualification that the S. Ct. possess appellate jurisdiction
“both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall
make.
o What does this mean?
 One side contends this is a check on the ct.’s power.
 The other side contends “exceptions” was simply intended to modify the preceding word
.
⋅ The Exceptions and Regulations Clause
⋅ Ex Parte McCardle
⋅ Felker v. Turpin
⋅ Separation of Powers as a Limit on Congress’s
Authority
⋅ United States v. Klein
⋅ Roberts v. Seattle Audubon Society
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Case Fact Nugget, Issue Holding Rule/DP
Ex Parte McCardle was arrested by fed Chase: Yes, the S. Ct. may The S. Ct.’s appellate juris is
McCardle authorities in 1867 for writing remove jurisdiction here b/c it derived from Art. III § 2 of
(1869) and publishing a series of was Congress that gave the ct. the Const, but Congress has
editorials in his MS newspaper. this appellate jurisdiction in the the ability to make exceptions
p. 22 The editorials were sharply 1st place. S. Ct. does not have and regs to this juris.
critical of Reconstruction. the authority to review
CJ Chase McCardle sought a writ of MCardle’s writ of habeas The Ct., speaking through
habeas corpus on the ground that corpus. The Ct is not at liberty Chase, validated
the Reconstruction Acts under to pierce the veil and inquire congressional withdrawal of
which he was arrested were into the motives of the the Ct.'s juris. The basis for
unconst. McCardle appealed to legislature. this repeal was the
the S. Ct. under an 1867 exceptions clause of Art III
congressional statute that The appellate jurisdiction of the § 2. But Chase pointedly
conferred juris on appeal to the S. Ct. is derived from Art. III, reminded his readers that the
High Ct.. After hearing sec. 2, but it is conferred “with 1868 statute repealing juris
arguments in the case, but prior such exceptions and under "does not affect the juris
to announcing a decision, the such regulations as Congress which was previously
Congress withdrew its 1867 act shall make.” exercised."
conferring jurisdiction.
W/out jurisdiction the ct.
I: May the Congress withdraw cannot proceed in any cause.
jurisdiction from the High Ct. Jurisdiction is power to declare
after that jurisdiction has been the law, and when it ceases to
given? exist, the only function
remaining to the ct. is that of
announcing the fact and
dismissing the cause.
The rider proviso only bars the

S. Ct. from hearing Habeas
Corpus appeals, under the 1867
Act, that emerge from Circuit
Ct.’s
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Felker v. F: Felker filed a petition for writ Rehnquist: No. The unanimous A Congressional statute that
Turpin of habeas corpus, appellate or Ct. held that the Act's creation limits a prisoner’s ability to
(1996) certiorari review, and stay of of an appellate panel, charged file successive petitions of
p. 24 execution after having his with reviewing all second or habeas corpus and makes the
convictions for capital murder, successive habeas applications, Appeals Ct’s decisions in
rape, aggravated sodomy, and is not unconstitutional. these matters final and non-
CJ false imprisonment affirmed on appealable does not
Rehnquist appeal. Felker's habeas petition The Act simply transfers the unconstitutionally limit the S
challenged the constitutionality duty of habeas review from the Ct’s appellate juris as the Ct
of Title I of the Antiterrorism district cts to an appellate panel. still retains the ability to hear
and Effective Death Penalty While the Act prevents an original petitions of habeas
Act of 1996. Title I of the Act appeal to the S. Ct. from an corpus.
requires that all motions for filing appellate panel's denial of leave
a second or successive habeas to file a 2nd habeas petition, it S. Ct. rejected the claim that
appeal from a Dist. Ct. be does not repeal the S. Ct.'s this was an impermissible
reviewed by an appellate panel authority to entertain original “exception” to its appellate
whose decision shall not be habeas petitions. Thus, the shift juris or an unconst suspension
appealable by writ of certiorari to in habeas "gatekeeping" duties of the writ of habeas corpus.
the S. Ct. to an appellate panel is neither
an unconstitutional
I: Do the Act's Title I provisions, "suspension" of the habeas writ
preventing the S. Ct. from which would violate the
reviewing an appellate review Exceptions Clause of Article
panel's denial of leave to file a III, nor a deprivation of the Ct.'s
2nd habeas petition, appellate jurisdiction.
unconstitutionally "suspend" the
habeas writ and restrict the Ct's
authority to entertain original
habeas petitions?
US v. Klein F: Congress passed a law Chase: No, a Congressional Congressional laws which
(1871) p. terminating fed ct juris in cases statute, providing that rescind the S. Ct.’s appellate
25 in which a claim was made for presidential pardons are not jurisdiction via a command to
recovery of property seized by admissible as evidence in ct. not hear cases b/c they
CJ Chase the US during the Civil War and proceedings and are even involve evidence that is
where the claimant used a considered as admissions of admissible per settled law are
presidential pardon to show he guilt if they do not specifically an unconstitutional violation
had not aided the enemy. specify innocence, is not a of the separation of powers
constitutional exercise of the doctrine.
I: Is a Congressional statute, Congress’ ability to create
providing that presidential exceptions and regulations for Separation of Powers:
pardons are not admissible as the S. Ct.’s appellate Congressional laws which
evidence in ct. proceedings and jurisdiction. interfere with a power that is
are even considered as exclusively vested in the
admissions of guilt if they do not Policy: The language of the law Executive by the constitution
specifically specify innocence, a here is results driven, rather are unconstitutional
constitutional exercise of the than a limitation on juris. It usurpations of a power of a
Congress’ ability to create prevents juris merely b/c of the coordinate branch of govt.
exceptions and regulations for presence of a specific piece of
the S. Ct.’s appellate otherwise valid evidence, a
jurisdiction? presidential pardon.
6
Roberts v. Dept. of Interior and Related S. Ct. rejected the argument that Ct distinguished Klein.
Seattle Agencies Appropriations Act of Congress was directing the
Audubon 1990 required the Bureau of outcome of the pending Klein only applies when
(1992) p. Land Management to offer litigation. The S. Ct. held that Congress directs the judiciary
27 specified land for sale and also Congress had changed the law as to decision making under
imposed restrictions on itself and did not direct findings an existing law and does not
harvesting from other land. or results under the old law. apply when Congress adopts a
The Act specifically noted two new law.
pending S. Ct. cases and said,
“Congress hereby determines and
directs that management of areas
according to sub §s (b)(3) and (b)
(5) of this § on the specified
lands is adequate consideration
for the purpose of meeting the
statutory requirements that are
the basis for the two lawsuits.”
4. Justiciability Limits
(3) Article III Justiciability limits
• The Justiciability doctrines are all judicially created limits on the matters that can be heard in federal ct.’s
o Some are “Constitutional”
 Meaning that they cannot be overridden by statute.
o Others are “Prudential”
 Meaning that they are base on prudent judicial administration and can be overridden by
statute.
o Per Art. III the federal Ct.’s are only to hear Cases and Controversies.
 Limits the ct.’s jurisdiction to Qs involving a true adversarial conflict that is capable of
resolution through the judicial process.
o 5 Major Justiciability Doctrines:
 (1) No Advisory Opinions (Constitutionally not a case or controversy)
• Ct. will not answer Qs of law submitted to it by the other branches of govt. when
there is no case or controversy involved.
• See e.g. Hayburn’s Case
o The basic problem in Hayburn’s case was that Congress passed a law
directing the federal ct.’s to decide Revolutionary War veterans’
pension claims but then stated that the Sec. of War, an Executive
official, could ignore the ct.’s decisions.
o The basic problem is the same in Plaut the ct.’s final decisions were
being subjected to revision by the stipulations of an act of Congress.
• Some scholars contend that Bush v. Gore was an advisory opinion as the FL
election commission had not finished counting the votes.
 All of the doctrines require that there is a “case and controversy.”
o Advisory Opinion Doctrinal Progression:
 Opinion Of the Justices [Per Curiam]:
• Rule: In order for a case to be justiciable and not an advisory opinion, there
must also be a substantial likelihood that a fed ct decision in favor of a claimant
will bring about some change or have some effect.
 Hayburn (1792):
• Rule: S. Ct. will not review cases that ask for advisory opinions b/c they lack
the necessary qualities to create an Art. III “case or controversy.”
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 Plaut v. Spendthrift Farms [Scalia] (1995):
• Rule: S. Ct. will not support a law that requires it to reopen cases on which it
has rendered a final judgment, to do so would effectively render the ct’s
previous rulings mere advisory opinions [dismissal by S. Ct. is a final
judgment!].
 Nashville, C & St. L. Ry. V. Wallace [Stone] (1933):
• Rule: The case was justiciable “so long as the case retains the essentials of an
adversary proceeding, involving real, not a hypothetical, controversy.”
o Brandeis’ Concurring Opinion in Ashwander v. TVA (1936):

 (1) S. Ct. will not pass upon the constitutionality of legislation in a friendly, non-
adversarial proceeding.
 (2) Ct. will not anticipate a Q of constitutional law in advance of the necessity of
deciding it, the Q must be necessary to decide the case at hand.
 (3) Ct. will not formulate a Constitutional rule that is broader than what is necessary to
determine the case at hand.
 (4) Ct. will not pass on a Constitutional Q although properly presented by the record, if
there is also some other ground on which the case may be decided.
 (5) Ct. will not pass on the validity of a statute upon the complaint of one who fails to
show that he is injured by its operation.
• The right to be heard will be denied to one who does not have a personal or
property right at stake in the suit.
 (6) Ct. will not pass of the validity of a statute at the insistence of one who has availed
himself of its benefits.
 (7) When there is a Q of whether an act of Congress is unconstitutional the ct. will first
attempt to maintain a statutory construction that is constitutional, and if this is not
possible then the ct. may deem the act unconstitutional.
a. Prohibition on Advisory Opinions: The 1st Major Justiciability Doctrine

⋅ Opinion of the Jusitices
⋅ Hayburn’s Case
⋅ Plaut v. Spendthrift Farm, Inc.
⋅ Nashville, C & St. L. Ry. V. Wallace

Opinion of F: Jefferson asked the S. The Justices declined to answer the Qs In order for a case to be
the Jusitices Ct. for its answers to a stating, “The 3 depts of the govt… justiciable and not an
p. 29 long list of Qs concerning being in certain respects checks upon advisory opinion, there must
America’s conduct as a each other, and our being the judges also be a substantial
neutral party in a conflict of a ct in the last resort, are likelihood that a fed ct
b/w France and England. considerations which afford strong decision in favor of a
arguments against the propriety of claimant will bring about
our extra-judicially deciding the Qs some change or have some
alluded to. effect.
8
Hayburn’s F/I: The basic problem in 5 S. Ct. Justices found this approach S. Ct. will not review cases
Case (1792) Hayburn’s case was that unconstitutional, explaining that the that ask for advisory
p. 30 Congress passed a law duty of making recommendations opinions b/c they lack the
directing the fed ct.s to regarding pensions was “not of a necessary qualities to create
decide Revolutionary War judicial nature.” It would violate sep an Art. III “case or
veterans’ pension claims of powers b/c the judicial actions controversy.”
but then stated that the might be “revised and controlled by
Sec. of War, an Exec the legislature, and by an officer in the
official, could ignore the exec dept. Such revision and control
ct.’s decisions. we deemed radically inconsistent w/
the independence of that judicial
power which is vested in the cts.
Plaut v. F: In short, Congress Scalia: Yes. The Const’s sep of •Having achieved finality a
Spendthrift passed legislation legislative and judicial powers denies judicial decision becomes
Farm, Inc. allowing cases on which it the authority to do so. This the last word of the judicial
(1995) p. 30 the fed ct.s had rendered legislation is unconst. b/c it requires dept. with regard to a
J. Scalia final decisions to be the ct.s to decide that the law that particular case or
reopened in some applied to a completed case was controversy, and Congress
situations. different than the ct.s concluded it may not declare by
was. retroactive legislation that
I: Does legislation that the law applicable to that
requires the fed cts to 2 prior categories the ct has identified very case was something
reopen cases upon which as violating Art. III don’t apply here: other than what the ct. said
the cts have rendered a (1) Klein type – statutes that prescribe it was.
final decision violate the the rules of decision for pending cases
sep of powers doctrine? of the fed ct.s are unconstitutional. S. Ct. will not support a law
(2) Hayburn type – Congress cannot that requires it to reopen
vest review of the decisions of Art. III cases on which it has
ct.s in officials of the Exec branch rendered a final judgment,
to do so would effectively
render the ct’s previous
rulings mere advisory
opinions.
Nashville, C F: A Co. sought a Stone: S. Ct. explained that b/c the A case is justiciable “so
& St. L. Ry. declaratory judgment that matter would have been justiciable as long as the case retains the
V. Wallace a tax was an unconst a request for an injunction; the suit for essentials of an adversary
(1933) p. 32 burden on ISC. a declaratory judgment was capable of proceeding, involving real,
J. Stone fed ct adjudication. not a hypothetical,
controversy.”
b. Standing: The 2nd Major Justiciability Doctrine

- S. Ct. has declared that standing is the most important Justiciability requirement
- Standing is the determination of whether a particular person is the proper party to bring a matter to the ct.
for adjudication
- “In essence the Q of standing is whether the litigant is entitled to have the ct. decide the merits of the
dispute or of particular issues”
- 3 Constitutional Requirements for Standing [Test emereges in O’Connors Allen v. Wright Opinion]:
o (1) Injury of π:
 π must allege that he has suffered or imminently will suffer a personal injury.
o (2) Causation of π’s injury by ∆:
 π must allege that the injury is fairly traceable to the ∆’s conduct.
o (3) Ability of ct. to redress π’s injury:
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 π must allege that a favorable federal ct. decision is likely to redress their injury.
- 2 Prudential Requirements for Standing [Prudent admin of justice]:
o (1) A party generally may assert only his or her own rights and cannot raise the claims of 3rd
parties not before the ct. No 3rd party claims where affected party may bring suit themselves.
o (2) π may not sue as a taxpayer who shares a grievance in common with all other taxpayers. No
generalized complaints.
i Constitutional Standing Requirement
⋅ Allen v. Wright
⋅ Lujan v. Defenders of Wildlife
⋅ Notes on Constitutional Standing Requirements:
Injury, Causation, and Redressability
⋅ Linda R. S. v. Richard D.
⋅ Warth v. Seldin
⋅ Simon v. Eastern Kentucky Welfare Rights
Organization
⋅ Duke Power Company v. Carolina Environmental
Study Group, Inc.
Case Fact Nugget, Issue Holding Etc Rule/DP
Trafficant F: White Π sued the Yes, the Civil Rights Act of 1968 creates the right to interracial living.
case (not in owners of his building
book) b/c they were
discriminating.
I: Does π have
standing?
10
Allen v. F: Πs want to prevent O’Connor: No Stevens and Blackmun “A plaintiff must allege
Wright, the IRS from granting standing here: dissent: Say that πs DO personal injury fairly
1984, tax exemptions to (1) The injury is have standing. Πs have a traceable to the ∆’s
O’Connor, p. discriminatory schools. too abstract. The personal stake in the allegedly unlawful
33 Πs claim that IRS is Govt. failing to outcome. The injury IS conduct and likely to
preventing integration follow its own fairly traceable to the be redressed by the
and has allowed public rules does not IRS. Sep’n of powers requested relief.”
schools to Resegregate. create standing. issue has no relevance to
Injury has to be the standing Q. A
I: Did Parents of personal—the πs complaint should not be
minority children who here haven’t dismissed on lack of
attended public schools personally been standing grounds when
have standing to denied equality the real reason is sep’n
challenge IRS or entry into the of powers.
regulations for denying private schools.
tax-exempt status to (2) The injury is
private schools that not fairly
discriminated against traceable to the
racial minorities. IRS—the private
schools should be
the ∆s. The govt
action is not
causing the injury
free and clear of
the actions of a
3rd party.
(3) Ct. remedy
not likely to
redress: There is
nothing to
indicate that this
remedy would
result in
desegregation.
(4) AND, sep’n
of powers
requires that the
ct. stay out of the
exec’s b’ness
when it comes to
statutes that don’t
offend the
constitution.
After Allen, (1) Injury must be personal and concrete.
before Lujan (2) (A) Injury must be fairly traceable.
(2) (B) The remedy sought needs to address the injury.
* Rogue Separation of Powers issue according to O’Connor.
Pre-Lujan Doctrine on Con. Standing:

(1) Personal Injury
(2) Causation
(3) Redressability
(4) Separation of Powers
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Lujan v. F: The Endangered Scalia Blackmun and R/DP: * NOW, the
Defenders of Species Act of 1973 (plurality): No O’Connor Dissent: threshold Q is
Wildlife, required federal standing here. Doesn’t like maj’s separation of powers
Scalia, 1992, agencies to consult with Where the injury overbroad rejection of issue.
p.40 the Sec. of the Interior is indirect, the “procedural injuries” b/c 1) Now the
to ensure that any requirement to most governmental requirement is that
authorized actions did show injury is conduct can be termed there is an invasion of
not jeopardize heightened. The “procedural.” There is a right which is “actual
endangered species. A πs here do not standing here. or imminent”
1986 amendment to the have an 2) A) Injury must be
act limited its scope to imminent injury Scalia’s Rejection of πs “fairly traceable” and it
actions in the U.S. or on b/c they don’t Standing Theories: (a) can’t involve
the high seas. πs filed an have concrete “ecosystem nexus”: “To independent actions of
action seeking a Dec. plans to return. say that an act protects 3rd parties, much like
Judgment that the new There is a ecosystems is not to say the rule in Allen.
amendment erred by redressability that the act creates rights 2) B) Redressability
providing for a issue b/c the US of action in persons who must be “likely” rather
geographic limit on the is just a small have not been injured in than merely
original law. portion of the fact.” speculative.
funding for these (b) “animal Prof: This rule is
I: Do πs have standing? projects. nexus”/“vocational illusory b/c Congress
Also, the relief nexus”: Standing is not can redefine what an
requested is too created by an “ingenious “actual or imminent”
broad and academic exercise in the or concrete injury
implicates Allen conceivable”, it is pure actually is.
v. Wright sep’n speculation to say that
of powers issues. someone who has an
Scalia’s “final interest in seeing,
dance:” Throws studying, or working
out the idea of a with an animal,
“procedural anywhere in the world, is
injury” b/c this is appreciably harmed by a
not a case or single American funded
controversy project that may harm a
under Art. III— portion of that animal’s
it’s too much like habitat.
a general
grievance.
Vindicating the
public interest is
the function of
Congress and the
Exec.
Con. Standing Requirements Post Lujan, Scalia’s Refinements:

**Separation of Powers concerns & Art. III case and controversy concerns.
(1) Invasion of a legally protected right that results in concrete personal injury actual or
imminent.
(2) Injury must be fairly traceable to the ∆’s conduct and not be primarily the result of
3rd parties not before the ct.
(3) Redressability must be likely as opposed to speculative.
Scalia indicates that standing will usu. be assumed when a party is directly injured, but where the
injury is indirect standing will be much harder to attain.
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INJURY NOTE CASES
City of Los F: Π put in choke hold White: No Lyons cannot show that “Absent a sufficient
Angeles v. by PD after a traffic standing b/c there he will ever again face likelihood that he will
Lyons violation. Lyons sought is no imminent the situation of being be harmed in a similar
(NOTE), an injunction against the threat of injury restrained w/an illegal way, Lyons is no more
White, 1983, City barring the use of —just b/c it police choke hold. entitled to an
p. 50 such control holds. happened once, In order to est. an injunction than any
doesn’t mean it’s actual controversy in other citizen of LA;
I: Did Lyons's going to happen this case Lyons would and a federal ct. may
injunction against the to him again. have to allege: not entertain a claim
use of PD chokeholds (1) That he would likely by any or all citizens
meet the threshold have another encounter who no more than
requirements imposed w/the LAPD. assert that certain
by Article III of the (2) That all LAPD practices of law
Constitution? officers apply choke enforcement officers
holds to any citizen with are unconstitutional.”
whom they happen to
have an encounter.
(3) That LA authorized
the officers to act in such
a manner.
U.S. v. Hays, F: πs claim that O’Connor: No standing b/c πs do not live in the district in Q and have
(NOTE) Louisiana’s districting not demonstrated that they have been subjected to discrimination
O’Connor, plan is a “racial themselves.
1995, p. 51 gerrymander,” and as
such violates the 14th Rule: In order to have the proper standing to petition the U.S. regarding
Am. a state’s allegedly racially discriminatory congressional redistricting
practices that πs must be citizens of one of the affected districts and
must have been denied equal treatment based on the legislature’s
reliance on racial criteria.
Federal F: πs brought suit Breyer: Yes, πs R/DP: If congress grants a right to suit that is
Election challenging a decision have standing. specifically and narrowly tailored, then standing
Commission by the FEC that a Note: totally will be found.
v. Akins, certain committee was different result
(NOTE), not a political from Lujan.
Breyer, 1998,
committee subject to
p. 52 disclosure regulations.
I: Do voters have the
proper legal standing to
challenge the Federal
Election Commission's
decisions regarding
political committees?
CAUSATION AND REDRESSABILITY NOTE CASES
13
Linda R.S. v. F: π challenged the H: No, the mother does not have proper standing to bring this suit b/c
Richard, Texas policy of the action does not satisfy the 3rd constitutional requirement of
(NOTE) prosecuting fathers of standing redressability.
1973, p. 52 legitimate kids for not An injunction commanding TX state prosecutions of fathers who failed
paying child support, to pay child support to illegitimate children would not necessarily
but not fathers of illegit provide this mother any relief, as the father might simply go to jail.
kids.
Barnes Says: Crazy, bad decision.
I: Standing?
Warth v. F: πs challenging the H: No, they do not have proper standing to Barnes says: that the
Seldin, unconstitutionality of challenge Penfield’s zoning practices b/c the ct. isn’t respecting the
(NOTE) zoning practices which action does not satisfy the 3rd constitutional distinction here
1975, p. 53 prevented the requirement of standing redressability. between “likely” and
construction of low- “speculative.”
income housing. An injunction commanding Penfield to
I: Standing? restructure its zoning laws to permit more
lower-cost high-density housing might not
actually result in housing πs can afford, and
these builders might not choose to construct
houses in Penfield, regardless of the outcome
of the suit.
14
Simon v. E. Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) [Indigents requesting IRS to really
enforce the requirement that tax-exempt hospitals give free care to indigents, No redressability = no standing] p. 53
Statement:
Group of indigents, who had sought but were denied medical care in tax-exempt hospitals, are seeking an
injunction to force the IRS to more strictly ensure that these hospitals are in fact rendering free medical
care for indigents.
Issue:
Do these indigents possess the requisite standing to bring this suit?
Holding:
No, they do not have proper standing to challenge the IRS’s standard for the amount of free care tax-exempt
hospitals must supply indigents b/c the action does not satisfy the 3rd constitutional requirement of
standing redressability.
It is “purely speculative” whether the new Revenue ruling was responsible for the denial of medical
services to the πs.
There is no “substantial likelihood” that πs’ victory in this suit would result in them receiving the
free medical services.
Rule:
In addition to the first two constitutional standing requirements (actual injury, and ∆’s causation) π must also
satisfy the 3rd requirement, a favorable ruling must be likely to result in the ct.’s redressment of π’s
injury.
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978) [Town residents challenge the
constitutionality of the Price-Anderson Act re: Nuclear power and plant liability, Redressability = Standing] p. 53
Statement:
Group of residents and two community organizations challenge the constitutionality of the Price-Anderson
Act’s limitation on the liability of utility companies in the event of a nuclear reactor accident.
Issue:
Do these residents and organizations possess the requisite standing to bring this suit?
Holding:
Yes, they do have proper standing to challenge the constitutionality of the Price Anderson Act’s limitation on
the liability of nuclear plants b/c the action does satisfy the 3rd constitutional requirement of standing
redressability.
Construction of a nuclear reactor in π’s area subjected them to many injuries, including exposure to
radiation, thermal pollution, and fear of major nuclear accidents.
But, the ct. held that the Price-Anderson Act was constitutional anyway.
Rule:
In addition to the first two constitutional standing requirements (actual injury, and ∆’s causation) π must also
satisfy the 3rd requirement, a favorable ruling must be likely to result in the ct.’s redressment of π’s
injury.
Class:
Breyer said that the S. Ct.’s decisions are not final b/c they are right, rather they are right b/c they are final.
ii Prudential Standing Requirements

⋅ The Prohibition of Third-Party Standing
⋅ Singleton v. Wulff
⋅ Barrows v. Jackson
⋅ Craig v. Boren
⋅ Gilmore v. Utah
⋅ The Prohibition of Generalized Grievances
⋅ United States v. Richardson
⋅ Flast v. Cohen
⋅ Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc.
⋅ Elk Grove Unified v. Newdow (Supp)
2 Prudential Requirements for Standing:
15
• (1) Asserting only their own rights and not raising the claims of 3rd parties not before the ct.
o General Prohibition of 3rd Party Standing:
 π generally must assert his own legal rights and interests, and cannot rest his claim to relief on
the legal rights or interest of 3rd parties.
 A π can only assert injuries that he or she has suffered; a π cannot present the claim of 3rd
parties who are not part of the law suit.
• (2) Not suing as taxpayers who share a grievance in common with all other taxpayers. No generalized
complaints.
o Prudential requirements for standing differ from the constitutional requirements in that Congress can
alter or overrule the prudential standards b/c they are not derived from the Constitution, but rather from
the ct.’s idea of prudent judicial administration

Singleton v. F: MO is trying to keep Blackmun: Yes, docs have standing. The Prof: “this case
Wulff, poor folk from getting docs in this case fit the exception to the rule makes sense.”
Blackmun, abortions (unless they against 3rd party standing. Rule: 3rd party
1976, p. 54 are medically indicated, (1) The docs allege an injury in fact b/c they standing will be
Medicaid won’t pay). are owed $$. found when:
Dr.’s are suing to have (2) The Dr.’s are well situated to bring the (1) The claimants
the law declared suit b/c their close relationship to the women rights are
unconstitutional. makes them effective proponents to challenge inextricably linked to
I: Do the docs have the law. (3) AND there are genuine obstacles the rights of a 3rd
standing to sue when the to the women bringing the cases themselves: party.
women themselves e.g capable of repetition yet evading review, (2) The is some
might me the better privacy concerns. barrier that limits the
litigants? claimants’ ability to
bring the claims
themselves.
Barnes: This is a
good standing
summary case for
showing how to
apply the standing
Qs: A) Art III
standing and B)
Prudential standing.
16
Barrows v. Jackson, 346 U.S. 249 (1953) [Policy decision, white man sues to allege the unconstitutionality
of a racially discriminatory land covenant] p. 57
Statement:
White landowner sues to challenge the constitutionality of a racially discriminatory real covenant that he is a
party to, stemming from his desire to rent his property to black families.
Issue:
Does this white property owner have standing to challenge this discriminatory real covenant?
Holding:
Yes, he does have the requisite standing to challenge the constitutionality of this racially discriminatory real
covenant b/c it would be difficult or impossible for blacks to challenge the constitutionality of the real
covenant, as they are not parties to the covenant and would lack standing of their own.
Rule:
Persons may sue to protect the rights of 3rd parties not before the ct. when 2 requirements are met:
(1) the relationship between the parties is such that the person suing may effectively advocate for
the right, and;
(2) there are genuine obstacles to the 3rd party asserting their own rights.
Craig v. Boren, 429 U.S. 190 (1976) [Bartender sues b/c OK law permits 18 year old girls to buy beer, but not
18 year old guys] p. 57
Statement:
Bartender sues to challenge the constitutionality of an OK law that permits 18 year old girls to buy 3.2%
alcohol beer, but denies 18 year old guys the same right.
Issue:
Does this bartender have standing to challenge this discriminatory alcohol law?
Holding:
Yes, he does have the requisite standing to challenge the constitutionality of this discriminatory alcohol law
b/c he has suffered an “actual injury”, as this biased law has materially effected his business by denying
him all of his male customers between the ages of 18 and 21
Rule:
the right, and;
“Vendors and those in like positions have been uniformly permitted to resist efforts at restricting their
operations by acting as advocates of 3rd parties who seek access to their market or function.”
Gilmore v. UT, 429 U.S. 1012 (1976) [Mother seeks to attain stay of execution and habeas corpus writ on behalf
of her death-row son, who has declined to do so] p. 57
Statement:
Death row inmate, Gary Gilmore’s mother, sued on his behalf, as a “next-of-friend”, to stay his execution and
attain a writ of habeas corpus, stemming from her son’s choice not to do this on his own.
Issue:
Does this mother have standing to sue on behalf of her death-row son to stay his execution?
Holding:
No, she does have the requisite standing to sue to stay her son’s execution b/c her son “knowingly and
intelligently” declined to pursue the stay and writ of habeas corpus on his own, thus effectively waiving
his right to do so.
Rule:
the right, and;
(1) the relationship between the parties is such that the person suing may effectively advocate for the right, and;
17
U.S. v. F: Richardson, A U.S. Burger: No, π lacks the proper standing to R: Under
Richardson, citizen sues to force the challenge the constitutionality of the CIA’s Frothingham, the
Burger, 1974, CIA to provide a reporting scheme. Because whatever injury must be more
p. 58 constitutionally required Richardson’s injury is it is one he shares than “remote,
regular listing of all its “with all the members of the public,” and fluctuating and
expenditures, per Art. 1, therefore his proper remedy is to lobby uncertain.”
s. 9, cl. 7. Richardson, a congress to change the law.
taxpayer interested in Frothingham v. Mellon (1923): In order to attain
activities of the Central Ct. denied standing to a woman challenging the taxpayer
Intelligence Agency, the Federal Maternity Act of 1921 on the basis exception to the
sued the Govt. to that it raised her income taxes. Her injury was prudential rule
provide records a “comparatively minute, remote, fluctuating, against generalized
detailing the CIA's and uncertain” impact on a taxpayer, and she grievances a π must
expenditures. failed to allege the kind of direct injury make allegations:
required for standing. (1) Challenging an
I: Does a federal enactment under the
taxpayer have standing Flast v. Cohen (1968): Taxing and Spending
to force the Govt. to Ct. announced a two-pronged standing test (a Clause of Art. I, §8
disclose expenditures of prudential test): of the Constitution,
the CIA? (1) Requires allegations challenging an and;
enactment under the Taxing and Spending (2) Claiming that the
Clause of Art. I, §8 of the Constitution, and; challenged enactment
(2) Claiming that the challenged enactment exceeds specific
exceeds specific constitutional limitations constitutional
imposed on the taxing and spending power. limitations imposed
Assumes that Frothinham’s requirement of a on Congress’ taxing
concrete claim is met and then applies the 2 and spending power.
prong test.
Taxpayer status is
Richardson’s claim fails the two-pronged not sufficient to
taxpayer standing test from Flast: confer standing to
(1) His challenge is not directed at and Art. I, challenge the
§8 Taxing and Spending power of Congress, constitutionality of
rather he challenges the constitutionality of federal action unless
statutes regulating the CIA. the taxpayer alleges
(2) He alleges that these regulations violate direct injury from the
the Art. I, § 9 requirement that the Govt. practice and not
provide a regular accounting of all public generalized
money. grievances common
“This is surely the kind of generalized to all members of the
grievance described in both Frothingham public.
and Flast since the impact on him is plainly
undifferentiated and common to all member DP: Ct. is saying that
of the public.” if no one can bring a
NO GENERALIZED GRIEVANCES. claim, then it should
be dealt with in the
Stewart and Marshall dissent: Prof skipped political arena. Ct. is
this in class. ruling with issues of
judicial economy in
mind.
18
Flast v. F: Flast, as a taxpayer Warren: Yes, the πs do Harlan dissent: R (A Prudential
Cohen, challenged federal posses the requisite Neither of the two Test for Taxpayer
Warren, 1968, legislation that standing to challenge, on parts of the Standing):
p. 61 financed the purchase 1st amendment grounds, majority’s In order to attain the
of secular textbooks for the constitutionality of taxpayer standing taxpayer exception
use in religious schools. the apportionment of tests actually to the prudential
Flast argued that such funds under the measures the rule against
use of tax money Elementary and taxpayer’s “stake generalized
violated the Estab. Secondary Education Act in the outcome”. grievances a π must
Clause of the 1st Am. A of 1965 to religious make allegations:
Dist. ct. held that the schools. Why would a
fed. cts. should defer (1) The πs are taxpayer be more (1) Challenging an
when confronted with challenging an enactment interested in enactment under the
taxpayer suits directed under the Taxing and expenditures Taxing and Spending
against federal spending Spending Clause of Art. made pursuant to Clause of Art. I, §8
programs. I, §8 of the Constitution, Congress’ Art. 1, of the Constitution,
and are; §8 power to tax and;
I: Should the (2) Claiming that the and spend rather
Frothingham barrier be challenged enactment than expenditures (2) Claiming that the
lowered when a exceeds specific affected through challenged enactment
taxpayer attacks a constitutional limitations regulatory exceeds specific
federal statute on the imposed on Congress’ schemes. constitutional
ground that it violates taxing and spending limitations imposed
the Establishment and power. Why would the on Congress’ taxing
Free Exercise Clauses of taxpayers and spending power.
the 1st Am? The framers saw the standing vary
connection between the based on which DP: The Ct. has held
power to tax and spend portion of the Flast limited to its
and religious liberty. Constitution has facts and has only
They intended to prevent been violated. applied it in cases of
the govt. from using its Congressional
power to favor a given expenditures that
religion or religious violate the
institution. Establishment Clause
(even though the case
The framers intended the itself just required a
Establishment clause as a violation of a specific
limit on Congress; power const. provision).
to tax and spend.
Case F/I Holding Etc Rule/DP
19
Valley Forge F: Πs filed suit claiming Rehnquist: No standing. Brennan and Prof: Problem with
Christian that donation of the B/c the πs do not allege a Marshall this case is that the
College v. property to Valley Forge violation of dissent: Flast test was just
Americans violated the congressional authority made up—the ct.
United for Establishment Clause under the taxing and “if the action could have
Separation of and that it deprived πs spending power of Art. I, violates the First constructed a similar
Church and of the fair and § 8, the suit does not Amendment it test for the facts
State, constitutional use of meet the narrow does so whether relevant to this case
Rehnquist, their taxes. conditions that allow for it is in the form as well.
1982, p. 64 taxpayer standing (this is of a cash DP: The Ct. here is
I: Does a group of really an Art. IV, § 3 donation or a limiting Flast to its
taxpayers have standing property issue). Also, land donation in facts to prevent the
to bring suit alleging the problem is that πs support of the floodgates from
that a transfer of surplus are challenging an religious opening.
Govt. property to a ACTION of the Sec. of institution.” Prof says to take
religious college Health, Education and away from this case:
violated the Estab. Welfare, NOT an act of If there’s a prudential
Clause? Congress taken under analysis then the ct.
its taxing and spending is acknowledging
power. [Fails the Flast that there is an
exception to generalized injury.
grievances]
Elk Grove F: π thinks that “under Stevens: Ct. presumes Rehnquist, Prof: Ct. makes up a
Unified School God” is unconst. and Art III standing b/c the O’Connor, and rule in that its trying
Distr. v. violative of the 1st Am. Calif. state ct. found it Thomas to be prudent by
Newdow, I: Does dad have and so they address concurrence: staying out of the
Stevens, 2004, standing to bring this prudential standing. The majority’s issue b/c the ct. feels
p. 17 supp. claim? Newdow lacks 3rd party use of standing, that the case is
standing to sue on behalf specifically a harming the
of his daughter. The family law daughter. Ct. is using
girl’s mother has legal exception to prudential concerns
custody AND the ct. was standing, masks to get out of saying
unwilling to get involved the real issue. that the pledge is
in a domestic relations The pledge of unconst. or const.
matter. Ct. does not say allegiance is a
that this is a generalized patriotic exercise,
grievance, but focuses on not a religious
the dom. relations issue exercise.
as a way of not finding Further more it is
standing—BUT the a voluntary
domestic relations issue exercise.
has already been resolved
by the Cali ct.. Ct. also
says that Newdow might
not be similarly situated
as his daughter.
20
Standing Post Newdow:
• In order to sue in federal ct. a π must satisfy constitutional and prudential standing:
o 3 Constitutional Requirements for Standing:
(1) Injury: Alleging that πs have suffered or imminently will suffer a personal injury.
(2) Causation: Alleging the injury is fairly traceable to the ∆’s conduct.
(3) Redress: Alleging that a favorable federal ct. decision is likely to redress their injury.
o 2 Prudential Requirements for Standing:
 (1) Asserting only their own rights and not raising the claims of 3rd parties not before
the ct.
 (2) Not suing as taxpayers who share a grievance in common with all other taxpayers. No
generalized complaints.
 (3) Domestic Relations:
• It is improper for the federal ct.s to entertain a claim by a π whose standing to
sue is founded on family law rights that are in dispute when prosecution of the
lawsuit may have an adverse effect on the person who is the source of the π's
claimed standing.
Standing Summary: Is there a case and controversy?
• Art. III Standing? [Test Post Allen & Lujan]:
o (1) have suffered a concrete injury in fact or be facing imminent harm from a probable injury in fact;
o (2) π’s harm must be likely traceable to ∆’s conduct, not primarily the result of 3rd parties not before
the ct.;
o (3) it must be likely that a favorable verdict will redress the π’s harm; Redressability must be likely as
opposed to speculative.
• Prudential Standing?:
o Generally, NO 3RD PARTY SUITS.
 Persons may sue to protect the rights of 3rd parties not before the ct. if & only if 2
requirements are met [Singleton v. Wulff]:
• (1) the relationship between the parties is such that the person suing may effectively
advocate for the right, and;
• (2) there are genuine obstacles to the 3rd party asserting their own rights.
 Newdow Rule:
• It is improper for the federal ct.s to entertain a claim by a π whose standing to sue is
founded on family law rights that are in dispute when prosecution of the lawsuit
may have an adverse effect on the person who is the source of the π's claimed
standing.
o NO GENERALIZED GRIEVANCES [E.g. Frothingham & Richardson].
 “The impact on the π is plainly undifferentiated and common to all member of the public.”
 A “prudential principle” preventing standing when the asserted harm is a generalized
grievance shared in substantially equal measures by all or a large class of citizens.
 The prohibition against generalized grievances prevents individuals from suing if their only
injury is as a citizen or taxpayer, concerned with having the government follow the law.
21
 Exceptions:
• (1) Flast taxpayer exception: In order to attain the taxpayer exception to the
prudential rule against generalized grievances a π must make allegations [has gen.
been restricted to 1st amendment Est. Clause claims.];
o (i) Challenging an enactment under the Taxing and Spending Clause of Art.
I, §8 of the Constitution, and;
o (ii) Claiming that the challenged enactment exceeds specific constitutional
limitations imposed on Congress’ taxing and spending power.
• 2 Flast Nexuses:
o (i) A connection between the taxpayer and the allegedly unconstitutional
legislation.
o (ii) A connection between the taxpayer and the infringement.
• (2) Statutory right to sue
c. Ripeness: The 3rd Major Justiciability Doctrine

• Ripeness, like mootness is a justiciability doctrine determining when review is appropriate.
• Ripeness and mootness determine when the litigation may occur.
o Specifically the Ripeness doctrine exists to separate matters that are premature for review because
the injury is speculative and never may occur, from those cases that are appropriate for federal ct.
action.
• In order for the case to be ripe, the π might show that review is not premature:
o a π must demonstrate that a harm has occurred or imminently will occur.
• There is an unfairness, however, to require any person to violate a law in order to challenge it.
o A primary purpose of the declaratory judgment act was to permit people to avoid this choice and
obtain a preenforcement review of statutes and regulations.
• Ripeness then is best understood as the determination of whether a federal ct. to grant preenforcement
review.
⋅ Poe v. Ullman
⋅ Abbot Laboratories v. Gardner
⋅ United Public Workers v. Mitchell
⋅ International Longshoremen’s and
Warehousemen’s Union, Local 37 v. Boyd
⋅ Regional Rail Reorganization Act Cases
⋅ Lake Carriers Association v. MacMullan
22
Case Name Facts & Issue Holding Dissent Rule
Poe v. Ullman, 367 U.S. F: An old Connecticut Frankfurter: Douglas: The declaratory
497 (1961) p. 67 law prohibited the use of No, this issue is not The majority's decision judgment of a state ct.
contraceptive devices constitutionally ripe for leaves these πs in a upholding a statute on
ct. review of the and the giving of federal Ct. determination terrible predicament: the books does not make
constitutionality of a CT medical advice in the use b/c the individuals in Q break the law and face the issue of that statute’s
statute that prohibits of those devices. The have not been prosecuted the penalties or try to constitutionality ripe for
medical advice regarding law also applied to under the statute that is avoid detection. This is federal ct.s termination
contraceptives, the S. Ct. married couples. The CT alleged as an uncivilized way to when the state has not
determines that this AG threatened to enforce unconstitutional. The Ct. conduct our medical and likely will not
case is not ripe for a the law against three found no sense of consultations. The πs prosecute under the
few b/c Connecticut has individuals in this case "immediacy which is an deserve a resolution of statute.
not enforced the statute including Jane Doe (Doe indispensable condition the issue.
v. Pullman). Mrs. Doe, of constitutional a case is considered
having recovered from a adjudication." What are these people "ripe" for federal Ct.
tough pregnancy which and their Dr. to do? purposes when:
threatened her life and "It is clear that the mere Flout the law and go to (1) the issues presented
left her with several existence of the state prison? Violate the law are appropriate for
emotional and physical penal statute would surreptitiously and hope judicial decision and;
disabilities, was constitute insufficient they will not get caught? (2) the parties would
informed by her grounds to support a By today's decision we face hardship if the ct.
physician that any federal ct.s adjudication leave the no other declined to hear the case
additional pregnancies of its constitutionality alternatives.
could be fatal. She and proceedings Ct.’s Perception of
challenged the CT law brought against the Inevitability of
since it criminalized her state's prosecuting Enforcement is Key!
use of contraceptives. officials if real threat of
enforcement is
I: Is this issue wanting.”
constitutionally ripe for
Ct. determination, when
the individuals in Q have
not been prosecuted
under the statute that is
alleged as
unconstitutional?
23
Case Name Facts & Issue Holding Rule
Abbott Laboratories v. F: In 1962 Congress amended Harlan: Yes, we believe the A case is considered "ripe" for
Gardner, 387 U.S. 136 (1967) the Federal food drug and issues presented are appropriate federal Ct. purposes when:
P. 69 cosmetic act to require for judicial resolution at this (1) the issues presented are
manufacturers of prescription time. The issue is purely a legal appropriate for judicial decision
a group of pharmaceutical drugs to print the GENERIC one, with a statue that was and;
companies is challenging the NAME of the drug prominently properly construed by the (2) the parties would face
authority of the Commissioner into an type at least half as large Commissioner to require the hardship if the ct. declined to
of the Department of Health as that used thereon for any establish name of the drug to be hear the case
education and welfare, in proprietary name. used every time the proprietary
relation to his ability to A number of drug companies name is employed. DP: The only true way to
promulgate a regulation that sued, arguing that the "This is also a case in which the distinguish Abbott from the
requires re-labeling of the Commissioner had exceeded his impact of the regulations upon non-ripe Poe case is the inkling
pharmaceutical company's authority. The drug companies the petitioners is sufficiently that the law will actually be
products. alleged to comply with order direct and immediate as to enforced here.
would be very expensive. render the issue appropriate for
judicial review."
I: Is this case ripe for review
when the law at issue hasn’t
actually been enforced yet?
United Public Workers v. F: a lawsuit was filed by a The claims of these πs are not a case is considered "ripe" for
Mitchell, 330 U.S. 75 (1947) P. group of federal workers ripe for judicial review. federal Ct. purposes when:
70 [similar to Poe] challenging the constitutionality The π here clearly seek advisory (1) the issues presented are
of the Hatch act of 1940, opinions upon broad claims a appropriate for judicial decision
which prevented federal hypothetical threat is not and;
employees from taking "any enough. (2) the parties would face
active part in political [But, πs actually submitted hardship if the ct. declined to
management or political affidavits stating specifically hear the case.
campaigns". The π sought a the activities they would take
declaratory judgment for the part in.] Ct.’s Perception of Inevitability
law violated their First of Enforcement is Key!
Amendment rights.

International F: A group of resident aliens of These πs claims are not ripe a case is considered "ripe" for
Longshoreman's & the U.S. sued to ensure that they for judicial review. federal Ct. purposes when:
Warehouseman's Union local would be able to return the U.S. The ct. found that the situation (1) the issues presented are
37 v. Boyd, 347 U.S. 222 after leaving to go to Alaska to was "hypothetical" and appropriate for judicial decision
(1954) P70: [similar to Poe] obtain work. The alien suit to concluded that "determination and;
enjoin US immigration officers of the scope and (2) the parties would face
from preventing a return to the constitutionality of legislation hardship if the ct. declined to
U.S. after working Alaska, in advance of its immediate hear the case
which at this time was merely a adverse effect in the context of
U.S. territory. a concrete case involves two Ct.’s Perception of Inevitability
remote and abstract an inquiry of Enforcement is Key!
I: Is this case ripe for review for the proper exercise of the
when the law at issue hasn’t judicial function."
actually been enforced yet? [But, who can sue for these πs if
they cannot re-enter the U.S. to
bring suit?]
24
Regional Rail Reorganization F: 8 major railroads brought a The S. Ct. held that the case a case is considered "ripe" for
Act Cases, 419 U.S. 102 (1974) lawsuit challenging the was ripe, concluding: "where federal Ct. purposes when:
p. 71: [similar to Abbott] conveyance of their property to the inevitability of the (1) the issues presented are
Conrail. operation of a statute against appropriate for judicial decision
The Dist. Ct. found the case not certain individuals is patent, it and;
justiciable on ripeness grounds is a relevant to the existence of (2) the parties would face
b/c the reorganization plan had interest controversy that there hardship if the ct. declined to
not yet been formulated and will be a time delay before the hear the case.
special ct. had not yet ordered disputed provision will come
the conveyances. into effect." Ct.’s Perception of Inevitability
of Enforcement is Key!
Lake Carriers Association v. F: A state law prohibited the Even though enforcement was a case is considered "ripe" for
McMullen, 406 U.S. 498 discharge of sewage from boats. many years in the future the ct. federal Ct. purposes when:
(1972) p. 71: [similar to Abbott] Πs challenge the statutes found that the suit was ripe b/c (1) the issues presented are
validity. State officials it was inevitable that the law appropriate for judicial decision
announced that they would not would be enforced and that as a and;
enforce the law until land-based result the boat owners had to (2) the parties would face
pump-out facilities would be begin installing new facilities hardship if the ct. declined to
available. on their boats in anticipation of hear the case.
the time when the law would be
I: Is this case ripe for review implemented. Ct.’s Perception of Inevitability
when the law at issue hasn’t of Enforcement is Key!
d. Mootness: The 4th Major Justiciability Doctrine

• a π must present a live controversy at all stages of federal ct. litigation.
• If anything occurs while a lawsuit is pending to end the π's injury, the case is to be dismissed as moot.
• Also, if the party settles the matter, a live controversy obviously no longer exists.
• If a challenged law is repealed or expires, the case is moot (ex. Ex Parte Yerber).
• Exceptions to the mootness doctrine:
o (1) wrongs “capable of repetition yet evading review”.
o (2) a second major exception to the mootness doctrine is Voluntary cessation.
o (3) a properly certified class-action suit may continue even if the named πs claims are rendered
moot, so long as the members of the class have a live controversy.
⋅ Moore v. Ogilvie
⋅ Roe v. Wade
⋅ Defunis v. Odegaard
⋅ Friends of the Earth, Inc. v. Laidlaw
Environmental Services
⋅ United States Parole Commission v. Geraghty
25
Moore v. Ogilvie, 394 U.S. 814 F: An Illinois law required a The S. Ct. granted standing in Suits which are capable of
(1969) P. 72: [elections and new political party to obtain the case in spite of the fact that repetition yet evading review
"the capable of repetition yet petitions from 200 qualified it was technically moot b/c "the due to the nature and length of a
evading review" exception to voters in each of at least 50 case was capable of repetition, judicial proceeding are
the mootness doctrine] counties in order to be included yet evading review." justiciable despite technical
on an election ballot. In 1968 New elections will have the mootness.
the πs filed petitions for same problem.
inclusion on the ballot, but were
denied this b/c they did not meet
the requirement for the number
of signatures in each county.
They immediately filed suit, but,
of course, the election was over
by the time the S. Ct. heard the
case.
I: Are the π’s claims moot b/c

the election has ended.
Roe v. Wade, 410 U.S. 113 F: Roe, a TX resident, sought to This π had standing in spite of Suits which are capable of
(1973) P. 72: ["the capable of terminate her pregancy by the fact her case was technically repetition yet evading review
repetition yet evading review" abortion. Texas law prohibited moot b/c "pregnancy provides a due to the nature and length of a
exception to the mootness abortions except to save the classic justification for a judicial proceeding are
doctrine] pregnant woman's life. conclusion of non-mootness. It justiciable despite technical
At a time she filed her suit in truly could be capable of mootness.
1970 she was in the first repetition, yet evading review.
trimester of her pregnancy and
seeking an abortion. When the
S. Ct. decided her case in 1973,
she was no longer pregnant.
I: Are the π’s claims moot b/c

she is no longer pregnant?
Defunis v. Odegaard, 416 U.S. F: DeFunis was denied Per Curiam: This π will never Where the legal contention
312 (1974) P. 73: [Acceptable admission to the UW Law again be required to attempt to between the parties ceases to be
Voluntary Cessation, WA law School despite test scores that admission into this law school, “definite and concrete” and no
school says he can finish] were higher than some of the and so the Q is certainly not longer “touch[es] the legal
minorities admitted. The π a capable of repetition so far as he relations of parties having
white male was denied is concerned. This case adverse legal interests" it is
admission to the University of therefore in no way presents the moot.
Washington school of Law he exceptional situation in which
filed suit challenging his denial the doctrine might permit a
that mission on the ground that departure from the usual rule in
the university's affirmative federal cases that an actual
action program denied him controversy must exist at all
equal protection. The π received stages of appellate or certiorari
a preliminary injunction was review, and not simply at the
allowed to attend the law school date the action is initiated.
while the suit was pending. But
the time the case reached the S.
Ct. the π is a third-year law
student. The university stay that
he would be allowed to finish
school the matter what the ct.'s
ruling.
I: Is π’s case moot and therefore

outside the scope of judicial
review?
26
Friends of the Earth, Inc. v. F: An environmental group is O’Connor: no, the ∆'s A ∆'s voluntary cessation of
Laidlaw Environmental suing the Laidlaw Corp. for voluntary achievement of allegedly wrongful actions does
Services, 120 S. Ct. 693 (2000) declaratory and injunctive, the compliance and facility closure not make a lawsuit moot unless
P. 74: [In order to moot a case holder of a National Pollutant do not automatically moot this it is absolutely clear that the
∆’s voluntary cessation must Discharge Elimination System case. The ∆ bears the burden of allegedly wrongfully behavior is
make it absolutely clear that permit based on a citizen suit proving to the trial ct. that there not expected to recur.
the allegedly wrongful provision of the Clean Water is no reasonable chance that it
behavior could not be expected Act, alleging that Laidlaw could resume its violations. The The ct. is attempting to prevent
to recur] violated Mercury discharge ∆ must show that it is absolutely polluters from simply stopping
limits. During the course of the clear that the allegedly wrongful allegedly wrongful activities in
Invalid Voluntary Cessation lawsuit, which went on for behavior could not reasonably order to moot a lawsuit and then
several years, the ∆ Laidlaw be expected to recur. resuming the wrongful activities
Corp. voluntarily achieved as soon as the lawsuit has been
compliance with its NPDES dismissed as moot.
permit and also “closed” its
offending facility. DP: This exception is especially
important to the ct.s b/c it helps
I: Is π's suit moot b/c of avoid the type on-again off-
Laidlaw's sudden compliance again dispute that ties up ct.
with the Clean Water Act? resources without bringing
finality to the case.
U.S. Parole Commission v. F: Federal prisoner is No, this case is not moot b/c a The claims in a class action do
Geraghty, 445 U.S. 388 (1980) challenging the validity of the dispute remains between the not necessarily become moot if
p. 75: [the class action U.S. parole commission's parole members of the potential class the individual claims of the
exception to the mootness release guidelines, after having and the ∆, federal parole board, representative π become moot.
doctrine] been twice denied parole from a the mootness of the named π's
federal prison. The π sought to case does not prevent the There is a class action exception
Blackmun be the named π to represent the appellate ct.s from considering to the mootness doctrine, were
class of all federal prisoners an appeal of the class the claims of the individual
eligible for parole now or in the certification denial. It is clear representative π become moot
future. The District Ct. granted the controversy over the validity but the claims of the class as a
summary judgment in favor of of the parole release guidelines whole are not moot.
the federal parole board. Π is still a "live" controversy
appealed both decisions, but between petitioners and at least Barnes Says: This looks like
was released from prison while some members of the class prudence usurping Art. III
the appeal was pending. The respondent seeks to represent. constitutional concerns.
other prisoners that would have
been members of the class move At some point there is no case in
to have themselves substituted this claim, as there was never a
as the named πs in the case. class action and the case become
moot for the only real π.
I: Is this attempted class action
now moot b/c the likely named
π no longer has an active case or
controversy against the federal
parole board?
Ripeness Summary
• A case is considered "ripe" for federal Ct. purposes when:

o (1) the issues presented are appropriate for judicial decision and;
o (2) the parties would face hardship if the ct. declined to hear the case
• Ct.’s Perception of Inevitability of The Law’s Enforcement is Key!
o Cf. Poe v. Ullman (State Anti-Contraceptive Law, not enforce for years.)w/ Abbott with Laboratories v.
Gardner (Congress’s recent passage of a pill container labeling act that will be enforced.)
Mootness Summary
• π must present a live controversy at all stages of federal ct. litigation.
27
• If anything occurs while a lawsuit is pending to end the π's injury, the case is to be dismissed as moot [Defunis v.
Odegaard].
• Also, if the party settles the matter, a live controversy obviously no longer exists.
• If a challenged law is repealed or expires, the case is moot (ex. Ex Parte Yerber).
• Exceptions to the mootness doctrine:
o (1) wrongs “capable of repetition yet evading review” [Moore v. Ogilvie & Roe v. Wade].
o (2) a second major exception to the mootness doctrine is Voluntary cessation. [Friends of the Earth,
Inc. v. Laidlaw Environmental Services]
• A ∆'s voluntary cessation of allegedly wrongful actions does not make a lawsuit moot unless it
is absolutely clear that the allegedly wrongfully behavior is not expected to recur.
o (3) a properly certified class-action suit may continue even if the named πs claims are rendered moot, so
long as the members of the class have a live controversy [U.S. Parol Comm. v. Geraghty]
e. The Political Q Doctrine: The 5th Major Justiciability Doctrine

i The Political Q Doctrine Defined
• The S. Ct. has held that some constitutional provisions are left to the political branches of Govt. to interpret
and enforce.
• Although there is an allegation that the Constitution has been violated, the federal ct.s refuse to rule and
instead dismiss the case, leaving the constitutional Q to be resolved in the political process.
• Critics of the political Q doctrine argue that it is wrong to leave some constitutional provisions solely to the
political branches to interpret and enforce.
• But the political Q doctrine is defended on separation of powers grounds.
o The Constitution is seen as assigning certain provisions to the other branches of Govt..
o Moreover, defenders of the political Q doctrine argue that it minimizes judicial intrusion into the
operations of the other branches of Govt. and that allocates decisions to the branch of Govt. that
have superior expertise in particular areas.
⋅ What is a Political Q? The Issue of
Malapportionment
• PQD Issues:
o (1) Malapportionment
o (2) Congressional self-governance Qs
o (3) Foreign policy Qs
o (4) Impeachment
o (5) Military, Commander and Chief Qs (really foreign policy Qs)
 Think policy, what is the appropriate role of the federal judiciary.
 Its en vogue now.
• Baker v. Carr is the most famous articulation of the criteria for determining what is a political Q.
o Baker involves a Q of whether an equal protection challenge to malapportionment of State
legislatures is a non-justiciable political Q.
• Before Baker, challenges to malapportionment were usually based on "the guarantee clause", article IV, §
4 of the U.S. Constitution.
o Luther v. Borden (1849):
 the Rhode Island Legislature had passed an apportionment plan that was grossly unfair.
 As a result a group of Rhode Island citizens sued the Rhode Island Legislature in federal
ct. alleging that the unfair apportionment plan violated article IV § 4 of the U.S.
Constitution, which provides "the U.S. shall guarantee to every state in the union a
republican form of Govt., and shall protect each of them against invasion; and on
application of the Legislature, or the executive (when the Legislature cannot be
convened) against a mastic violence."
 Holding:
28
• this case poses a political Q that cannot be decided by federal Ct.
o "under this article of the Constitution it rests with Congress to decide
what Govt. is the establish one in a state. Force the U.S. guaranteed to
each state a Republican Govt. Congress must necessarily decide what
Govt. is established in the state for it can determine whether it is
Republican or not."
o The S. Ct. has never varied from this holding: cases under the guarantee clause are non-justiciable,
Colgrove v. Green followed this in refusing to adjudicate a challenge to malapportionment under
the guarantee clause.
o The issue and Baker v. Carr is whether the same challenge is justiciable when brought under
the equal protection clause instead of the guarantee clause.
⋅ Baker v. Carr
⋅ Vieth v. Jubelirer (Supp)
Political Gerrymander Cases

Baker v. F: Charles W. Baker and Brennan: Frankfurter: The guarantee clause may not be
Carr, 369 other Tennessee citizens No, a malapportionment This case is exactly the used as a source of a constitutional
U.S. 186 alleged that a 1901 law claim under the 14th same as the guarantee standard for invalidating state
(1962) P. 78: designed to apportion amendment as opposed to clause in action, but an EP claim may be so
[guarantee the seats for the state's a malapportionment claim malapportionment case. used where it does not implicate PQ.
clause General Assembly was under the guarantee clause The πs’ claim here
malapportion virtually ignored. is not always a non- should be deemed a non- Brennan's PQ test:
ment claims Baker's suit detailed how justiciable PQ. justiciable PQ regardless (1) a constitutionally demonstrable
are non- Tennessee's of whether it's basis is commitment of the issue to a
justiciable reapportionment efforts Malapportionment cases the guarantee clause or coordinate political department
political Qs, ignored significant brought under the the 14th amendment's (more constitutional);
but due economic growth and guarantee clause and other due process clause. (2) a lack of judicially discoverable
process clause population shifts within PQ cases are non- Apportionment is manageable standards for resolving
malapportion the state. TN justiciable b/c of the exceedingly complex, it (more prudential);
ment claims apportionment favored delicate relationship and does not lend itself (3) the impossibility of deciding
are not non- rural over urban districts. between the judiciary and to judicial determination. without an initial policy
justiciable the coordinate branches of Brennan violated his determination of a kind clearly for
political Qs] I: Is a malapportionment the federal Govt., and not own test by not non-judicial discretion (more
claim based on the equal the federal judiciary's producing a manageable prudential, but C/P);
Brennan protection clause of the relationship with the and discoverable (4) the impossibility of the ct.s
14th amendment as states. standard for addressing undertaking independent resolution
opposed to the guarantee and redressing these without expressing lack of the
clause of article IV a The Q in this case relates claims. respect due coordinate branches of
non-justiciable PQ? to the relationship Govt. (more prudential);
between the federal (5) an unusual need for
judiciary any state unquestioning adherence to a
legislature not the political decision already made
relationship to the federal (more prudential);
legislature any other (6) Sees potential for embarrassment
coordinate branches of from multifarious pronouncements
federal Govt.. from different branches (more
prudential, but C/P).
29
Davis v. F: The π claimed that The S. Ct. held the claim Political gerrymandering is not always a non-justiciable PQ.
Bandemer, the Republican was justiciable.
478 U.S. 109 dominated Indiana "The standards that we set Three more important areas where the political Q doctrine has
(1986) P. 81 [a Legislature created a forth here for adjudicate been applied:
political political gerrymander, his political (1) challenges to restrictions on congressional membership, or
gerrymander and that this was a gerrymandering claim are the political Q doctrine was rejected;
violates the violation of the equal no less manageable in the (2) challenges to the president's conduct the foreign-policy;
principle one- protection clause of the standards that have been (3) to seize challenges to the impeachment process, where the
person one- 14th amendment. developed for racial political Q doctrine was applied.
vote that was gerrymandering claims."
enunciated in I: Is the Q of whether "Political gerrymandering
Reynolds first this IN re-districting cases are properly
sentence] plan is a “political justiciable under the equal
gerrymander” a political protection clause.”
Q that the ct. cannot
review as a case or
controversy?

Vieth v. F: A group of PA voters Scalia: Stevens: (1) “Political
Jubelirer, 124 is challenging the most Yes, this is a non- We can properly hear and redress racial Gerrymanders” are
U.S. 1769 recent iteration of the justiciable PQ b/c there is gerrymanders, but not political always a non-
(2004) supp. p. congressional districts, no reliable means for gerrymanders?! justiciable PQ, as there
31: [Plurality as drawn by the determining when there The two are one in the same, they are is no reliable test, nor
Opinion: Republican dominated has been a political discriminatory voting lines meant to will there ever be a
counter to PA legislature. gerrymander or for dilute the power of voters who share reliable test, to identify
Davis v. They claim that the map determining the proper specific characteristics. political gerrymanders.
Bandemer is a “political remedy to relieve an Reynolds v. Sims is still the standard, [Scalia]
there is no gerrymander”. The alleged gerrymander. “one person, one vote.”
reliable population figures from Dissent (Souter & Ginsburg): • or
standard to 2000 give PA 19 House “Sometimes the law is that Would adopt a prima facie structure for
identify a representatives. At the the judicial dept. has no brining and maintaining a case for a (2) Currently there is
“political time the new map was business entertaining the political gerrymander. no reliable test for
gerrymander”] drawn the PA legislature claim of unlawfulness.” determining and
was Republican After the elements had be prima facially redressing political
Scalia dominated, as well as the Fails (2) Of the Baker met the burden would shift to the state to gerrymanders, and
office of Governor. Test: a lack of judicially rebut the evidence and to provide legit until such a test is
2002 the plan was discoverable in justifications for the redistricting plan. announced political
passed. πs, registered manageable standards for gerrymanders are a
Democratic voters in resolving it, is at issue Scalia feels that this test does not state non-justiciable political
PA, brought suit here. what it is testing for. Q [Kennedy’s
challenging the new map Breyer: Concurrence].
as a “political Bandemer did not issue a Our country is basically democratic, and
gerrymander,” seeking test for determining when we should start with that as our base. DP: It is unclear what
to enjoin implementation a political gerrymander We cannot count on a severely the end result is under
of the new district lines. has occurred, or how one gerrymandered legislature to right the this line of cases, only
is properly redressed. situation itself, it has a stake in Rehnquist and Thomas
I: Is the Q of whether There is no proper test to maintaining that same unconstitutional fully concurred with
this PA re-districting determine this Q, and it is structure. Scalia, so in the future
plan is a “political outside of our review as it The “anti-apartheid” argument, we the ct. may address a
gerrymander” a political is a “non-justiciable’ shouldn’t allow an entrenched minority particularly egregious
Q that the ct. cannot political Q. to monopolize political power in a state. case of political
review as a case or Scalia says it would be impossible to tell gerrymandering, a la
controversy? when a minority has illegally entrenched Kennedy’s
itself. concurrence.
ii The Political Q Doctrine Applied: Congressional Self-Governance

⋅ Powell v. McCormack
Congressional Qualifications & Term Limits
30
Powell v. F: Adam Clayton Powell Warren, C.J.: The text of the Con does not specifically
McCormick, 395 pecked at his fellow No, this is not a non-justiciable PQ b/c commit the issue in the case to
U.S. 486 (1969) representatives from his the text of the Con does not commit to congressional resolution; therefore the
P. 81: [issues unassailable perch in NY's Congress a blanket authority to PQD does not bar the federal ct.s from
relating to the Harlem. Powell had been determine whether to seat a member a deciding a case concerning Congress's
qualifications of embroiled in controversy lacked, the ct.s are not barred from powers to determine its membership.
Congress are not inside and outside deciding issue.
always non- Washington. When Powell "The main principle of our Congress, under Art. I, § 5 is the judge
justiciable failed to heed civil representative democracy is, in of the qualifications of its members, but
political Qs] proceedings against him in Hamilton's words, that the people these qualifications are specified in and
NY, a judge held him in should choose whom they please to limited to the qualifications set forth in
Warren, C.J. criminal contempt. His govern them." Art. 1, § 2.
problems were only Allowing Congress to refuse to seat
beginning. He won reelection duly elected members of Congress who Congress cannot make up new
in 1966 but the House of meet all the qualifications listed in the qualifications, which are not present in
Representatives voted to Con, via a bare majority, would Art. I.
exclude him. effectively nullify the convention's
decision to require a two thirds vote for To allow this would be a back-door
I: May the House of expulsion. exception to the Constitution’s
Representatives exclude a The phrase "to be the judge of the requirement for a 2/3 supermajority to
duly elected member if the qualifications of its own members" expel a duly elected member of Congress.
member has satisfied the indicates that the Congress may judge
standing requirements of age, whether its members adequately meet
citizenship and residence as those qualifications listed in article 1.
articulated in Article I § 2 of
the U.S. Con?
Term Limits Are Unconstitutional
U.S. Term Limits, Inc. v. Thornton (1995):

S. Ct. declared a state law unconstitutional that prevented candidates for Congress from being listed on
the ballot after they had served a specified number of years.
Art. I sets the only permissible qualifications for members of Congress.
Cook v. Gralike, 531 U.S. 510 (2001):
S. Ct. declared unconstitutional a MO law that “instruct[s]” each member of that state’s congressional
delegation “to use all of his or her delegated powers to pass a Congressional Term Limits
Amendment.”
⋅ The Political Q Doctrine Applied: Foreign Policy

• The ct. has declared that “it is error to suppose that every case or controversy which touches foreign
relations lies beyond judicial cognizance.” Baker v. Carr, 369 U.S. 186 (1962) Brennan, J., quoted in
El’Shiffa
• But, the ct. has held most foreign affairs cases to be non-justiciable political Qs.
• Oetjen v. Central Leather Co. (1918)/Goldwater v. Carter Rehnquist, CJ:
o The conduct of foreign relations is committed to the Executive and the Legislature, the political
branches of govt., and the ct.’s should refrain from interfering.
⋅ Goldwater v. Carter
⋅ The Political Q Doctrine Applied: Impeachment and
Removal
⋅ El Shifa (Handout)
⋅ Nixon v. United States
31
Case Name Facts & Issue Holding Etc Rule
Goldwater v. F: In order to begin Rehnquist: Concurrence in Qs involving foreign
Carter, 444 U.S. trade and formal Yes, this is a non- The Judgment policy are generally left to
996 P. 84: relations w/mainland justiciable PQ. Powell: the executive and the
[President’s power China, communist China Art. 2, § 2, cl. 2 provides Would dismiss the legislature to resolve on
to terminate required that the U.S. that the President must case on ripeness their own.
treaties w/out end formal agreements make treaties “with the grounds, as opposed
Senate consent and and recognition of advice and consent of the to political Q
the Political Q Taiwan. This is known Senate”, but there is no grounds.
Doctrine] as the “one China constitutional provision
Rehnquist Policy”. for terminating a treaty. There has been no
President Carter Baker non-justiciable official clash
rescinded the mutual PQ (1): a between the
protection treaty constitutionally coordinate branches
w/Taiwan in recognizing demonstrable of the Executive and
mainland China. commitment of the issue the Legislature on
Congress took no to a coordinate political this Q, until there is
official action, although department (more there is no Art. III
the Senate considered a constitutional); case or controversy.
resolution declaring that This is a foreign
Senate approval is relations case and Concurrence in
necessary for the requires extreme Part Dissent in
termination of any deference to the Part Brennan:
defense treaty, however Executive, especially Congress has taken
no final vote occurred. where the Senate has not no official action.
Art. 2, § 2, cl. 2 provides taken any official action If however there was
that the President must challenging its authority a clash on this Q it
make treaties “with the to terminate the treaty. would be this ct.s
advice and consent of duty to address the
the Senate”, but there is issue.
no constitutional The S. Ct. is the
provision for the arbiter of what the
procedure in terminating Constitution means,
a treaty. so it would be for
the ct. to decide if
I: Is Q’ing of the the President needs
President’s ability to Senate “advice and
terminate a defense consent” in
treaty w/out the advice terminating a treaty
and consent of the if there was in fact a
Senate, where the Senate clash on the issue
itself has taken no between the
official action President and the
challenging the Senate.
termination, a non-
justiciable PQ.
32
El-Shifa v. U.S., F: Al Qaeda bombed our Clevenger: This ct. did not The separation of powers
378 F.3d 1346 African embassies. No, the Con gives the technically say that did not encompass judicial
(U.S. Circuit Ct. Clinton learned these president the power to this case involved a supervision over the
2004) factories had ties to Bin label enemy property and non-justiciable President's designation of
Laden. Clinton labeled targets, as the political Q, rather enemy property, and thus
[Contra this factory enemy “commander and chief” they said there was judicial review of whether
Rehnquist in property and ordered the of the U.S. armed forces. no manageable such designation is proper
Goldwater Simply Navy to cruise missile it. Allowing foreign 5th standard to review is precluded by PQD; such
b/c a case involves Factory owner claimed amendment takings cases President Clinton’s acts are covered by the
the Executive & President Clinton against the U.S. due to actions. President's inherent war
FP does not mislabeled his property legitimately ordered powers.
automatically “enemy property.” The military actions would
mean it’s a non- factory owner sued in unconstitutionally The federal ct.s will not
justiciable PQ.] the U.S. ct. of claims infringe the president’s generally review the
alleging a non- duties as “commander military decisions made by
Clevenger compensated 5th and chief.” the President with in the
amendment taking. However, even if an capacity of “commander
issue presents a political and chief” of the U.S.
I: Is the U.S. subject to Q this does not end the armed forces.
suits in its own ct.s ct.’s inquiry. Some
stemming from damage political Qs must be Courts should not always
to foreign property, heard and determined by use the political Q
labeled by the president the ct.’s. doctrine to avoid deciding
as “enemy property,” The ct.’s will not ex post cases with political
and damaged during the facto review the overtones or Qs that they
course of a military legitimacy of the might categorize simply
action commenced by intelligence the president as political.
the president? Is this a relied on.
non-justiciable PQ?
33
Nixon v. U.S., 506 F: Nixon was a former Rehnquist: White: The power to try all
U.S. 224 P. 86: chief judge in the U.S. Yes, this is a non- Disagrees that this Q impeachments is solely
[Senate’s status as District ct. for the S. justiciable political Q. will always be non- vested in the Senate,
the trier of all District of MS. Baker non-justiciable justiciable, although therefore the judiciary
impeachments and He was convicted by a PQ (1): a controversy is he concurs in the may not review the
the Political Q jury of bribing a local non-justiciable if the Con judgment. Senate's trial of an
Doctrine] DA to drop charges commits the issue to impeached official.
against a local another branch of Govt.. Allowing judicial
A federal district businessman’s son, and Art. 1 § 3 clause 6 of the review would If Nixon's Senate hearing
ct. judge is suing taking bribes himself to Constitution gives the promote checks and had been less
the U.S. Senate do just that. Senate the sole power to balances by ensuring comprehensive, as Justice
alleging that they While in prison Nixon try all impeachments. that the Senate Souter suggested, if the
failed to abide by continued to collect his The word "sole" is of adhered to a Senate had decided
the constitutional salary and benefits as a considerable minimal set of Nixon's fate on a coin toss,
procedure for federal judge. significance. It means procedural standards maybe the ct. would have
impeachment Senate brought 3 articles that only the Senate may and impeachment ruled that it could review
trials, in that his of impeachment for high determine whether trials. the Senate's procedures.
trial was not in crimes an misdemeanors someone should be
front of the “entire against Nixon as a result. acquitted or convicted of Rule XI is DP: Barnes says that PQD
Senate.” The senate used the Rule impeachment. Judicial compatible with the is ultimately a policy
IX impeachment review would be constitutions decision. IT depends on
Rehnquist proceeding, in which inconsistent with checks commanded the who is on the ct. and the
Nixon’s hearing took and balances b/c Senate trial fairness the ct. perceives
place in front of a Senate impeachment is the impeachments. in the political decision,
committee, who Legislature's only check which has already been
published its findings to on the judicial branch. Souter: made by another branch of
the rest of the senate The framers recognized, This case is non- the Govt.. If there is gross
who then voted to in addition to the justiciable b/c we unfairness or the ct. feels it
impeach Nixon. impeachment should adhere to a must act  it will likely
Nixon alleged that this proceeding, there would political decision hear the case [Ex. Powell
violated Art. I, § 3, cl. 6 be a separate criminal that was already v. McCormick], however
of the Constitution, trial that would involve made b/c we should if there are serious risks
which provides “the the judiciary. avoid the potential posed to the courts
Senate shall have sole embarrassment of legitimacy in hearing the
power to try all multiple decisions Q or the ct. perceives
Impeachments. . . . And on a single Q. fairness  the ct. will
no person shall be likely rule the case is a
convicted with-out the Baker Rules 5 & 6: non-justiciable PQD [Ex.
concurrence of 2/3 of However, judicial Nixon v. U.S.]
the members present.” review may be
Nixon was convicted by necessary if the
over 2/3. Senate acted in a
way that seriously
I: Is the Q of how the threaten the integrity
Senate should be of its decision,
required to carry on its convicting, say,
Impeachment upon a coin toss.
proceedings a non-
justiciable PQ?
Summary of Article III Justiciability limits
• (1) No Advisory Opinions (Constitutionally not a case or controversy)
o Ct. will not answer Qs of law submitted to it by the other branches of govt. when there is no case or
controversy involved.
o Some scholars contend that Bush v. Gore was an advisory opinion as the FL election commission had not
finished counting the votes.
 All of the doctrines require that there is a “case and controversy.”
o Advisory Opinion Doctrinal Progression:
 Opinion Of the Justices [Per Curiam]:
34
• Rule: In order for a case to be justiciable and not an advisory opinion, there must also be
a substantial likelihood that a fed ct decision in favor of a claimant will bring about some
change or have some effect.
 Hayburn (1792):
• Rule: S. Ct. will not review cases that ask for advisory opinions b/c they lack the
necessary qualities to create an Art. III “case or controversy.”
 Plaut v. Spendthrift Farms [Scalia] (1995):
• Rule: S. Ct. will not support a law that requires it to reopen cases on which it has
rendered a final judgment, to do so would effectively render the ct’s previous rulings mere
advisory opinions [dismissal by S. Ct. is a final judgment!].
 Nashville, C & St. L. Ry. V. Wallace [Stone] (1933):
• Rule: The case was justiciable “so long as the case retains the essentials of an adversary
proceeding, involving real, not a hypothetical, controversy.”
• (2) Standing:
o Art. III Standing? [Test Post Allen & Lujan]:

 (1) have suffered a concrete injury in fact or be facing imminent harm from a probable injury in
fact;
 (2) π’s harm must be likely traceable to ∆’s conduct, not primarily the result of 3rd parties not
before the ct.;
 (3) it must be likely that a favorable verdict will redress the π’s harm; Redressability must be likely
as opposed to speculative.
o Prudential Standing?:
o Generally, NO 3RD PARTY SUITS.

 Persons may sue to protect the rights of 3rd parties not before the ct. if & only if 2 requirements are
met [Singleton v. Wulff]:
• (1) the relationship between the parties is such that the person suing may effectively advocate
for the right, and;
• (2) there are genuine obstacles to the 3rd party asserting their own rights.
 Newdow Rule:
• It is improper for the federal ct.s to entertain a claim by a π whose standing to sue is founded
on family law rights that are in dispute when prosecution of the lawsuit may have an adverse
effect on the person who is the source of the π's claimed standing.
o NO GENERALIZED GRIEVANCES [E.g. Frothingham & Richardson].
 “The impact on the π is plainly undifferentiated and common to all member of the public.”
 A “prudential principle” preventing standing when the asserted harm is a generalized grievance shared
in substantially equal measures by all or a large class of citizens.
 The prohibition against generalized grievances prevents individuals from suing if their only injury is as a
citizen or taxpayer, concerned with having the government follow the law.
 Exceptions:
• (1) Flast taxpayer exception: In order to attain the taxpayer exception to the prudential rule
against generalized grievances a π must make allegations [has gen. been restricted to 1st
amendment Est. Clause claims.];
o (i) Challenging an enactment under the Taxing and Spending Clause of Art. I, §8 of
the Constitution, and;
o (ii) Claiming that the challenged enactment exceeds specific constitutional
limitations imposed on Congress’ taxing and spending power.
• 2 Flast Nexuses:
35
o (i) A connection between the taxpayer and the allegedly unconstitutional legislation.
o (ii) A connection between the taxpayer and the infringement.
• (2) Statutory right to sue
• (3) Ripeness Summary:
o A case is considered "ripe" for federal Ct. purposes when:

 (1) the issues presented are appropriate for judicial decision and;
 (2) the parties would face hardship if the ct. declined to hear the case
o Ct.’s Perception of Inevitability of The Law’s Enforcement is Key!
 Cf. Poe v. Ullman (State Anti-Contraceptive Law, not enforce for years.)w/ Abbott with Laboratories v.
Gardner (Congress’s recent passage of a pill container labeling act that will be enforced.)
• (4) Mootness Summary
o π must present a live controversy at all stages of federal ct. litigation.

o If anything occurs while a lawsuit is pending to end the π's injury, the case is to be dismissed as moot [Defunis v.
Odegaard].
o Also, if the party settles the matter, a live controversy obviously no longer exists.
o If a challenged law is repealed or expires, the case is moot (ex. Ex Parte Yerber).
o Exceptions to the mootness doctrine:
 (1) wrongs “capable of repetition yet evading review” [Moore v. Ogilvie & Roe v. Wade].
 (2) a second major exception to the mootness doctrine is Voluntary cessation. [Friends of the Earth,
Inc. v. Laidlaw Environmental Services]
• A ∆'s voluntary cessation of allegedly wrongful actions does not make a lawsuit moot unless it
is absolutely clear that the allegedly wrongfully behavior is not expected to recur.
 (3) a properly certified class-action suit may continue even if the named πs claims are rendered moot, so
long as the members of the class have a live controversy [U.S. Parol Comm. v. Geraghty]
• (5) PQD
o Critics of the political Q doctrine argue that it is wrong to leave some constitutional provisions solely to the
political branches to interpret and enforce.
o But the political Q doctrine is defended on separation of powers grounds.
 The Constitution is seen as assigning certain provisions to the other branches of Govt.
 Moreover, defenders of the political Q doctrine argue that it minimizes judicial intrusion into the
operations of the other branches of Govt. and that allocates decisions to the branch of Govt. that
have superior expertise in particular areas.
o Brennan's PQ test:
 (1) a constitutionally demonstrable commitment of the issue to a coordinate political department (more
constitutional);
 (2) a lack of judicially discoverable manageable standards for resolving it (more prudential);
 (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion (more prudential, but C/P);
 (4) the impossibility of the ct.s undertaking independent resolution without expressing lack of the
respect due coordinate branches of Govt. (more prudential);
 (5) an unusual need for unquestioning adherence to a political decision already made (more prudential);
 (6) Sees potential for embarrassment from multifarious pronouncements from different branches (more
prudential, but C/P).
o PQD Issues:
 (1) Malapportionment:
 (2) Congressional self-governance Qs
36
 (3) Foreign policy Qs
 (4) Impeachment
 (5) Military, Commander and Chief Qs (really foreign policy Qs)
• Think policy, what is the appropriate role of the federal judiciary.
CHAPTER 2
THE FEDERAL LEGISLATIVE POWER
Scope Of Congressional Authority
A basic principle of American Govt. is a Congress may act only if there is an express or implied authority in
the Constitution, whereas states may act unless the Constitution prohibits the action.
The 10th amendment declares: “the powers not delegated to the U.S. by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the people.”
In evaluating the constitutionality of any act of Congress, there are always two Qs:
(1) does Congress have the authority under the Constitution to legislate? (this requires defining the
scope of the powers granted to Congress, particularly in Art. I, § 8 of the Constitution.
(2) If so, does the law violate another constitutional provision or doctrine, such as by infringing
separation of powers or interfering with individual liberties?
B/w the late 19th C and 1937 and again in the past decade, concern for state govts has profoundly answered how
the Ct has dealt w/ both Qs. The Ct during these times limited Congressional power to leave areas of
governance to state govts. The Ct also directly protected state sovereignty, concluding that even valid
exercises of legislative power are unconstitutional when they infringe upon state sovereignty. The Ct. has
used the 10th amendment as the basis for this protection of state governments from federal encroachment.
4 Federalism Periods of the Ct.:

(1) early 1800s through 1890:
the ct. broadly defined Congress's powers under Art. I but seldom intervened on federalism
and state sovereignty Qs.
(2) 1890 through 1937:
the ct. limited Congress's powers under Art. I by interpreting the 10th amendment as an
affirmative limit that may restrict the scope of Congress’ proper exercise of authority.
(3) 1930s until the 1990s:
the Ct. broadly defined the scope of Congress's authority under Art. I of the Constitution and
refused to use the 10th amendment as a limit on federal power.
(4) late 1990s until present:
the Ct. has returned to an interpretation of the 10th amendment that limits the scope of
Congress’ proper exercise of authority, when the ct. has determined that Congress’s use
of this authority is restricting state's sovereignty.
Mc v. MD is the most important S. Ct. decision in American history defining the scope of Congress’s powers and
delineating the relationship b/w the fed govt and the states.
A. Introduction: Congress and the States

⋅ The Framework for Analysis
⋅ McCulloch v. Maryland (Supp)
37
McCulloch In 1816, Congress chartered the Ct held that Congress had the power to Under the necessary and
v. MD 2nd Bank of the US. In 1818, incorporate the bank and that MD could proper clause, Congress
(1819) the MD passed legislation to not tax instruments of the Natl. Govt. may enact legislation so
CJ Marshall impose taxes on the bank. employed in the execution of constitutional long as it ends are
p. 93 McCulloch, the cashier of the powers. Marshall noted that Congress legitimate under the
Baltimore branch of the bank, possessed unenumerated powers not Constitution and the
refused to pay the tax. explicitly outlined in the Const. Marshall legislation is appropriate
also held that while the states retained the and plainly adapted to
I: The case presented two Qs: power of taxation, "the Const and the laws those ends.
Did Congress have the made in pursuance thereof are supreme
authority to establish the bank? they control the constitution and laws of Policy: State govts and
Did the Maryland law the respective states, and cannot be state entities taxing the
unconstitutionally interfere controlled by them." fed Govt. and fed entities
with congressional powers? could conceivably bring
B/c the Const flows directly from the the fed Govt. to its knees
Nugget: people, it, through the Supremacy clause, and create chaos,
(1) the power to create implies trumps the laws of the several states. therefore MD cannot tax
a power to preserve the fed Govt..
Power to create = power to A narrow reading of the Const would
preserve render it useless in the face of changing
(2) a power to destroy, if times a call for flexible interpretations.
wielded by different hand, is Effective federalism necessitates broad
hostile to, and incompatible interpretation of legislative powers, and
with the powers to create and to this federalism necessitates the supremacy
preserve. of fed over state laws.
Power to destroy ≠ preservation
(3) where this repugnance Congress is not expressly granted the
exists, that authority which is S. power to create a bank, it is however
must control, and will not yield granted the power to regulate ISC, and the
to that over which it is S.. power to create a Natl. bank is one such
Power to tax = the power to power that is necessary and proper in order
destroy. to carry into execution the power to
regulate ISC.
“The power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to
create; that there is a plain repugnance in conferring on one government a power to control the constitutional
measures of another, which other, respect to those very measures, is declared to be supreme over that which exerts the
control, are propositions not to be denied.”
• The Constitution and laws of the Union are supreme.

o (1) the power to create implies a power to preserve
 Power to create = power to preserve
o (2) a power to destroy, if wielded by different hand, is hostile to, and incompatible with the powers to
create and to preserve.
 Power to destroy ≠ preservation
o (3) where this repugnance he exists, that authority which a supreme must control, not yield to that over
which it is supreme.
 Power to tax = the power to destroy.
• “It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to
modify every power vested in subordinate government, as to exempt its own operations from their own
influence.”
⋅ What Role Should Concern over Protecting States

Have in Defining Congress’s Power?
o Competing Interpretations of Congress’s powers:
38
• Should Congress's authority, under provisions such as the CC and the spending power in § 5 of the 14th
amendment, be narrowly interpreted to leave more governance solely to the states?
• Or should Congress’s powers be broadly defined without concern for preserving areas for state control?
o Competing Interpretations of the 10th Amendment:
• Should the 10th Am be enforced by the judiciary as a limit on Cong's powers so as to protect state
govts?
• Or should the 10th amendment be seen simply as a reminder that Congress can act only if it has express
or implied authority, while states can act unless the Constitution prohibits the conduct?
o States’ Rights 10th Amendment Arguments:
• Decreasing the likelihood of federal tyranny, enhancing democratic rule by providing Govt. that is
closer to the people, and allowing states to be laboratories for new ideas.
• The states are closer to people and thus more likely to be responsive to public needs and concerns.
o However there's a danger that greater responsiveness increases the dangers of Govt. tyranny, as
predicted by James Madison's faction argument in Federalist number 10.
• The states serve as laboratories for experimentation.
o Critics argue that this is a policy argument to be made to Congress against federal legislation
and not a judicial argument that should be used to invalidate particular federal laws on the
grounds that they unduly limit experimentation.
o Two Key Normative Issues:
• (1) How important is the protection of state sovereignty and federalism?
• Those who oppose judicial protection of states as a limit on Congress’s power argue that Natl.
legislation is needed to deal w/ Natl. problems. The Ct should not circumscribe the scope of Congress’s
authority or use the 10th Am to invalidate fed laws.
• (2) Should it be the judiciary’s role to protect state prerogatives or should this be left to the political
process?
One view is that judicial enforcement of federalism as a limit on Congress is unnecessary b/c the political
process will adequately protect state Govt. interests.
o Wechsler argued that the interests of the states are represented the national political process
and that the nature of that process provides sufficient protection of state sovereignty, thus
making it unnecessary for the cts to enforce federalism as a limit on Congress.
B. The Commerce Power
article 1, § 8 of the Constitution states:

“the Congress shall have the power to regulate commerce with foreign nations, among the several states, and
with Indian tribes.”
4 Federalism Periods of the Ct.:
(1) early 1800s through 1890 [Broad Commerce Power]:
the ct. broadly defined Congress's powers under article 1 but seldom intervened on federalism and
state sovereignty Qs.
(2) 1890 through 1937 [Narrow]:
the ct. limited Congress's powers under Art. 1 by interpreting the 10th amendment as an
affirmative limit that may restrict the scope of Congress’ proper exercise of authority.
(3) 1930s until the 1990s [Broad]:
the ct. broadly defined the scope of Congress's authority under article 1 of the Constitution and
refused to use the 10th amendment as a limit on federal power.
(4) late 1990s until present [Narrow]:
the ct. has returned to an interpretation of the 10th amendment that limits the scope of Congress’s
proper exercise of authority, when the ct. views the use of this authority as restricting state
sovereignty.
The commerce clause has two general purposes:
(1) It provides Congress with the authority to affirmatively regulate all commerce that is not
exclusively founded in finish within the borders of a single state.
39
(2) The commerce clause, without any affirmative declarations by Congress, acts as a limit on the
exercise of state power in the interstate commerce arena.
Throughout these eras, there have been three Qs the ct. has considered:
(1) what is "commerce"?
(2) what does "among the several states" mean?
(3) does the 10th amendment limit Congress? If Congress is acting within the scope of the commerce power,
can a law be declared unconstitutional as violating the 10th amendment?
1. The Initial Era: Gibbons v. Ogden Defines the Commerce Power
⋅ Gibbons v. Ogden
Gibbons v. F: NY Legislature granted a Marshall: The word The federal commerce power
Ogden, 22 U.S. 1 monopoly to Fulton & The NY licensing "among" means extends to all commerce
(1824) p. 103 Livingston for operating requirement for out-of- intermingled with. among and between states and
[Broad steamboats in NY waters; state operators is “Intermingled” foreign nations, with only
Commerce Fulton and Livingston inconsistent with the hints that intrastate commerce having connections
Power: Marshall licensed Ogden to operate a congressional act commerce that solely with a single state
uses the Con's ferry boat between NYC and regulating the coasting affects interstate being unreachable under the
grant to the NJ. Gibbons operated a trade. The NY law is commerce in a way commerce power.
federal Govt. of competing ferry service and invalid by virtue of the the ct. views as
the power to thus violated the exclusive Art. VI, cl. 2 Supremacy significant may be DP:
regulate interstate rights given to Fulton and Clause. Marshall regulated by the Commerce Clause Qs:
commerce as a Livingston by NY. Gibbons developed a clear federal govt. (1) What is commerce?
means to maintained that he had the definition of the word Intercourse, more than merely
invalidate a NY right to operate his ferry b/c it commerce, which included All that Marshall buying and selling.
steam boat ferry was licensed under federal navigation on interstate leaves to the states (2) What does “among the
monopoly.] law as "vessels in the coasting waterways. He also gave is the power to states” mean?
trade." Ogden successfully meaning to the phrase regulate commerce “Intermingled”
Marshall sued for an injunction in the "among the several states" that is wholly (3) What limits does the 10th
NY State ct.s. The S. Ct. in the Commerce Clause. intrastate, that does Amendment Impose?
reversed for Gibbons. Marshall concluded that not have a Congress must act pursuant to
regulation of navigation significant impact a Constitutional grant of
I: Did NY exercise authority by steamboat operators on interstate power. The states may do
in a realm reserved and others for purposes of commerce. "The what is not prohibited by the
exclusively to Congress, conducting interstate completely internal Constitution, when doing so
namely, the regulation of commerce was a power commerce of a does not conflict with valid
interstate commerce? reserved to and exercised state, then, may be exercises of the federal govt.
by the Congress. considered as
reserved to the state
itself.”
The Daniel Ball, 77 U.S. 557 (1871) p. 105:

the ct. accorded Congress broad authority to license ships, even as operate entirely in intrastate
commerce long as the boats were carrying goods that had come from another state or that
ultimately would go to another state.
The ct. explained unsafe ships in intrastate commerce could affect and harm ships in interstate
commerce.
U.S. v. Dewitt (1870) p. 105:
a federal law outlawed the sale of naphtha and other illuminating oils that could ignite at less than
100°F.
The ct. held that the law was "a police regulation, regulating exclusively to the internal trade of the
states."
The ct. declared the law unconstitutional b/c it was "a virtual denial of any power to interfere with
internal trade and business of the separate states."
The Trademark Cases (1878):
the ct. invalidated a federal law that established a federal system for registering trademarks.
40
The ct. concluded that the law was unconstitutional b/c it applied to wholly intrastate businesses and
business transactions and therefore "is obviously the exercise the power not confided the
Congress."
2. The 1890’s – 1937: A Limited Federal Commerce Power

Congressional Power & The 10th Amendment 1890 - 1937: A Limited Federal Commerce Power, A Focus On
Business Stages, & Direct v. Indirect Effects
• The ct. applied the 10th amendment to reserve a zone of activities for exclusive state control and invalidated
federal laws that were w/in Congress’s commerce power that usurped state prerogatives.
• The ct. applied three doctrines:
o (1) a narrowly defined "commerce" (i.e. manufacturing ≠ Commerce)
o (2) it applied a restrictive conception of what is "among the states"
o (3) it held that Congress violates the 10th amendment when it regulates matters left to the state
governments.
• The S. Ct.'s majority during this era was deeply committed to laissez-faire, unregulated economy.
• The hostility to Govt. economic regulation reflected in federalism cases was followed by a parallel in the ct. also
invalidating state laws regulating the economy.
• This era was the first time in American history in which the ct. on a fairly regular basis invalidated important
popular federal and state laws.
a. What is “Commerce”?
⋅ United States v. E.C. Knight Co.
⋅ Carter v. Carter Coal Co.
b. What Does “Among the States” Mean?
⋅ Houston, East & West Texas Railway Co. v.
United States
⋅ A.L.A. Schechter Poultry Corp. v. US
41
Case Name Facts & Issue Holding Etc Rule/DP
U.S. v. E.C. F: Congress passed the Fuller: Harlan [echoes Manufacturing is separate
Knight Co., 156 Sherman Anti-Trust Act in No, manufacturing is Marshall in from "commerce" b/c it
U.S. 1 (1895) p. 1890 as a response to the totally local in character, Gibbons]: Under occurs before any goods are
106: [Narrow public concern in the growth and therefore is not the commerce transported in interstate
Commerce of giant combinations commerce subject to power Congress commerce, and thus the
Power: controlling transportation, Congressional regulation. may remove any federal Govt. may not regulate
manufacturing is industry, and commerce. The Rather, it is a local unlawful manufacturing in and of itself.
local in character, Act aimed to stop the concern subject to local obstructions of
therefore concentration of wealth and regulation. whatever kind to Any effects manufacturing has
Manufacturing ≠ economic power in the hands The federal Govt.'s the course of trade on interstate commerce are
Commerce, of the few. It outlawed "every commerce power should among the states. incidental and indirect.
Commerce Power contract, combination...or not be used so as to The Federal govt.
v. State Police conspiracy, in restraint of interfere with the states has police powers Congress can only suppress
Power] trade" or interstate commerce, police powers, which too, and they trump monopolies within its
and it declared every attempt included “the power of the state police powers. commerce power.
Fuller to monopolize any part of state to protect the lives,
trade or commerce to be health, and property of its Manufacturing DP:
illegal. The E.C. Knight citizens, and to preserve directly effects Commerce Clause Qs:
Company was such a good order and the public interstate (1) What is commerce?
combination controlling over morals.” Manufacturing commerce. Intercourse, not
98 percent of the sugar- ≠ Commerce: manufacturing or production.
refining business in the U.S. Manufacturing is (2) What does “among the
incidental and indirect in states” mean?
I: Is sugar refining terms of its impact on Between more than one state,
commerce, which Congress interstate commerce. not intrastate local activity.
may regulate via its power "Commerce succeeds to (3) What limits does the 10th
under article 1 § 8 of the manufacture, and is not a Amendment Impose?
Constitution? part of it. The power to Congress must act pursuant to
regulate commerce is the a Constitutional grant of
power to prescribe the rule power.
by which commerce shall Congress cannot violate
be governed and is a traditional spheres of state
power independent of the power, like the states’ police
power to suppress power.
monopoly.”
42
Carter v. Carter F: Congress passed the Sutherland: Yes, mining Zones of Activities Production and manufacture
Coal Co., 298 Bituminous Coal is production, it takes for the Federal occur before the goods are
U.S. 238 (1936) Conservation Act of 1935, place before commerce, Govt. and the moved in interstate
[Narrow which was a bit of FDR’s and hence cannot be States: commerce, therefore
Commerce New Deal legislation intended regulated by commerce, Federal Govt. can production and manufacture
Power: coal to combat the Depression. production is local in regulate commerce, are local in character, hence it
mining is akin to The Act set: Max. and Min. character and it is for the but . . . is for the states to regulate
production and coal prices. And required that states to regulate it. The states have production and not Congress.
manufacture, and the coal companies allow the Production is not police powers and
hence is not miners to unionize and intercourse for the the commerce DP:
“commerce” that collectively bargain. Carter purpose of trade. It clause cannot Commerce Clause Qs:
Congress is did not want his Co. to includes transport, circumscribe these. (1) What is commerce?
permitted to comply with act so he sued to purchase, sale, and The impact rules do Intercourse for the purposes of
regulate] p. 108 enjoin the co. from exchange of commodities not apply to trade, not manufacturing or
complying. between the citizens of production and production.
Sutherland different states. manufacture. (2) What does “among the
I: Is mining production or The intent to move these There are stages of states” mean?
manufacture, and hence goods in interstate business; commerce Between more than one state,
outside of Congress’s power, commerce does not is not manufacture not intrastate local activity.
under Art. I, § 8, to regulate subject their means of or production. (3) What limits does the 10th
interstate commerce? production to Commerce is the Amendment Impose?
Congressional disposition of Congress must act pursuant to
regulation. “Mining goods, buying and a Constitutional grant of
brings the subject-matter selling. power.
of commerce into Zone of Activities: Congress
existence. Commerce cannot violate traditional
disposes of it.” spheres of state power, like
the states’ police power.
43
Houston, E. & F: A TX Ry. co. is Hughes [echoes Marshall In a situation Congress may justly regulate
W. TX Ry. Co. v. challenging the from Gibbons]: Yes, where both a state intrastate commerce where
U.S., 234 U.S. constitutionality of the ICC’s TX’s favorable rates to and the Federal intrastate commerce has a
342 (1914) [Out fixing of max rail rates for intrastate trains to the govt. are direct effect on interstate
of Place Case TX rails, regardless of detriment of out of state regulating commerce.
For the Era: whether the trains traveling trains traveling the same commerce, a tie
Congress can on them were TX trains or out relative distances to goes to the Federal DP:
regulate intrastate of state trains. The HEW TX destinations w/in TX was govt. 1890-1937 Ct. Framework
commerce where Ry. charged much higher rail directly injurious to TX was unfairly for Commerce Cases:
it has direct rates for out of state rail travel interstate commerce, as giving a local (1) Zone of Activities:
effects on which entered into or passed such it is a valid exercise advantage to TX There are zones that are
interstate out of TX, than it did for for the federal govt. to set rails, which were in typically reserved for the
commerce] p. 110 similar distances traveled max. rail rates in such some instances states’ police powers.
w/in TX. This scheme circumstances. father away from (2) Impact Rule:
Hughes directly affected commerce. “The power confided to other TX The impact on interstate
The ICC found that the Congress [is] to regulate destinations than commerce must be immediate
interstate rates, when commerce among the out of state points and direct.
compared to the interstate several states. It is the of origin. Merely local activities are not
rates, were unreasonable and essence of this power that, The case is similar subject to commerce clause
unduly injured interstate where it exists, it to Ogden, where regulation.
commerce. The ICC stepped dominates. Interstate Marshall said that This ct. does not like
in and est.’ed max. rates for trade was not left to be intrastate activities legislation geared towards
comparable distances, destroyed or impeded by that have an affect social welfare.
regardless of point of origin. the rivalries of local on interstate (3) Business Stages:
HEW TX Ry. alleges that the govt.” commerce may be Commerce ≠ production,
ICC’s rate fixing is regulated by the manufacture, and even some
unconstitutional b/c it affects federal govt. stages of transport
intrastate rates that are wholly This case involved Barnes thinks:
the purview of state transport rail (1) the ct. is being too
regulation. services: formalistic during this era
Ct. never addressed (2) the ct. is discounting the
I: Is it within the scope of whether this service interests of society
Congress’s power to regulate was commerce it (3) In some cases it does take
commerce “among the states” assumed it was the federal govt.’s action to
to fix max. rail rates for commerce. “fix” the commerce problems,
comparable distances, even if they are local in
regardless of state of origin? character.
44
A.L.A. Schechter F: A NY poultry wholesaler Hughes: Where the ct. determines the effect of intrastate
Poultry Corp. v. is challenging the No, the Live Poultry Code commerce on interstate commerce to be indirect or
U.S., 295 U.S. constitutionality of the Live is unconstitutional, the incidental, Congress cannot constitutionally regulate
495 (1935) Poultry Code, stemming from interstate “stream of the intrastate commerce under the Commerce Clause.
[Indirect Effects its allegation that the act commerce” ended when
from E.C. oversteps Congress’s the chickens reached NY, The interstate stream of commerce ends when the
Knight: Congress commerce power by as that was their final goods reach their State of final disposition, here NY.
may not regulate regulating its business, which place of disposition;
commerce that is is allegedly wholly intrastate hence Schecter’s business DP:
wholly intrastate in character. The Live practices, etc. are for NY Comm. Qs:
in character, the Poultry Code required: The to regulate not Congress. (1) What is Comm.?
“stream of code was designed to assure “So far as the poultry It ends when the goods have reached the State of their
commerce” ends the quality of poultry by here is concerned, the final disposition.
when the goods preventing sellers from flow in interstate (2) What does among the states?
have reached the requiring buyers to purchase commerce has ceased.” Transport across state lines, commerce ends once the
state of final whole coops of chickens, There is a natural and goods are confined to a single state.
disposition] which might contain sick recognized distinction (3) What is the significance of the 10th
Hughes chickens. Industry min. wage, between direct and Amendment?
max. working hours, and indirect effects on There is a protected zone of sovereignty where the
allowed for poultry worker interstate commerce, here States may regulate via their police powers w/out
unionizing and collective the effects, if any, are interference from the federal govt.
bargaining. NYC is the merely incidental and This ct. is conservative; it is hostile to legislation that
largest live poultry market in indirect, so Congress regulates for the social welfare!
the U.S. 96% of the chickens cannot regulate this local
sold there came in from other commerce.
states. A.L.A. bought
chickens from two NY
markets and resold them w/in
the NY market as a
wholesaler. It alleged that its
business was wholly
intrastate and should not be
subject to the Live Poultry
Code.
I: Is regulation of the
purchase standards and
business practices of a NY
wholesaler buying out of state
chickens at intrastate NY
markets and reselling the
chickens w/in the NY market
constitutional under the
Commerce Clause?
Holmes’ “Stream of Commerce” conception of Interstate Commerce:
Est. in Swift v. U.S. (1905), Stafford v. Wallace (1922) and other stockyard cases, where the Federal Govt. was
regulating the activities of intrastate cattle stockyards dealing with interstate cattle, which were intended to
be sold later in interstate trade.
Commerce is a stream and it passes through many states, simply b/c one point of that commerce occurs in a
single state does not mean that the intrastate activity is Immune from congressional regulation.
The ct. did not consistently apply the stream of commerce approach.
Ex. R.R. Retirement Board v. Alton R.R. Co., (1935) [ct. is hostile to the R.R. pension plan b/c it views it as
a social welfare law, & labor regulations are for state police power]):
Ct. declared the R.R. Retirement Act of 1934 unconstitutional, which provided a pension system for
R.R. workers.
R.R. were part of the stream of commerce, and yet the ct. rejected that argument in Alton.
Ct. distinguished this cases b/c the Act was merely to provide for “the social welfare of the worker, and
therefore was remote from any regulation of commerce.”
45
Does the Tenth Amendment Limit Congressional Powers? Or Is It Merely Intended
To Remind Congress That It Must Act Pursuant To A Power Granted By The
Constitution, And That The States May Act When The Constitution Does Not Bar
Them From Doing So?
• The 10th Amendment:

o “The powers not delegated to the U.S. by the Constitution, nor prohibited to it by the states, are
reserved to the States respectively, or to the People.”
• Is the 10th Amendment:
o (1) a judicially enforceable limit on the Federal Govt.’s power, or;
o (2) is it but a “truism” (Darby), simply meant to remind Congress that when it legislates, it must
legislate pursuant to a constitutional power?
⋅ Hammer
⋅ v. Dagenhart
⋅ Champion v. Ames
Roberts’ “Switch in Time that Saved Nine”:

FDR and the ct. were on a collision course.
The nation and FDR wanted progressive legislation to combat the Depression.
The ct., esp. the “Four [Conservative] Horsemen” (Butler, Sutherland, Van Devanter and McReynolds) wanted
nearly absolute laissez-faire capitalism.
In West Coast Hotel v. Parish (1937) Roberts “switched” his vote, thus ending the “4 Horsemen’s” majority and
allowing New Deal legislation to pass the ct.’s scrutiny with more regularity.
3. 1937 – 1990s: Broad & Plenary Federal Commerce Power

⋅ Key Decisions Changing the Commerce Clause
Doctrine
⋅ NLRB v. Jones & Laughlin Steel Corp.
⋅ United States v. Darby
⋅ Wickard v. Filburn
NLRB v. Jones F: Jones is a large Hughes (Quotes “The 4 Congressional power to
& Laughlin Steel multinational steel corp. with Marshall from Gibbons): Horsemen”: Labor regulate interstate commerce
Corp., 301 U.S. 1 many ops in the U.S. and No, the NLRB’s orders practices in the extends to intrastate and
(1937) [Broad Canada. were proper exercises of course of such interstate activities that may
Commerce Its ops are wholly owned and the Federal govt.’s power operations did not burden or obstruct interstate
Power: span the entire gambit of steel to regulate interstate directly effect commerce.
Congressional and iron production, commerce b/c Jones’ interstate
power to regulate transport, sale, and unfair labor practices have commerce. DP:
commerce fabrication. a detrimental effect on If this type of local Commerce Clause Qs:
extends to Jones, in violation of the interstate commerce by production (1) What is commerce?
instances of NLRA, was engaging in causing labor strikes and regulation is Intercourse, more than merely
intrastate unfair business practices by bogging down the nation’s allowed under the buying and selling, includes
commerce that dismissing workers for steel industry. commerce power production and labor relations.
obstruct interstate engaging in union activities. “affecting commerce” the states ability to (2) What does “among the
commerce, such The ct. of appeals denied the means in commerce, or regulate production states” mean?
as regulating NLRB’s orders as exceeding burdening or obstructing via their police “Intermingled.” But, Congress
labor relations] p. the commerce power by commerce or the free flow powers will be may regulate intrastate
120 regulating local labor of commerce. merely an activities that burden
relations, labor being a Congress’s power to afterthought, if that. interstate commerce.
Hughes component of manufacture. regulate interstate (3) What limits does the 10th
commerce is plenary “no Amendment Impose?
I: Were the NLRB’s orders in matter what the source of A truism!
excess of the Federal Govt.’s the dangers that threaten
power to regulate interstate it.”
commerce?
46
U.S. v. Darby, F: The U.S. is prosecuting a Stone: Yes, Congress can Returns to Congress’s commerce power
312 U.S. 100 lumber yard owner for failing regulate labor practices in Marshall’s is plenary, complete in and of
(1937) [Broad & to comply with the FLSA’s manufacturing industries conception of the itself. Shipment of goods
Strong Counter min wage and max hours as these practices have a commerce power, across state lines is
to Hammer: Even provisions. Darby owns a GA direct effect on interstate it’s plenary. commerce; therefore,
if manufacture lumber operation that is not in commerce. Congress’s Explicitly overrules Congress may prohibit goods
itself is not compliance with the FLSA’s . commerce power, within Hammer v. from interstate commerce that
commerce the 25/hr. min wage, its 44/hr. per its permissible spheres, is Dagenhart. violate the minimum
shipment of week max hours provision, plenary. Congress’s requirements of the FLSA.
manufactured and its overtime provision. motives are unimportant, No more exclusive
goods in interstate Lumber from the operation is so long as they do not zones of activity DP:
commerce is, transported in interstate violate the Constitution. for the states’ Comm. Qs:
hence Congress commerce. Darby was Congress also has public police power (1) What is Comm.?
may regulate indicted for these violations policy and police powers regulation of Includes all of the stages of
which goods are of the FLSA. and they may exercise production/comme commerce including labor,
permissible to them through the rce. production, shipment, sale,
ship in interstate I: Is the FLSA a legitimate commerce power. etc.
commerce, Return exercise of Congress's power The ct.’s conclusion is (2) What does among the
to Ogden] p. 123 to regulate interstate unaffected by the 10th states mean?
commerce? amendment, which is Intermingled, having tangible
Stone “but a truism.” The 10th effects on more than one state.
amendment was merely (3) What is the significance
intended to allay state of the 10th Amendment?
fears that Congress would The 10th Amendment is “but
act outside of its delegated a truism” it merely indicates
powers. that Congress must act
pursuant to a grant of
Constitutional power,
including the grant and any
laws that are necessary and
proper for giving effect to the
enumerated power.
47
Wickard v. F: Filburn, a local farmer, Jackson: Death of the idea Congress may regulate
Filburn, 317 U.S. grew wheat on his farm. Yes, the A.A.A. max. that there is no individual production activity
111 (1937) He was give a max bushel wheat quotas are a local arena the ct. under the commerce power
[Broadest Comm. amount under the A.A.A. constitutional regulation cannot reach via b/c this production taken in
Power Ever Was: He exceeded this allotment, pursuant to Congress’s the commerce the national aggregate will
Conduct that by but claimed that the wheat he commerce power b/c even power. Even have a substantial impact on
itself may not grew for personal use on his though Filburn’s conduct, individual interstate commerce.
have a farm for himself and his in and of itself, will have a consumption is
substantial effect livestock should not be slight impact on interstate commerce. Congress can reach activities
on interstate included. Filburn claimed that commerce, this conduct that are not commercial in and
commerce, may if the A.A.A. allotment max on a national scale will Direct v. indirect of themselves, but
still be regulated included the wheat he used have a substantial impact effects distinction is nevertheless have a
under the for personal purposes it was on interstate commerce. out the window! substantial impact on
commerce power an unconstitutional exercise Home-grown wheat interstate commerce.
if these individual of the Commerce power. competes with wheat that Barnes says: The
activities in the And Filburns argument that could be purchased in the ct. is being a slave DP:
national consumption is not market, if all farmers like to the Ogden idea Comm. Qs:
aggregate will commerce. Filburn engaged in this that commerce (1) What is Comm.?
have a substantial extra wheat production for power is plenary Includes all of the stages of
impact on I: Is the A.A.A.’s stipulation personal use there would and is only subject commerce including labor,
interstate of max wheat quotas a be a substantial impact on to constitutional production, shipment, sale,
commerce] p. 125 constitutional exercise of the wheat prices, supply, and restraints other than etc. Everything including
commerce power, even as it demand. the 10th Non commerce.
Jackson relates to wheat that is used amendment. Even includes wholly local
for farmers’ personal use on production that, in and of
their own farms? itself, has a tiny impact on
interstate commerce, so long
as the local production, taken
in the national aggregate,
will have a substantial impact
on interstate commerce.
(2) What does among the
states mean?
Even local activity as long as
it has a substantial affect.
Intermingled, having tangible
effects on more than one state.
(3) What is the significance
of the 10th Amendment?
The 10th Amendment is “but
a truism.” Federalism as
supremacy
⋅ The Meaning of “Commerce Among the States”

o The Civil Rights Act of 1964:
 the law prohibits private employment discrimination based on race, gender, or religion common for
bids racial discrimination by places of public accommodation such as hotels and restaurants.
 Congress enacted this legislation under its commerce clause power.
o The Civil Right Cases, 109 U.S. 3 (1883) p. 138
 Held that Congress pursuant to § 5 could only regulate Govt. conduct and therefore cannot regulate
private behavior under the 14th amendment.
 Commerce clause jurisprudence can reach personal conduct. Where as if we used the 14th amendment
which would not reach persons acting outside spheres of federal and state action
⋅ Heart of Atlanta, Inc. v. US

⋅ Katzenbach v. McClung Sr. and McClung Jr.
48
Case Name Facts & Issue Holding Etc. Rule
Heart of Atlanta F: Congress passed the 1964 Clark: Yes, it is Douglas Concur: Congress has the power,
Motel, Inc. v. Civil Rights Act in part to constitutionally Commerce power under the commerce clause, to
U.S., 379 U.S. ban racial discrimination in permissible for Congress does not do justice regulate local activities that
241 (1964) public accommodations. to prevent places of public to the Paramount could reasonably be seen as
[Broad Testimony in support of the accommodation from nature of the right exerting a substantial
Commerce act include evidence that such discriminating on the basis of the American harmful effect upon
Power: local racial discrimination has both of race, as this is a local people to be free of interstate commerce.
activities that a qualitative and quantitative activity that has a racial
have a effect on interstate commerce. substantial and harmful discrimination. DP Three activities the
substantial Qualitative: It makes it much effect upon interstate A decision based on commerce power can reach:
impact on more difficult for racial commerce. the 14th (1) The channels of interstate
interstate minorities to find lodging and Congress is not restricted amendment would commerce;
commerce can be other accommodations while by the fact that this have been (2) The goods and persons
regulated under traveling from state to state. particular obstruction to preferable [But, that are involved in interstate
the commerce Quantitative: It dissuades interstate commerce was 14th only applies commerce;
power] p. 128 large numbers of minorities also deemed a moral and to state action]. (3) Interstate or local activities
from traveling interstate, social wrong. The power Such a construction that have a substantial impact
Clark which results in a of Congress to promote would put an end to on interstate commerce.
substantially harmful effect interstate commerce also all obstructionist
on interstate commerce as a includes the power to strategies and Comm. Qs:
whole. regulate the local incidents finally close one (1) What is Comm.?
The heart of Atlanta Motel is thereof. How obstructions door on a bitter Includes all of the stages of
readily accessible from two in commerce may be chapter in commerce including labor,
interstate highways into state removed, what means are American history. production, shipment, sale,
highways. The hotel to be employed, is within etc. Even includes wholly
advertises nationally; the sound and exclusive Barnes: local production that, in and
maintains over 50 billboards discretion of the But can’t bring a of itself, has a tiny impact on
and highway signs within Congress. It is subject to 14th am claim where interstate commerce, so long
Georgia. Approximately 75% only one caveat, the means it is personal as the local production, taken
of its guests are from out of chosen by it must be conduct and not in the national aggregate, will
state. Prior to the act, the reasonably adapted to the state action have a substantial impact on
hotel refused to let rooms to end permitted by the interstate commerce.
Blacks, and it wishes to Constitution. (2) What does among the
continue to do so. states mean?
1. whether congress has Intermingled, having tangible
I: Is the Civil Rights Act of a rational basis for effects on more than one state.
1964 a permissible exercise finding that racial (3) What is the significance
of Congress’s power to discrimination affected of the 10th Amendment?
regulate commerce? commerce 2. if it had The 10th Amendment is “but
such a basis whether the a truism.”
means selected to Taxing and spending and
eliminate that evil are block grants might be an
reasonable and alternative, but these acts will
appropriate not reach as many people
and activities as the
commerce power.
49
Katzenbach v. F: The U.S. AG is suing the Clark: Yes, b/c Expands Heart of Congress's commerce
McClung, 379 McClungs for violating the discriminatory practices in Atlanta to reach authority extends to any
U.S. 294 (1964) 1964 Civil Right Act, public restaurants and very local activities public commercial
[Broad stemming from the hotels etc. may be trivial that have some establishment selling goods
Commerce McClungs’ refusal to admit in each individual instance tentative connection that have moved in interstate
Power: Even blacks into their barbecue but in the aggregate they to interstate commerce and/or serving
purportedly local restaurant. The McClung's will have a substantial commerce. interstate travelers.
establishments are own always barbecue a impact on interstate
subject to restaurant located in commerce. Even if the activity DP Comm. Qs:
commerce power Birmingham, Alabama near The only commercial is not commercial (1) What is Comm.?
regulation if they both a state and an interstate activities that are beyond in nature, so long as Includes all of the stages of
have an impact highway. Ollie's has both a the reach of Congress are it will have a commerce including labor,
on interstate dining room and take out. those which are substantial effect on production, shipment, sale,
commerce, such Blacks are only allowed take completely within a interstate commerce etc. Even includes wholly
as purchasing out and are not admitted into particular state, which do when taken in the local non-commercial
food moved in the restaurant. Ollie's not affect other states, and aggregate, it may be activities that, in and of
interstate purchases about $150,000 with which it is not reached by the themselves, have a tiny impact
commerce] p. 130 worth of food annually, 46% necessary to interfere, the commerce power. on interstate commerce, so
of which is the purchased purpose of executing some long as the local activity,
Clark from a local supplier who of the general powers of Strong Counter To taken in the national
procure is it from out of state. the Govt. ALA Schecter aggregate, will have a
The trial ct. found that a It is enough that Congress Poultry: The goods substantial impact on
substantial portion of the food had a rational basis for here, meat, had interstate commerce.
Ollie sells has moved in enacting this legislation, arguably reached (2) What does among the
interstate commerce. the ct. does not need to their final states mean?
The McClung's continued inquire as to whether the destination state, Intermingled, having tangible
their racially discriminatory legislation was the best and under Schecter effects on more than one state.
practices even after the Civil possible means for would have been Very broad even local
Rights Act of 1964, which confronting the problem. deemed “out of the activities are included.
bans such practices in public Social and cultural stream of (3) What is the significance
accommodations. context commerce.” of the 10th Amendment?
The 10th Amendment is “but
I: Does a nominally local (applies Wickard test) a truism.”
commercial enterprise serving
the public fall within the Barnes: the court does not
reach of Congress’s care if they do harm to the
commerce authority when it ollies, they are focused on
sells goods, a substantial commerce only and
portion of which, have moved accumulation tool powerful
in interstate commerce?
Weschlers principle has surfaced again that the polity can take action through the election process
Hodel v. IN, 452 U.S. 314 (1981) [S. Ct. can only knock down Congressional Commerce clause legislation if there
is no rational basis
• Strip mining and federal regulation thereof.
• Holding:
o This law is w/in the scope of Congress’s Commerce authority.
o Must be absolutely no rational basis for the commerce legislation in order to strike it down.
o Any thing having an “effect” not a substantial effect (standard is easing)
o Rational basis is front and center
Three activities the commerce power can reach:

• (1) The channels of interstate commerce;
• (2) The goods and persons that are involved in interstate commerce;
• (3) Interstate or local activities that have a substantial impact on interstate commerce.
50
Perez v. U.S., F: ∆ is one of the Douglas: Yes, b/c while the Barnes: Ct. Congress may reach even local activities,
402 U.S. 146 species commonly activities of loan sharks seems to be through the commerce power, if in the
(1971) [Even known as "loan individually may be saying rational judgment of Congress they have a
federal criminal sharks" which characterized as local, in “Commerce substantial impact on interstate commerce.
statutes can Congress found are aggregate they have a is
criminalize local in large part under substantial impact on everything.” DP Comm. Qs:
offenses that the control of interstate commerce. (1) What is Comm.?
have an effect "organized crime." Three activities the Includes all of the stages of commerce
on interstate commerce power can reach: including labor, production, shipment, sale,
commerce] I: Whether title II (1) The channels of interstate etc. Even includes wholly local non-
of the consumer commerce; commercial activities that, in and of
p. 143 credit protection (2) The goods and persons themselves, have a tiny impact on interstate
act is a permissible that are involved in interstate commerce, so long as the local activity, taken
Douglas exercise by commerce; in the national aggregate, will have a
Congress of its (3) Interstate or local substantial impact on interstate commerce.
power under the activities that have a (2) What does among the states mean?
commerce clause of substantial impact on Intermingled, having tangible effects on
the Constitution. Extortionate credit more than one state.
transactions, though purely Very broad even local activities are included.
interstate, may rationally in (3) What is the significance of the 10th
the judgment of Congress Amendment?
affect interstate commerce. The 10th Amendment is “but a truism.”
⋅ The Tenth Amendment between 1937 and the 1990s

The Short Lived “Flip-Flop”: National League of Cities &Garcia
⋅ National League of Cities v. Usery
⋅ Garcia v. San Antonio Metropolitan Transit
Authority
51
National League F: In 1974, Congress passed Rehnquist: No, these Concurrence The commerce clause does
of Cities v. Usery, amendments to the FLSA of wage determinations are (Blackmun): not empower Congress to
426 U.S. 833 1938. The purpose of the functions essential to The majority adopts regulate states or local
(1976) [Narrow amendments was to regulate separate and independent a balancing test, governments and their
Commerce Power minimum wage and overtime existence of the states, so and does not integral Govt. functions,
Temporary Return pay for state and local Govt. Congress may not effectively rule out which have traditionally been
of 10th employees. The National abrogate the states congressional left to the states or these local
Amendment: League of Cities, as well as otherwise plenary exercises of power governments.
“traditional several states and cities, authority to make them. in all areas of
functions” of states challenged the Both the minimum wage concurrent or Congress, through the
as states cannot be constitutionality of the and maximum hour shared power with commerce clause, may not
reached via the amendments. provisions of the FLSA the states. regulate the “states as states.”
commerce power, will impermissibly
the 10th I: May Congress, acting interfere with the integral Dissent (Brennan): DP Comm. Qs:
Amendment returns under its commerce power, governmental functions Weschler’s Prin. (1) What is Comm.?
as a limit on the regulate the labor market of of the states as states. The Con Includes all of the stages of
Commerce power] state employees, which the Imposing the fair labor contemplates that commerce including labor,
(return to Darby) Tenth Amendment possibly standards act's minimum restraints upon production, shipment, sale,
Rehnquist reserves to the states? wage and maximum hour exercise by etc. Does not include
provisions to the states is Congress of its regulation of “traditional
not within the authority plenary commerce roles” of the states as states.
granted Congress by Art. power lie in the (2) What does among the
1 § 8 clause 3 of the political process states mean?
Constitution. and not in the Intermingled, having tangible
judicial process. effects on more than one state.
(3) What is the significance
Dissent (Stevens): of the 10th Amendment?
Congress has the The 10th Amendment returns,
right under the there are certain protected
commerce power to “zones of activity” in
ensure that all which the states are sovereign.
Americans have fair Through the notion of integral
labor conditions, government functions
including state
employees.
52
Garcia v. San F: A San Antonio Metro Blackmun: Yes, Dissent (Powell): Congress has full authority
Antonio Metro transit Authority employee, Congress may regulate a This issue was just under the commerce clause to
Transit Authority, Garcia, is suing seeking city's mass transit settled by the regulate the traditional, or
469 U.S. 528 application of the fair labor authority’s employer National League of core, functions of the state and
(1985) [Broad standards act to the San employee relations under Cities, and that case local governments not
Commerce Power: Antonio Metro transit the commerce clause b/c should not have withstanding the 10th
rejection of the Authority. The federal Govt. National League of Cities been reversed, stare amendment, the proper
National League of applies the FLSA which "traditional Govt. Decisis is crippled recourse for state protection is
Cities’ “traditional regulates hours, wage, and functions" exception to the (overruled 200 the political process not the
state function” overtime conditions for application of the years of operation) judiciary's application of the
exception to covered employees to San commerce power to the Today's decision 10th amendment.
Congress’s Antonio's Metropolitan states as states is effectively reduces
commerce power] Transit Authority. The MTA unworkable. the 10th DP Comm. Qs:
(overrules Nat’l objects to such an application The "traditional Govt. amendment to (1) What is Comm.?
League of cities) on the ground that the S. Ct.'s function" exception meaningless Includes all of the stages of
Blackmun ruling in National League of impermissibly invited an rhetoric on commerce including labor,
Cities prohibits the federal unelected federal judiciary Congress’s acts production, shipment, sale,
Govt. from regulating the to make decisions about pursuant to the etc. Even includes wholly
ZONE OF states as states, and their which state policies it commerce clause. local non-commercial
ACTIVITY box is traditional and core favors and which ones it Dissent activities that, in and of
hard to define what governmental functions, a dislikes. (Rehnquist): themselves, have a tiny impact
is saying is that it is category in which the MTA The commerce clause by Federalism cannot on interstate commerce, so
too hard to define claims it is included. specific language does not be reduced to the long as the local activity,
state sovereignty provide any special weak essence taken in the national
I: May Congress regulate, limitation on Congress's distilled by the aggregate, will have a
FEDERALISM: through the FLSA, a city's actions with respect to the majority today. substantial impact on
here is that the mass transit authority’s states. The true essence of interstate commerce.
political process employer-employee relations (ANALYSIS is MADE federalism is that (2) What does among the
will be your only under the commerce clause? UP) the states as states, states mean?
protection is federal have legitimate Intermingled, having tangible
supremacy Weschler’s Theory: interests which the effects on more than one state.
The proper protection of national Govt. is Very broad even local
the state's role in the bound to respect activities are included.
federal system is provided even though its (3) What is the significance
by the political process, laws are S.. of the 10th Amendment?
and the state's The 10th Amendment is “but
participation in that a truism.”
political process, not by an
unelected judiciary. (this is the big question
here)
Eras:
(1) Federal Govt. is S.
(2) Laissez-Faire
(3) Social Welfare/National Commerce and correcting the “Great Depression”
(4) “Shared Powers”: Returning certain zones of power to the States, disallowing regulation of non-commercial
activities.
Theories:
Zone of Activities:
2&4
Impact Rule:
3&1
Business Phase:
2
The 4th Era, The Reemergence Of The 10th Amendment Limitations On The Commerce Power:
4. 1990s – ???: Narrowing of the Commerce Power and Revival of the Tenth
Amendment as a Constraint on Congress
a. What is Congress’s Authority to Regulate “Congress Among the States?”
53
⋅ United States v. Lopez
⋅ United States v. Morrison
⋅ Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers

U.S. v. Lopez, F: Lopez, a 12th grade high Rehnquist: No, Congress Dissent (Stevens): Congressional authority to
514 U.S. 549 school student, carried a may not criminalize gun Guns are both regulate pursuant to the
(1995) [the concealed weapon into his possession in public articles of commerce clause extends to
Rehnquist ct. is San Antonio, Texas high school zones in this commerce and only those commercial
not willing to school. He was charged under fashion b/c the act neither articles that can be activities that rationally
apply the Texas law with firearm regulates a commercial used to restrain implicate:
"substantial possession on school activity nor contains a commerce. (1) the channels of interstate
impact" test to premises. The next day, the requirement that the commerce; (Darby)
noncommercial state charges were dismissed possession be connected Dissent (Souter): (2) the instrumentalities,
activities. local after federal agents charged in any way to interstate a rational basis persons, or goods of interstate
crime and Lopez with violating a federal commerce. test should have commerce;
education are for criminal statute, the Gun- The Gun Free School been employed. (3) activities having a
the States to Free School Zones Act of Zones Act does not fall Commercial/Non- "substantial effect" upon
regulate] 1990. The act forbids "any under any of the three Commercial interstate commerce. (this
individual knowingly to categories: distinction looks prong changed in this case)
Substantial possess a firearm at a place (1) it does not regulate the too much like
Impact Test ≠ that [he] knows...is a school channels of interstate Direct v. Indirect DP Comm. Qs:
Non-Commercial zone." Lopez was found commerce; Effects. (1) What is Comm.?
Activity guilty following a bench trial (2) it does not regulate Good education = Includes all of the stages of
and sentenced to six months' persons or things in Good economy  commerce including labor,
Rehnquist imprisonment and two years' interstate commerce; guns are a production, shipment…(not
supervised release. (3) it does not regulate an detriment to inference upon inference)
(The test here is activity that has a education  guns Only includes economic
very important the I: May Congress criminalize "substantial impact" on in schools affect commercial activity.
test changed here gun possession in public interstate commerce: interstate commerce (2) What does among the
again in prong 3 school zones, under its Gun possession ≠ [rational basis]. states mean?
after Perez and commerce power, without economic/commercial Intermingled, having tangible
Holdel moved explicitly regulating any activity Dissent (Breyer): effects on more than one state.
from ANY effect commercial activity Multiple steps to get to The statute falls (3) What is the significance
to Substantial associated with the guns in economic activity is to within the scope of of the 10th Amendment?
effect) Q? attenuated (link too thin) the commerce The 10th Amendment returns,
“inference upon power. there are certain protected
O’Connor- in concurrence inference” (1) The pwr to reg. “zones of activity” in which
will continue to apologize and “The possession of a gun commerce among the states are sovereign.
vote for states rights and in a local school zone is in the several states
Federalism b/c she is wed to no sense in economic encompasses the
stare deices activity that might through power to regulate
repetition elsewhere, local activities that
Thomas- very strongly substantially affect any significantly affect
against substantial effects test sort of interstate interstate
and that the federal commerce.” commerce.
government. (2) Aggregate
Can no longer use the (Wickard)
commerce clause for (3) A rational basis
social regulation has to be test should of been
economic activity (Stat employed.congress
922 not linked to not courts prescribe
economic activity it is commerce pwr.
criminal)
54
U.S. v. Morrison, F: In 1994, while enrolled at Rehnquist: No, the Concurrence Congress may not, pursuant to
120 S. Ct. 1740 VaTech Brzonkala alleged VAWA does not fall (Thomas): The the commerce clause, regulate
(2000) [the that Morrison and Crawford, within Congress's power very notion of a a noncommercial local
Rehnquist ct. is both students and football to regulate commerce b/c “substantial effects” activity solely on the basis
not willing to players raped her. In 1995, gender motivated crimes test under the that it has substantial effects
apply the Brzonkala filed a complaint of violence are not, in any commerce clause is on interstate commerce when
"substantial against Morrison and sense of the phrase, inconsistent with viewed in its nationwide
impact" test to Crawford under Virginia economic activity. the original aggregate.
noncommercial Tech's Sexual Assault Policy. If accepted, the petitioners understanding of
activities.] After a hearing, Morrison was reasoning would allow Congress is DP Comm. Qs:
found guilty of sexual assault Congress to regulate any commerce power. (1) What is Comm.?
Substantial and sentenced to immediate crime as long as the Only Intercourse trade, production,
Impact Test ≠ suspension for two semesters. nationwide, aggregated instrumentalities transport, etc. Commercial
Non-Commercial Crawford was not punished. impact of that crime had and channels activity.
Activity A second hearing again found substantial effects on Dissent (Souter): (2) What does among the
Morrison guilty (poor employment, production, Congress has the states mean?
Rehnquist language/lesser penalty). transit, or consumption. power to legislate Intermingled, but must relate
Morrison's punishment was The Constitution requires with regard activity to commercial activities that
set aside, as it was found to a distinction between that, in aggregate, have substantial impacts on
be "excessive." Ultimately, what is truly national and has a substantial interstate commerce.
Brzonkala dropped out of the what is truly local. effect on interstate (3) What is the significance
university. Brzonkala then (Barnes) court wants to commerce. of the 10th Amendment?
sued Morrison, Crawford, and lmt commerce in nature. Ct. should have Creates an area of shared
Virginia Tech in Federal No inference upon an used a rational powers for the states that the
District Ct., alleging that inference to attenuated. basis test. federal govt. cannot reach.
Morrison's and Crawford's What would congress Ct. provided a lot of
attack violated the Violence have to do to pass this statistical evidence Need a commercial activity
Against Women Act of 1994 test. Dissent wants a of gender with a non-tangential, non-
(VAWA), which provides a return to social welfare violence’s impact attenuated connection to
federal civil remedy for the (Wickard) Problem is on interstate interstate commerce in order
victims of gender-motivated that gender violence commerce (a la to regulate intrastate activity
violence. cannot be brought Heart Of Atlanta) that has a “substantial impact”
another way; Maj draw Return to third era on interstate commerce.
I: Does the VAWA fall line to lmt con pwr. social welfare
within Congress's power to congress should be
regulate commerce? arbiter of data
What is Congress’s Authority to Regulate “Commerce Among the States?”
• In the next case the S. Ct. used its recent decisions restricting the scope of the commerce clause as the basis for
narrowly interpreting a federal law.
• Instead of declaring the law unconstitutional, to avoid these Qs, the ct. narrowly interpreted the federal statute.
• In the second case the ct. upheld the authority of Congress to regulate the channels of interstate commerce
55
Solid Waste F: the U.S. Army Corps of Rehnquist: The Stevens: Under the When administrative
Agency of Engineers has interpreted § Migratory Bird Rule as CWA Congress interpretation of a statute
Northern Cook 404(a) to confer federal stated by the army corps gave the Corps the invokes the outer limits of
County v. U.S. authority over interstate of engineers, in power to define Congress's power, we expect
Army Corps. of waters, which [The interpreting § 404(a), is “waters.” a clear indication that
Engineers, 531 Migratory Bird Rule]: not fairly supported by the Waters of the U.S. Congress intended the
U.S. 159 (2001) (a) are or would be used as Clean Water Act. + territorial seas  result.
[The Rehnquist habitat by birds protected by There is no clear statement these seasonal
ct. is reluctant to Migratory Bird Treaties; from Congress that it ponds, streams, Where an otherwise
accept at face (b) are or would be used as intended § 404 to reach an rivers, wetlands, acceptable construction of a
value an habitat by other migratory abandoned sand and mudflats, etc. statute would raise serious
administrative birds which cross state lines; gravel pit. Damage to constitutional problems, the
agency’s (c) are or would be used as Permitting respondents to migratory birds has ct. will construe the statute to
regulations, made habitat for endangered claim federal jurisdiction a substantial impact avoid such problems and last
pursuant to species; over ponds and mud flats on interstate such construction is plainly
Congressional (d) used to irrigate crops sold falling within the commerce; contrary to the intent of
legislation, when in interstate commerce. "Migratory Bird Rule" therefore, sites such Congress.
those regulations The site involved in this case would result in a as the one in the
reach the outer qualified as "waters of the significant impingement present case, a will DP Comm. Qs:
limit of U.S." based upon the of the states’ traditional in aggregate, have a Comm. Qs:
Congress’s power following criteria: and primary power over substantial impact (1) What is Comm.?
and Congress has (1) the proposed site had been land and water use. on interstate Intercourse trade, production,
not clearly stated abandoned as a gravel mining We do not have to commerce. transport, etc. Commercial
that it approves of operation; address the Holmes in MO v. activities.
the regulations] (2) the water areas and spoil constitutionality of § Holland said that (2) What does among the
piles had developed a natural 404(a) of the CWA b/c the federal interest states mean?
Rehnquist character; the Corps has in protecting Intermingled, but must relate
(3) the water areas are used as impermissibly expanded migratory birds was to commercial activities that
habitat by migratory birds the definition of of the 1st have substantial impacts on
which cross state lines. “navigable waters” under magnitude. interstate commerce.
The Corps refused to issue a the CWA. Barnes Diss: (3) What is the significance
§ 404 permit. § 404(a) Analysis would be of the 10th Amendment?
authorizes the respondents to Barnes: 1. def army core attenuated and it is Creates an area of shared
regulate the discharge or fill of eng had that moved the worst kind b/c it powers for the states that the
material into "navigable beyond the lang of the is attenuated in the federal govt. cannot reach.
waters" which the statute statute 2. whether worst extent. This Supremacy is not always S.
defines as "the waters of the congress had pwr to create shows the problem there are some limits on the
U.S., including the territorial the act? that the maj in federal govt., e.g. 10th
seas." lopez and Morrison Amendment.
1. Army core outside claim is pre-textual.
I: Whether the provisions of ambit of pwr to create any (Stevens has The dissenters are at a loss
§ 404(a) may be fairly waters as in statute. Core always been for they are trying to fit their
extended to the waters took def too far and in accumulation) arguments w/in the majority’s
involved in this case, and if application upset frameworks from Lopez
so, whether Congress could commerce pwr. [commercial activities] and
exercise such an authority 2. Court said no need to Morrison [show us the stats].
consistent with the commerce get to that question b/c
clause. operating on the fringes Ex. In Morrison the dissenters
used the statistical data that
showed an interstate impact
like in Heart of Atlanta.
In Solid Waste Stevens

attempts to show that
migratory birds are involved
in commercial activities.
56
Pierce County F: The Hazard Elimination Thomas: Yes, it is well Congressional Congress is empowered to
WA v. Guillen, Program provides state govt.s established that the authority to regulate the instrumentalities
123 S. Ct. 720 with funding to improve the commerce clause gives regulate pursuant of interstate commerce and
(2003) most dangerous sections of Congress the authority to to the commerce the channels of interstate
[unanimous their roads. To be eligible regulate the use and clause extends to commerce even though the
decision] for funding, a state must channels of interstate only those threat protected against may
undertake a thorough commerce. commercial come only from intrastate
Thomas evaluation of its public Congress is empowered to activities that activities.
roads. This led to concerns regulate and protect the rationally
This case is not a that the absence of instrumentalities of implicate: DP Comm. Qs:
distruption of the confidentiality would increase interstate commerce, or (1) the channels of (1) What is Comm.?
rule but an easy the liability risk for accidents persons or things in interstate Intercourse trade, production,
application b/c that took place at hazardous interstate commerce, even commerce; transport, etc.
this is a channel locations before though the threat may (2) the (2) What does among the
and improvements could be made. come only from intrastate instrumentalities, states mean?
instrumentality Ultimately, Congress activities. persons, or goods Intermingled, but must relate
provided that materials Congress could of interstate to commercial activities that
"compiled or collected" for reasonably believe that commerce; have substantial impacts on
purposes of the program adopting a measure (3) activities having interstate commerce.
"shall not be subject to eliminating any a "substantial (3) What is the significance
discovery or admitted into unforeseen side effects of effect" upon of the 10th Amendment?
evidence in a Federal or the information gathering interstate Creates an area of shared
State Ct. proceeding." In requirement of § 152 commerce. powers for the states that the
1996, Guillen's wife died in result in more diligent federal govt. cannot reach.
an automobile accident in a efforts to collect the This case shows:
Pierce County, WA relevant information, more That the 4th era ct. is not
intersection. While WA had candid discussions of radically departing from the
previously been denied hazardous locations, better 3rd era.
funding for the intersection informed decision- The 4th era ct. is divided into
where the accident occurred, making, and, ultimately those that want a more
its 2nd request was granted greater safety on our narrowly tailored substantial
after the accident. Guillen nation's roads. effects test and those that
first sought information on would accept nearly anything
the intersection and then under the substantial effects
asserted that the state had test.
been negligent in failing to The ct. here used the 1st
install proper traffic controls. prong, the channels prong.
WA sought to protect itself The 4th era ct. does not like
under the Program. The WA congressional regulations
S. Ct. held that the Program that are pretexts for social
exceeded Congress's power welfare laws.
under the Constitution.
I: Is 23 USC § 409 a proper

exercise of Congress's
authority under the commerce
clause?
b.
Does the Tenth Amendment Limit Congress’s Authority?
⋅ New York v. United States
⋅ Printz v. United States
⋅ Reno v. Condon
Power Vacuum Theory- (Chemerinsky) Anytime there is a prob where the fed/state share an interest who
ever steps in first to reg should be shown deference. (Gonzalez) perhaps state should be shown deference
unless the fed gov can find a PATENT violation of the constitution and the SAME should be true protecting
the federal government (if they jump in first) we should “deffer” or presume it commerce scheme unless
paitently distruptive to rights (Barnes) will prob not buy this due to problems of implementation/ works to fill
a gap and then get messy and someone has to win Barnes thinks the court is not interested in this would help
resolve problems in Gonzales /NY/Printz
57
NY v. U.S., 505 U.S. 144 F: Congress passed the O’Connor: (uses Hodel for 10th Am White/Stevens Dis in Part: Agrees Congress does
(1992) Low Level Radioactive lmt) with the majority's holding that the not have the
Waste Policy (1) Congress can create certain monetary and access incentives are authority to
[Federal govt. cannot Amendment Act of incentives for states to comply with constitutional, but also feels that the commandeer
force the states to 1985. congressional regulation, however "take title" provision should have state govts by
implement federal The act has three Congress may not simply been declared a constitutional. forcing them to
regulatory programs, this provisions regarding commandeer the legislative processes implement
interferes with state govt. the radioactive waste of the states by directly compelling The Act is not the Congress congressional
accountability] disposal: them to act in enforce a federal commandeering the states; rather, regulatory
O’Connor (1) monetary incentives regulatory program. this was a hard fought compromise schemes.
for states to open their between the states where the Federal
Barnes: this act came as own waste sites; Congress may, however, urge a state Govt. was the referee  The group
a proposal from the (2) access incentives to adopt a legislative program that created the Act was the National
national governors allowing states without consistent with federal interest, two of Governors’ Assn. Lmts not so
society the states went to waste sites to be denied these methods are of particular (i) the practical aspect of NY's much a zone of
the gov and asked for access to sites in other relevance here: position is that other states with activities.
legislation on this. states; (i) under Congress is spending power, disposal sites must accept NY's
(3) a "take title" Congress may attach conditions on the waste, where they wish to or not. What’s wrong
Problem for NY is that provision requiring receipt of federal funds (Ex. S.D. v. This impinges the sovereignty of with allowing
they cannot comply w/the states to take ownership Dole) the other states. commandeering?
leg requested of waste generated (ii) where Congress has the authority to Not generally
within their borders after regulate private activity under the The ct.'s distinction between federal approved but if
Here there is a Hobson’s January 1, 1996 if the commerce clause, we of recognize regulation of the states and private there is a
choice b/c either way not state has been unable to Congress's power to offer states the parties for general purposes, as compelling
good. There is a federal arrange for proper choice of regulating that activity opposed to regulation solely of the interest the states
reg scheme that disposal before that date. according to federal standards or having activities of states, has no support in should be
commandeers state reg state law preempted by federal our 10th amendment law. allowed to do so.
scheme NY & two NY counties regulation. Congress can still pass this law as a If compelling
are seeking to have the taxing and spending provision a la and narrowly
act declared invalid as an Where the federal govt. compel states to SD v. Dole! tailor program
impermissible invasion regulate, the accountability of both we should let
of state sovereignty, i.e. state and federal officials is Congress could also regulate waste them do it.
A violation of the 10th diminished. producers directly. Thus, should a
amendment. state fail in this regard, Congress From Maj: the
The monetary and access incentives could keep all waste generated in gov talks about
I: created by Congress for states to open NY from being shipped out of the compelling
(1) (Art 1 question) waste sites are constitutional; however state. interest standard.
Does congress have the the "take title" provision is Stare Decisis: Barnes thinks If we have a
pwr under Art 1? unconstitutional. dissent is wrong here compelling
(2) Whether there is a The majority has eviscerated the interest in
province for states in 10th The Constitution simply does not give holding of Garcia, which held there creating a
Amendment? Congress the authority to require the aren’t traditional functions of the national scheme
states to regulate. If a federal interest is states as states dictated by the 10th this ought to be
sufficiently strong to cause Congress to rather the states must seek protection ok. B/c these are
legislate, it must do so directly; it may of their sovereignty w/in the hard problems
not conscript state governments as its political process. with grave
agents. [O’Connor responded that Garcia consequences.
involved the regulation of
(2) Where Congress exceeds its individuals, while NY v. US
authority relative to the states the involves the federal govt.
departure from the constitutional plan commandeering the states in order to
cannot be ratified by the "consent" of enact federal regulatory programs.]
the state officials.
Barnes 2 Qs:
(1) Is it the end of federalism for the states to enact federal regulations?
Why not uphold the radioactive waste law based on the states’ waiver of sovereignty.
(2) Why not allow this when the federal govt. can show a “compelling interest?”
58
Case Name Facts & Issue Holding Concurrence/Dissent Rule
Printz v. U.S., F: 1993 Congress amended the Scalia: Yes, the Brady Act Thomas [Concurrence]: The federal
521 U.S. 898 Gun Control Act of 1968 by impermissibly compels state and If the 2nd Amendment is a govt. may not
(1997) passing the Brady Handgun local CLEOs to implement a federal personal right to bear arms a compel the
Violence Prevention Act. regulatory program. colorable argument exists that states to directly
[Federal govt. There is no constitutional text the federal Govt.'s regulatory enact or
cannot The Act requires the AG to speaking to this precise Q, the scheme, at least as it pertains administer a
commandeer establish a national instant answer to the petitioners challenge to the purely intrastate sale or federal
the states background check system by must be sought in: (1) historical possession of firearms, runs regulatory
executive November 30, 1998 and creates analysis, in (2) the structure of the afoul of that amendment's program, nor
officials in interim provisions until the Constitution, and (3) in the protections. “b/c does not may the Federal
order to system goes online. jurisprudence of this ct. believe in the substantial Govt.
implement Under these interim provisions, Historically Congress’s direct affects test.” Would like a commandeer
federal state and local law enforcement compulsion of state officials has complete return to “zone of the states
regulatory personnel must do background involved state ct. judges enforcing activities” “business phase” officers to
programs, even checks before issuing permits federal laws, there is a lack of or a return to the 2nd era administer its
if the to purchase firearms. statutes imposing obligations on regulatory
commandeerin Under Act, fire arms dealers the states’ executive officers, and Stevens: When Congress programs.
g is temporary are required to submit Brady this suggests an absence of such exercises the powers
in nature] forms to the local chief law power. delegated to it by the
enforcement officers, who are Constitution, it may impose
Scalia then obligated to make Congress must act pursuant to affirmative obligations on
"reasonable efforts" within enumerated powers. executive and judicial officers
(original five days to determine whether of state and local
meaning or the sales listed on the forms are Art. II, § 2, Per the Constitution, it is governments as well as
framers intent kosher. the president that "shall take care ordinary citizens.
analysis) Printz and Mack are CLEOs that the laws be faithfully executed," Textualist analysis (what
who challenge the not the individual state's executive does the 10th am say) How
Barnes: constitutionality of Brady's officers. does it effect the
expands NY interim provisions. relationships discussing now
by saying you The Brady act effectively transfers Art. 1, § 8, grants the
also can’t I: Whether the interim this responsibility to thousands of Congress the power to
commandeer provisions violate the CLEOS, who are left to implement regulate commerce among the
state Constitution. the program without meaningful states.
employees presidential control.
Barnes Additionally, the necessary
I: can fed gov using the nec & NY v.U.S. applies here: and proper clause grants
All you need Proper clause use this "The federal Govt. may not compel Congress the authority "to
for the fed temporary measure? the states to enact or administer a make all laws which shall be
according to federal regulatory program." necessary and proper for
the dissent is carrying into execution the
Art I pwr and Barnes: in order to have a The federal Govt. may neither issue foregoing powers."
the nec and dialogue you need a middle directives requiring states to Weschler’s Theory: The 10th
proper clause. ground b/t supremacy and address particular problems, nor amendment imposes no
The dissents states rights here the views are command the state's officers, or restriction on the exercise of
analysis is that polarized. Here the court says those of their political subdivisions, delegated powers (Ex. Darby
the 10th am all or nothing. NO balancing to administer or enforce a federal & Garcia, Wechsler’s
pwr is test. Does the constitution regulatory program. Theory).
nullified once require that we live in polar The 10th amendment is a
art I pwr opposites? NO it is just meant truism.
established b/c to be interpreted. The
10th am pwr problem now the supremacy If Congress believes that such
does not folks art 1 nec proper state a statute will benefit the
textually have here that the protection for people of the nation, and
the pwr to the states is Wechsler. serve the interests of
take on Art I NEVER GOING TO WORK. cooperative federalism better
and nec No state alone will be pwr than enlarge federal
proper. enough to protect int unless bureaucracy, we should
aliened with others respect both its policy
judgment and its appraisal of
the constitutional power.
59
Case Name Facts & Issue Holding Additional Points Rule
Reno v. F: Congress passed the Drivers Rehnquist: No, Congress has not DP What the Ct. likes States are to
Condon, 120 Privacy Protection Act of 1994 “commandeered” SC under the DPPA and dislikes in comply with
S. Ct. 666 regulating the dissemination of and has not violated the 10th commerce power constitutionally
(2000) personal information provided to Amendment b/c Congress is regulating regulation: valid legislation
states by drivers license SC as a “commercial entity” not as a regulating state
[Congress can applicants. state. Dislikes: activities, even
regulate the The act generally prohibits any Pre-textual (i.e. social when
states as [trader of information] state Drivers’ info in this context is an welfare) regulation compliance
“commercial DMV, officer, employee, or article of commerce (channels and [activity must be means incurring
entities.” contractor thereof from instrumentalities), its sale or release commercial] additional cost
w/out "knowingly disclosing or into the interstate stream of business is to be borne by
violating the otherwise making available to sufficient to support congressional Commandeering the the states.
10th any person or entity personal regulation. states to implement
amendment.] information about individuals federal regulatory Congress can
obtained by the department in A state wishing to engage in certain programs [NY and regulate the
Barnes: not connection with a motor vehicle activity must take administrative and Printz] (Reno states via the
aimed at the record." sometimes legislative action to comply exception, where the channels and
state but the The act also regulates the resale with federal standards regulating states are acting as instrumentalities
economic and disclosure of drivers’ activity, this is a commonplace commercial entities) prongs of the
activity and personal information by private occurrence that presents no commerce
another dist persons who have obtained that constitutional defect (SC v. Baker). Likes: power so long as
b/t Reno and information from a state DMV. Regulations dealing they do not
NY/Printz it SC's law conflicts with the act. The act regulates the states as the with the channels and unduly infringe
is B/c of this conflict Condon, the owners of databases. It does not instrumentalities of on the states as
affirmatively SC AG, filed suit in federal require SC to enact any laws or commerce states.
requiring district ct. seeking to have the act regulations, and it does not require state
something and declared invalid under the 10th officials to assist in the enforcement of Regulating the states as Congress can
prohibiting and 11th amendments. federal statutes regulating private commercial actors, as regulate the
something SC claims that the DPPA individuals. opposed to regulating states as
NY/Printz compels the states to enforce them as sovereign “commercial
required action complex federal regulations in The act is also generally applicable as actors. entities.”
(take violation of NY v. US and Printz it regulates both the states and the
title/backgroun v. US. private businesses that resell this private
d) here no information obtained from DMV's.
affirmative I: Has Congress
duty placed on “commandeered” SC under the
the state it is DPPA thus violating the 10th
broad. Amendment?
Where Are We Currently In Commerce Clause Jurisprudence?:
Doctrinal Progression & Commerce Clause Qs:

(1) What is Comm.?
Econ. Activity [Gonzalez] Intercourse trade, production, transport, etc. Commercial Activity. [Ex.
Lopez & Morrison]
(2) What does among the states mean?
Instrumentalities, Channels, Intermingled, but must relate to commercial activities that have substantial
affects [very hard to reach] on interstate commerce. [Ex. Guillen]
(3) What is the significance of the 10th Amendment?
Creates an area of shared powers for the states that the federal govt. cannot reach. [Ex. Lopez &
Morrison] Zone of Activities, Commandeering
Ct. may not commandeer the states to implement federal regulations [NY v. U.S. & Printz v. U.S.]
However, Congress may regulate the states as “commercial entities” w/out violating the 10th,
so long as the regulation falls under one of Rehnquist’s 3 Commerce Prongs from Lopez.
(1) the channels of interstate commerce;
(2) the instrumentalities, persons, or goods of interstate commerce;
(3) activities having a "substantial effect" upon interstate commerce.
The 4th Era Ct.:
The 4th era ct. is not radically departing from the 3rd era.
60
The 4th era ct. is divided into those that want a more narrowly tailored substantial effects test and those that
would accept nearly anything under the substantial effects test.
The 4th era ct. does not like congressional regulations that are pretexts for social welfare laws.
4th Era ct. holds that the 10th amendment means something, it is not a “truism” as Stone said it was in Darby.
Ct. will find legislation under the Commerce power permissible when:
It relates to commercial activity [Lopez & Morrison ]
and
Where the legislation falls under 1 of the following:
(1) the channels of interstate commerce;
(2) the instrumentalities, persons, or goods of interstate commerce;
(3) activities having a "substantial effect" upon interstate commerce.
Must not regulate the states as states, forcing them to implement federal regulations [NY v. U.S. &
Printz v. U.S.].
What the Ct. likes and dislikes in commerce power regulation:
Dislikes:
Pretextually (i.e. social welfare) [Lopez/Morrision] regulation [activity must be commercial]
Commandeering the states to implement federal regulatory programs [NY and Printz] (Reno, National
League of Cities exception, where the states are acting as commercial entities)
Likes:
Regulations dealing with the channels and instrumentalities of commerce
Regulating the states as commercial actors(generally applicable law) [Reno] (1. laws gen applicable 2.
not creating affirmative duties) as opposed to regulating them as sovereign actors. [Guillen].
[Raich] market analysis approach.
Current state of commerce clause activity 1. is it pretextual
C. The Taxing and Spending Power
1. For What Purposes May Congress Tax and Spend?
For what purposes may Congress tax and spend?
• Is Congress limited to taxing and spending only to carry out the powers specifically enumerated in Art. I
[Madisonian view], or does Congress have the broad authority to tax and spend for the general welfare
• [Hamiltonian view] that congress could tax and spend for any purpose that it believed served the general
welfare, so long as Congress did not violate another constitutional provision
• In reading Butler it is important to distinguish two issues:
o (1) the scope of Congress’s taxing and spending powers.
o (2) whether the 10th Amendment is a limit on it.
 Butler’s holding on (1) is still good law, but its holding with respect to (2) is no longer good
law.
• Art. I, § 8:
o Congress may tax & spend for the “General Welfare.”
⋅ United States v. Butler

⋅ Chas. C. Steward Mach Co. v. Davis
61
U.S. v. Butler, 297 F: The A.A.A. declared that Roberts: Yes, certain provisions Stone: Congress may not
U.S. 1 (1936) b/c of a crisis in agricultural of the A.A.A. conflict with the The majority makes four errors: use the taxing or
production, the Sec. of constitution b/c it infringes on (1) Ct.s are concerned only with spending powers to
[Taxing case: Agriculture could set limits certain reserved rights of the the power to enact statutes, not force compliance in
Congress does have the on production of certain crops states. with their wisdom. When an area where the
broad power to tax and and impose taxes on Congress has the express power assessing the constitutionality of Constitution does
spend for the “general production in excess of these to lay taxes to provide for the a congressional statute the ct. not give Congress
welfare”, but this limits. General welfare; however the should exercise judicial restraint independent power
power may be Under the A.A.A. the Sec. Constitution also prohibits (rational basis). to regulate, or
circumscribed where it could K with farmers to certain invasions of the reserved (2) the constitutional power of where the
unduly infringes on produce a limited amount of rights of the states. (Good Law!) Congress to levy an excise tax Congressional law
traditional areas of state crops in exchange for benefit upon the processing of invades a
sovereignty] payments, the payments This is a statutory plan to agricultural products is not Q’ed. traditional area of
coming from an account regulate and control agricultural (3) As the present depressed state state sovereignty.
(Barnes) precursor funded by taxes imposed on production, a local matter, a of agriculture is nationwide in
act to Wickard producers for exceeding their matter beyond the powers its extent and effects, there is no (Barnes) zone of
production limits. The Act delegated to the federal Govt. basis for saying that the activity notion
I: is this taxation for the also authorized grants to (this portion of the reasoning is expenditure of public money in
general welfare? farmers to control production no longer good law). aid to farmers is not within the
and thus regulate prices. Art. specifically granted power of
I, § 8 of the Constitution It does not help to declare that Congress to levy taxes to
empowers Congress to "lay local conditions throughout the "provide for the general welfare."
and collect taxes, duties, nation have created a situation of (4) while all federal taxes
imposts, and excises, the pay national concern; for this is to inevitably have some influence
the debts and provide for the say that whenever there is a on the internal economy of
common defense in general widespread similarity of local states, it is not contended that the
welfare of the U.S.." conditions, Congress may ignore levy of a processing tax upon
constitutional limitations upon its manufacturers using agricultural
I: Whether certain provisions own powers and usurp those products as raw material has any
of the A.A.A. conflict with reserved to the states. perceptible regulatory effect on
the federal constitution. either their production or
manufacture.
What that General Welfare Means?
Chas C. Steward Co. v. Davis, 301 U.S. 548 (1937) ["The Congress shall have power to lay and collect taxes,
duties, imposts, and excises."]
Issue:
The validity of the tax imposed by the Social Security Act on employers of eight or more.
Facts/Procedure:
The tax, which is described in the statute as an excise, is laid with uniformity throughout the U.S. as a duty,
and impost, or excise upon the relation of employment.
Holding:
The U.S. can tax employers for Social Security benefits b/c the ct. found no basis for holding that the power
in that regard, which belongs by accepted practice to the legislatures of the states, has been denied by the
Constitution to the Congress of the nation.
"The Congress shall have power to lay and collect taxes, duties, imposts, and excises."
The subject matter of taxation open to the power of Congress is as comprehensive as that open to
the power of the states, though the method of apportionment may at times be different.
Class:
Simply b/c the Congress and the states may have concurrent powers in an area it does not violate state
sovereignty for Congress to exercise this power in contradiction of the states’ policies
⋅ Conditions on Grants to State Govt.
The ct. has held that Congress may place strings on such grants, so long as the conditions are expressly stated and so
long as they have some relationship to the purpose of the spending program.
Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947): i is for
Holding:
62
the ct. upheld a provision of the federal Hatch Act which granted federal funds to state
governments on the condition that the states adopt civil service systems and limit the political
activities of many categories of Govt. workers.
While the U.S. is not concerned with, and has no power to regulate, local political activities, it does
have power to fix the terms upon which its money allotments to states shall be disbursed.
South Dakota v. Dole

Sabri v. U.S. (What are the lmt and What can you do under the spending pwr)
Case Name Facts & Issue Holding: Dissent Rule

S.D. v. Dole, F: SD permits persons 19 years Rehnquist: Yes, b/c the Constitution Brennan: Regulation Valid use of the
483 U.S. 203 of age or older to purchase beer empowers Congress to "lay and collect of the minimum age spending power
(1987) containing up to 3.2% alcohol. taxes, duties, imposts, and excises, the for purchasing alcohol is subject to 4e
In 1984 Congress enacted 23 pay the debts and provide for the is reserved to the states requirements:
[the federal USC § 158, which directs the common defense in general welfare of by the 21st (1) it must be
govt. may Secretary of transportation to the U.S.." Incident to this power amendment. used for the
condition withhold 5% of federal highway Congress may attach conditions on the Since the states possess general welfare;
grants of funds otherwise allocable, from receipt of federal funds. this constitutional (2) any
federal funds state's "in which the purchase of power, Congress conditions on
to the states or public possession of any However, the spending power is not cannot condition a receipt of the
based on state alcoholic beverage by person unlimited: federal grant and in funds must be
compliance who is less than 21 years of age (1) the exercise of the spending power manner that abridges unambiguous;
with federal is lawful." must be in pursuit of the "general that right. (3) and, any
programs so welfare." conditions must
long as the § 2 21st Amendment(not a This provision is designed to serve the O’Connor: be related to the
program: (1) scheme or zone but a pwr to general welfare. (3) § 158 is not a federal interest
is based on the reg that may have to yield to (2) if Congress desires to condition the condition on spending in the particular
general other pwrs) state's receipt of the funds, it must do so reasonably related to national projects
welfare; (2) Intoxicating liquors, shipment unambiguously enabling the states to the expenditure of or programs
the conditions into dry territory prohibited: exercise their choice knowingly, federal funds and being funded.
for the receipt The transport or importation into cognizant of the consequences of their cannot be justified on (4) When
of the funds is any State, territory, or possession participation. the ground. pressure turns to
clear; (3) the of the U.S. for delivery or use The conditions on which the states The establishment of a compulsion then
conditions are therein of intoxicating liquors, in receive the funds are clear and minimum treating age this is an
reasonably violation of the laws thereof, is unambiguous. of 21 is not sufficiently impermissible
related to the hereby prohibited. (3) conditions on federal grants might related to interstate violation of state
purpose of the be a legitimate if they are unrelated to highway construction sovereignty
federal SD sued in U.S. District Ct. the federal interest in particular national to justify so under the 10th
program (4) seeking a declaratory judgment projects or programs. conditioning funds Amendment.
must not be that § 158 violates the The condition imposed by Congress is appropriated for that
coercion of constitutional limitations on the directly related to one of the main purpose.
the States congressional exercise of the purposes for which highway funds are
(10th spending power and violates the expended, safe interstate travel. Barnes says: If the
Amendment)] 21st amendment to the U.S. amount of money was
Constitution. “A perceived 10th amendment more than 5% of a
limitation on congressional regulation state’s federal highway
I: May Congress use its spending of state affairs does not limit the range funds, say 50% this
power to regulate activities in of conditions legitimately placed on likely would have been
areas otherwise reserved to the federal grants.” impermissible coercion
states by conditioning the receipt under the 10th
of federal funds on the state's Amendment. Court
compliance with the has ill defined
congressional regulation? cohersion and the
States can’t leave fed
money on the table
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981) [Strings attached to Federal
funding must be unambiguous]
Facts:
63
the Developmentally Disabled Assistance and Bill of Rights act of 1975 created a federal grant
program for state governments to provide for better care for the developmentally disabled.
This included a bill of rights for the developmentally disabled.
The Pennhurst State school and Hospital, a facility run by PA, was sued for violating the bill of
rights contained in act.
Holding:
S. Ct. ruled in favor of the state, holding that "if Congress intends to impose a condition on the
grant of federal money it must do so unambiguously."
The ct. explained that conditions must be clearly stated so that the states will know the
consequences of their choosing to take federal funds.
The ct. concluded that the act failed to require that states meet the bill of rights as a condition for
accepting federal money.
Case Name Facts & Issue Holding Concurrence Rule

Sabri v. U.S., 124 F: Sabri is a real estate developer who (Souter) No, § 666(a)(2)’s Thomas: This is The power to
S. Ct. 1941 (2004) proposed building a hotel and retail authority to bring federal power to commercial activity keep a watchful
(just gen welfare structure in the city of Minneapolis. bear directly on individuals who associated with eye on
case) HERE Sabri offered three separate bribes to convert public spending into business creation and expenditures and
needs just not City Councilman, Brian Herron. unearned private gain, not a means the receipt of federal other liability of
violate other con 18 USC § 666(a)(2) imposes federal for bringing federal economic funds, therefore, the those who use
provisions criminal penalties on anyone who might to bear on a state's own decision should have public money is
[Congress has the "corruptly gives, offers, or agrees to choices of public policy. [not been based on the bound up with
power to condition give anything of value to any person, acting on the states, acting on commerce clause congressional
the State’s receipt with intent to influence or reward an corrupt bribers] power, not the authority to
of federal funds on agent of an organization or of a state, spending power of spend.
its ability to local or Indian tribal Govt., or any The power to keep a watchful eye imposing conditions on
impose federal agency, thereof, in connection with on expenditures and other the states receipt of
prosecution for any business, transaction, were series liability of those who use public federal funds. (Barnes) Souter
misappropriation of transactions of such organization, money is bound up with (Appropriate and is proposing
of those funds by Govt., or agency involving anything congressional authority to spend Plainly adapted) but for federal
state or local of $5,000 or more. In 2001 in the first place, and the ∆ would Where Congress oversight
officials.] Minneapolis administered about $29 be hard-pressed to claim, and the imposes criminal criminals
million in federal funds paid to the words of the Lopez ct., that § 666 liability on individuals would go
(Barnes) city, and in the same period, the "has nothing to do with" the via its taxing and unpunished?
(Souter) Art 1 MCDA received some $23 million congressional spending power. spending powers, it is NO. They
pwr to spend for federal dollars. ∆ moved to dismiss not subject to the same would be
general welfare the indictment on the ground that Congress does not have to sit and requirement imposed punished under
and the Nec and the statute is unconstitutional on its accept the risk that federal grants when it is regulating state federal
Prop clause gives face for failure to require proof of a will be thwarted by local and state states via the taxing law.
the pwr to. connection between the federal improbity. and spending powers,
No textual diff b/t funds and the alleged bribe, as an that any conditions Court more
Sarbi and Butler element of liability (no nexus between (NEC AND PROP) Barnes- must be related to the concerned with
only interpretive the federal funds and the alleged there is no textual meaning. federal interest in the COHERSIVE
difference. bribes). Rather it is interpretive. particular national behavior.
projects or programs
Here, Souter says I: Is 18 USC § 666(a)(2) being funded.
nec and prop unconstitutional for failing to require
gives the ability proof of a connection between the (Barnes) Art I. + Nec
to ensure money federal funds and the ∆’s alleged and Proper (here
is only spent for bribe? crazy just Thomas)
the general
welfare.
(McCulloch)
Summary of the Brief Foray into Taxing and Spending: (MAJOR TEST)
Taxing:
(1) Text: “general welfare”
(2) Must not violate other portions of the Constitution:
Do the relevant Congressional taxing & spending provisions merely compel or do they
impermissibly coerce?
Spending [Rehnquist’s test from SD v. Dole]:
64
(1) Text: “general welfare”
(2) If there are conditions they must be unambiguous
(3) Linked to Federal Interest
(4) Finally ask about Coercion or compulsion? (10th Amendment Limits concerns)
This is an ad hoc flexible standard/ and ill defined
The total effect of the 10th Amendment on Congress’s Taxing and Spending powers is unclear at this
time.
D. Congress’s Powers Under the Post-Civil War Amendments
13th – prohibits slavery and involuntary servitude and also provides in §2, Congress shall have the power toe enforce
this article by appropriate legislation.
14th – provides that all persons born or naturalized in the US are citizens and that no state can abridge the privileges
or immunities of such citizens; nor may states deprive any person of life, liberty, or property w/o due process of law
or deny any person of equal protection of the laws. § 5 states: Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
15th – declares that the right of citizens of the US to vote shall not be denied or abridged by the US or by any state on
account of race, color or previous condition of servitude. § 2 again provides that Congress has the power to enforce
it by appropriate legislation.
The three Reconstruction Era amendments, contain provisions that empower Congress to enact civil rights
legislation. Two major Qs arise concerning the scope of this power.
1. May Congress regulate private conduct under this authority, or is Congress limited to regulating only
Govt. actions?
2. What is the scope of Congress’s power under these amendments?
1. Who May Congress Regulate Under the Post-Civil War Amendments?
The Civil Rights Cases, 109 U.S. 3 (1883) [8 to 1 decision: Restricted the effects of the
Reconstruction amendments and their enforcement laws to the states]
Pursuant to § 2 of the 13th and § 5 of the 14th the federal govt. may regulate only state and local
govt. actions, not private conduct.
Struck down the Civil Rights Act of 1875 as unconstitutional.
Holding:
Civil Rights Act of 1875 is an unconstitutional exercise under the enforcement clauses of
the Reconst Ams, as it regulates private conduct, and those Ams may only
constitutionally reach St action.
Cannot adjust the social rights of men and races in the community.
Civil Rights Act of 1875 (Broadly prohibited private racial discrimination by hotels, restaurants,
transportation, and other public accommodations.)
42 USC 1981 [prohibits discrimination in private and public K’ing]
42 USC 1982 [prohibits discrimination in private and public sales]
42 USC 1983 [allows citizens to sue different levels of govt. for certain discrimination claims]
Are all still good law.
Today the § 2 of the 13th can be used to prohibit private discrimination, which Congress determines
to be vestiges of slavery.
Jones v. Alfred Mayer Co., 392 U.S. 409 [42 USC § 1982, Black family sues b/c real-estate
developer refuses to sell to them b/c they are black]:
Holding:
• Congress may prohibit private discrimination in the selling and leasing of
property.
65
• Congress has the power under the 13th to rationally determine what are the
badges and incidents of slavery, & the authority to translate that determination
into effective legislation.
Runyon v. McCrary, 427 U.S. 160 (1976) [42 USC § 1981, qualified Black students want to
attend discriminatory white schools]:
Holding:
Congress may prohibit racial discrim. in private K’ing pursuant to § 2 of the
13th.
§ 5 14th still cannot be used to regulate private behavior destructive to EP, Due process, and P & I’s:
U.S. v. Guest, 383 U.S. 745 (1966) [Plurality held the Civil Rights Cases were wrong, 14th
should apply to state as well as private discrimination]:
A federal law made it a crime for 2 or more persons to go onto a highway in disguise, or
onto the premises of another, with intent to prevent or hinder his free exercise or
enjoyment of any right or privilege (18 USC § 241). As a matter of law did not
overrule the Civil Rights Cases.
Holding:
Interference w/ the use of facilities in ISC violated the law, whether or not
motivated by a racial animus. (concluding that Congress may outlaw
private discrimination pursuant to § 5 of the 14th Am.
⋅ United States v. Morrison
Case Facts, Nuggets, Issue Holding Etc Rule/DP
US v. Morrison An alleged rape victim sought to No, the VAWA is not Breyer argued that Congress’s
(2000) sue her accused attackers under a valid exercise b/c we there is state action authority to
CJ Rehnquist the fed VAWA. The accused have previously held here: inadequate regulate under
asserts that VAWA is an that § 5 of the 14th only action to address § 5 of the 14th
(Barnes) unconstitutional exercise of applies to state action, gender motivated Am extends
congressional authority. not private action like violence. By doing only to State
gender-based violence. nothing, you have action, not
I: Is VAWA a valid exercise done something. He private action.
under § 5 of the 14th (since it The Ct held that would have also
regulates the activities of private Congress lacked the found VAWA Unless it’s the
individuals)? authority to enact a constitutional under state seeking to
statute under the CC or the CC as Congress deprive you of
Nugget: Chemerinsky’s the 14th Am since the presented mounds of your 14th Am
empowerment argument: statute did not regulate statistics to show rights, this Ct is
The fed Govt. should be able to an activity that gender motivated not going to
fill in gaps where laws are substantially affected violence’s recognize any
inadequate to support and ISC nor did it redress substantial impact state action –
promote the general welfare of harm caused by the on ISC. though the
the people. States should be able state. Rehnquist wrote Warren Ct
to cede their reserved powers to for the Ct. that [i]f the would have
the fed Govt. where they are allegations here are found that there
unable or unwilling to do true, no civilized was commercial
something themselves. system of justice could action and a
fail to provide substantial affect
[Brzonkala] a remedy on ISC (see
for the conduct Heart of Atlanta.
of...Morrison. But
under our federal
system that remedy
must be provided by
the STATE of VA,
and not by the US
66
2. What is the Scope of Congress’s Power? Initially it only will allow sec 5 14th as a
state action and to pierce sovereign immunity of the states
There are two divergent views as to Congress’s power under the Reconstruction Amendments:
o (1) Narrow Approach (remedial, FEDERALIST perspective) ]: [See Kennedy’s opinion in
City of Boerne]:
 Congress may only enact laws, under Amendments’ enforcement clauses, which address
state action (or state and private action under § 2 of the 13) that the Federal ct.’s have
declared unconstitutional.
 Congress only has authority to prevent or provide remedies for violations of rights
recognized by the S. Ct.; Congress cannot expand the scope of rights or provide
additional rights.
o (2) Broad Approach (substantive, NATIONALIST perspective) [See Brennan’s opinion in
Katzenbach: if you are a nationalist you think the fed gov has broad pwrs to regulate
 Congress may enact laws, under the Amendment’s enforcement clauses, which addresses
action that Congress feels is unconstitutional.
 Congress, by statute, may create rights where the Ct has not found them in the Const, but
Congress cannot dilute or diminish const rights.
The choice b/w these 2 views, in part, is about a textual argument concerning what § 5 means when it
empowers Congress “to enforce” the Am by appropriate legislation.
Those who take the former view:

1. contend that Congress is not “enforcing” if it is creating new rights.
2. see it as solely the Ct’s role to decide the rights protected under the Const as Congress’s role is limited
to enacting laws to prevent and remedy violations.
3. see it as narrowing federal power, reserving more governance for the states, and lessening the instances
in which the fed Govt. can regulate state and local actions.
Those who take the latter view:

1. argue that Congress is enforcing the Am by creating greater protections than those found by the Ct.
2. see both Congress and the Ct as having authority to recognize any rights under the Constitution.
3. defend it as creating needed national power to protect civil rights and civil liberties.
⋅ Katzenbach v. Morgan and Morgan

⋅ Boerne v. Flores
67
Case Facts, Nuggets, Issue Holding Dissent Rule
Katzenbach v. NY voters are challenging a Yes, § 4(e) is a valid Harlan: Congress’s power § 5 of the 14th
Morgan (1966) fed law (§ 4(e) of the Voting exercise under § 5 of the under § 5 of the 14th is authorizes
J. Brennan, Rights Act 1965) b/c it is a 14th in order to enforce the remedial and not Congress to enact
(Barnes) could talk pro tanto prohibition of the EP clause of the 14th b/c the substantive, that can be remedial legislation
about voting as due enforcement of the election drafters of the 14th intended agreed upon, but Congress’s prohibiting
process or equal laws of NY requiring an § 5 to confer broad action here was substantive, enforcement of
protection rights. ability to read and write enforcement powers to it was interpreting the state laws found to
English as a condition of Congress, similar to the Constitution. abrogate civil
(BROAD VIEW) see voting. Necessary and proper But, it is a judicial Q: rights even though
recap clause, therefore Congress whether the condition with such state laws are
Why are we using the I: Whether § 4(e) if the may enact any laws, which Congress has thus not per se
14th amendment Voting Rights Act of 1965 is pursuant to § 5 of the 14th, sought to deal is in truth an unconstitutional.
instead of the 15th appropriate legislation to which are “plainly adapted infringement of the
amendment? Could enforce the 14th’s EP clause to the end” of enforcing the Constitution, something that
have but harder case under the § 5 enforcement 14th, and which are not is the necessary prerequisite
to prove. 15th just clause. prohibited by, but are to bringing the § 5 power
about voting 14th is consistent with the “letter into play at all.
much broader. and spirit of the
Constitution.” Harlan and the Rehnquist
Ct feel that by using the 14th
as substantive rather than
remedial, the Congress is
declaring what the
constitutional laws are.
68
City of Boerne v The Archbishop of San No, § 5 of the 14th is O’Connor: Smith (which § 5 of the 14th
Flores (1997) Antonio sued local zoning remedial in nature, not held that generally amendment does
J. Kennedy authorities for violating his substantive. Congress may applicable, religion-neutral grant Congress an
(Ct adopts a very rights under the 1993 enact laws under § 5 against laws that have the incidental affirmative
different view of the Religious Freedom state action declared effect of burdening a legislative power,
scope of Congress’s Restoration Act (RFRA), by unconstitutional by the particular religious practice however it is a
authority under § 5 of denying him a permit to federal cts, but it cannot need not be justified by a remedial power to
the 14th Am than that expand his church. Boerne's determine the substantive compelling governmental enact measures to
taken by the majority zoning authorities argued scope of Constitutional interest) was wrongly prevent
in Katzenbach.) that the Archbishop's church rights on its own. decided. If the Ct corrects constitutional
was located in a historic the misinterpretation of the violations, but it
Here, Ct declared the preservation district Congress is limited to laws Free Exercise Clause set does not allow
Religious Freedom governed by an ordinance that prevent or remedy forth in Smith, it would put Congress to define
Restoration Act forbidding new construction, violations of rights our 1st Am jurisprudence the substantive
unconstitutional, and that the RFRA was recognized by the Ct, and back on course. scope of
which was signed unconstitutional insofar as it these must be narrowly constitutional
into law by Clinton sought to override this local tailored – “proportionate Souter: Since Smith is guarantees.
in response to the preservation ordinance. and congruent” to the wrong, this case should be
Ct’s decision in constitutional violation. re-argued permitting a full
Smith (see below). I: May Congress, pursuant review of the issue.
to § 5 of the 14th, define the While preventative rules are
(Barnes) RFRA- substantive scope of sometimes appropriate
have to demonstrate constitutional guarantees so remedial measures under
COMPELLING as to afford all Americans enforcement clause of 14th
INT and due process, EP, and free Am, there must be
Narrowly tailor exercise of their P & I’s? congruence b/w means
rule. used and ends to be
achieved; appropriateness of
Rejects RFRA but remedial measures must be
the court is striking considered in light of evil
down the rule for presented.
compelling int and
narrow tailoring Kennedy chastises Congress
for its attempt to make an
end-run around the Ct’s
disposition of religious
freedom in Smith.
Employment Div. Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
• the S. Ct. significantly narrowed the scope of the Free Exercise Clause.
• Facts:
o Oregon law prohibited the consumption of peyote, a hallucinogenic substance.
o A group of Native Americans challenged the law claiming that it infringed free exercise of
religion b/c their religious rituals required the use of peyote.
o The previous S. Ct. precedent on the issue had been that Govt. actions burdening religion are
upheld only if they are necessary to achieve a compelling Govt. purpose.
• Holding:
o the S. Ct. changed the law and held that the Free Exercise Clause cannot be used to challenge
neutral laws of general applicability.
o The Oregon law prohibiting consumption of peyote was deemed neutral b/c it was not motivated
by a desire to interfere with religion and that was a law of general click ability b/c it applied to
everyone.
E. Congress’s Power to Authorize Suits Against State Governments
69
1. Background on the Eleventh Amendment and State Sovereign Immunity
• 11th Am - “The Judicial power of the U.S. shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”
• The 11th was intended to strike from Art. III, § 2 the clauses that state:
o that the judicial power of the U.S. extends to suits “between a State and Citizens of another state,”
and “between a State, or the Citizens thereof, and foreign States, Citizens or subjects.”
• The 11th was a reaction to the S. Ct. case Chisholm v. Ga., 2 U.S. 419 (1793):
o Facts:
 A SC citizen sued GA to recover money owed to him by GA.
 He sued in federal ct. citing the Art. III language that expressly allows federal cts to hear
suits against the state govt.’s by citizens of other states.
 GA claimed that it had SI and should not be sued w/out its consent.
o Holding (4 to 1):
 Ct. held that the clear language of Art. III authorized suits against a state by citizens of
another state.
o Facts post decision:
 GA adopted a statute declaring that anyone attempting to enforce the S. Ct.’s decision is
“hereby declared to be guilty of a felony, and shall suffer death.”
 Less than 3 weeks later Congress approved the 11th amendment, and 3 years later the
president approved of the states’ ratification.
• Hans v. La., 134 U.S. 1 (1890) [Since Hans states have been immune to suits both by their own
citizens and by citizens of other states]
o Holding:
 Ct. held that the 11th also bars suits against the states by their own citizens, even on Fed.
Q claims.
• Two Views of the 11th: (Scholars and Justices alike disagree as to the proper interpretation of the 11th
Am)
o (1) The current majority of the Ct. believes that SI creates a constitutional restriction on federal ct.
subject matter jurisdiction for all suits against state govt.’s.
o (2) The current 4 justice minority believes that the 11th amendment merely prohibits federal cts
from hearing diversity jurisdiction cases between states and citizens of other states.
 Under this view States can be sued based on other Art. III jurisdiction provisions.
 Most notably SI would not apply to Federal Q jurisdiction.
 All claims of state violations of the Constitution or fed laws could be heard in fed cts.
• Three ways around the current majority’s conception of SI:
o (1) State officers may be sued in federal ct., even where state govts cannot be sued.
o (2) States may waive their 11th amendment immunity and consent to be sued in fed ct.
o (3) Congress acting pursuant to § 5 of the 14th may authorize suits against the state govts.
⋅ Lapides v. Board of Regents of the University

System of Georgia (Supp)
70
Lapides Π brought a civil rights Yes. The Ct held that a State waives The State’s choice
v. Univ. claim along with a number its 11th Am immunity when it to remove the case
of GA of state law claims against removes a case from state ct to fed ct. to fed ct was a
(2002) the Univ of GA in GA state The Ct concluded that the university waiver of its SI.
J. Breyer, Ct. GA waived its SI in the officials' voluntary removal of the
state Ct. and allowed the suit action expressly invoked the juris of A State’s choice to
to proceed. GA then moved the fed cts and thus constituted a remove a case from
to have the case removed to waiver of SI with regard to state law state to fed ct is a
fed ct., which it was. Then claims for which immunity was removal when there
GA moved to dismiss the waived in state ct. Under the general are state law claims
suit based on the 11th Am. principle that a State's voluntary and the state has
There were no viable federal appearance in fed ct amounts to a waived its
claims b/c state govts cannot waiver of its 11th Am immunity, the immunity as to
be sued under 42 USC § Ct reasoned that GA was brought these claims in state
1983 and all that remained involuntarily into the case as a D in ct.
were state law claims. state ct, but it then voluntarily
removed the case to fed ct, thus
I: Does a State's act of voluntarily invoking that ct.'s
removing a lawsuit from jurisdiction.
state ct to fed ct waive the
State's 11th Am immunity It would seem anomalous or
from suit in fed ct by citizens inconsistent for a state both to: (1)
of other States? Invoke fed juris, thereby contending
that "judicial power of the U.S.”
extends the case at hand, and; (2)
Claim 11th Am immunity, thereby
denying that the "judicial power of the
U.S." extends to the case at hand.
2. Congress’s Power to Authorize Suits Against State Governments

⋅ Board of Trustees, University of Alabama v.
Garrett (Supp)
⋅ Nevada Department of Human Resources v. Hibbs
(Supp)
⋅ Tennesee v. Lane (Supp)
⋅ Fitzpatrick v. Bitzer
⋅ Seminole Tribe of FL. v. FL.
71
Bd of After Garrett, Dir of (1) Yes, Congress’s Breyer, Stevens, Congress may not
Trustees, Nursing for the U of AL, intent to abrogate the Souter, Ginsburg: abrogate the states’
Univ of AL v. was diagnosed with states’ SI via Title I of SI, by authorizing
Garrett breast cancer, her the ADA is clear. Ct: (1) is acting as a private suits, via § 5
(2001) treatment forced her to (2) No, suits in fed ct “super-legislature” of the 14th absent a
CJ Rehnquist take a substantial leave by state employees to by acting as a pattern of
from work. Upon return, recover $ damages by separate drafting discrimination by the
her supervisor informed reason of the state's review body for states which violates
her she would have to failure to comply with congressional the 14th amendment.
give up her position. Title I of the ADA are legislation.
Garrett filed a barred by the 11th Am. (2) is treating Congr. Adverse, disparate
discrimination suit "In order to authorize as a lower ct. treatment (i.e. of the
against her AL state private individuals to (3) cannot impose disabled) often does
employer, seeking $$ recover $ damages judicial evidentiary not amount to a
damages under Title I against the States, there standards on Congres constitutional
(premised upon equal must be a pattern of (4) is overlooking violation where
protection clause) of discrimination by the the fact that rational-basis scrutiny
the Americans with States which violates Congress is more in applies.
Disabilities Act of 1990 the 14th Am, and the touch w/ the people
(ADA), which prohibits remedy imposed by & w/ society; Congress may not
the States and other Congress must be therefore, if it says abrogate the state’s
employers from congruent and there is evidence of SI, by authorizing
"discriminating against a proportional to the widespread private suits, via § 5
qualified individual w/ a targeted violation." discrimination there of the 14th Am absent
disability b/c of that None of these probably is and this a pattern of
disability... in regard to... requirements had been finding should be discrimination by the
terms, conditions, and met. accepted under a states which violates
privileges of rational basis review. the 14th Am.
employment."
I: (1) Did Congress

expressly abrogate the
states SI in the ADA?
(2) May an individual
sue a state for damages
in federal ct. under the
Americans with
Disabilities Act of 1990?
72
NV Dept of Hibbs, an employee of (1) Yes, Congress’s Scalia: There is no Where the
HR v. Hibbs the NV Dept of HR, intent to abrogate the guilt by association, discrimination
(2003) sought leave to care for states’ SI via the enabling the involved involves a
Rehnquist his wife under the FMLA is clear. sovereignty of one protected class and is
Family and Medical state to be abridged therefore subject to
(Hightened Leave Act of 1993 (2) Yes, the FMLA is a under § 5 b/c of strict scrutiny and
Scrutiny) (FMLA). The FMLA valid enforcement violations by another Congress shows
there is a entitles an eligible act/prophylactic state, or by most widespread
shift to this employee to take up to measure pursuant to § 5 other states, or even discrimination on the
standard b/c 12 workweeks of unpaid of the 14th Am b/c by 49 other states. part of the states and
premised leave annually for the gender discrimination the § 5 enactment is
upon gender onset of a "serious health is subject to “strict The states are not remedial and its
condition" in the scrutiny” and Congress some collective means are congruent
Serve sub or employee's spouse. The has shown a body; they are and proportional to
imp gov int Dept granted Hibbs's widespread pattern of individual the remedial end then
substaintally request for the full 12 discrimination and the sovereignties and Congress may
related to weeks of FMLA leave FMLA is proportionate should be accorded abrogate the state’s SI
achieving and, after he had and congruent as it is the requisite respect. and subject them to
that goal. exhausted that leave, narrowly tailored to private suit under the
informed him that he remedy the problem. (Barnes): the § 5 enactment.
must report to work by a treatment from state
certain date. When The Ct held that State to state is really not
(Barnes) ct Hibbs failed to do so, he employees may recover that different The (majority in this)
does not state was fired. Pursuant to $$ damages in fed ct in Ct likes that Congress
what you FMLA provisions the event of the State's is legislating
have to do or creating a private right failure to comply with “smaller.”
set a bight of action "against any the FMLA's family-
line rule b/c employer" that care provision. The Ct Equal protection is
that would "interfered with, reasoned that Congress the gatekeeper and an
constrain the restrained, or denied the both clearly stated its EP category subject
court in the exercise of" FMLA intention to abrogate to strict scrutiny will
future rights, Hibbs sued in Fed the States' 11th Am get you in, but
Dist Ct, seeking money immunity from suit in rational basis review
damages for FMLA fed ct under the FMLA of the state action will
violations. The Dist Ct and acted within its likely kill the
concluded that the 11th authority under § 5 of congressional
Am barred the FMLA the 14th Am by legislation, as the
claim. The Ct of Appeals enacting prophylactic, states can always
reversed. rather than come up w/ some
substantively plausible excuse for
I: redefining, legislation. the discrimination.
(1) was it unequivocally "In sum, the States'
clear that Congress record of Analysis to determine
intended to abrogate the unconstitutional whether it’s a valid
states’ SI in the FMLA? participation in, and exercise: size of the
fostering of, gender- problem > level of
(2) Whether Congress based discrimination in scrutiny applied to the
acted w/in its the administration of discrimination >
constitutional authority leave benefits is proportionality and
when it sought to weighty enough to congruence.
abrogate the State’s justify the enactment of
immunity for purposes prophylactic § 5
of the FMLA’s family- legislation."
leave provision?
73
TN v. Lane Two paraplegics, a No. Concur: Ginsburg – Where the
(2004) criminal suspect and a ct The Ct held that Legislation calling discrimination
Stevens reporter, are suing TN, Congress had upon all Govt. actors involved is subject to
under Title II of the sufficiently to respect the dignity strict scrutiny and
ADA, for lacking the demonstrated the of the disabled is Congress shows
proper infrastructure to problems faced by entirely compatible widespread
(diff b/t tenn accommodate disabled disabled persons who w/ our Constitution’s discrimination on the
v. lane and people, thereby denying sought to exercise commitment to part of the states and
Garrant is them access to public fundamental rights federalism, properly the § 5 enactment is
that it is services. protected by the DPC conceived. remedial and its
brought of the 14th Am (such as Dissent: Rehnquist, means are congruent
under the TN asked that the case access to a ct). The Ct Kennedy & and proportional to
Title 2 of the be dismissed, claiming also emphasized that Thomas: the remedial end, then
ADA) that it was barred by the the remedies required The majority Congress may
11th Am’s prohibition of from the states were not identifies nothing in abrogate the states’ SI
suits against states in fed unreasonable - they just the Congressional and subject them to
cts (the SI doctrine). The had to make reasonable record that shows private suit under the
state cited Alabama v. accommodations to Congress was § 5 enactment.
Garrett, in which the S. allow disabled persons responding to
Ct. ruled that Congress to exercise their widespread state The problem w/
had acted fundamental rights. B/c violations of the DP formalism:
unconstitutionally in Title II was a of disabled persons.
granting citizens the "reasonable EP – Overbreadth is
right to sue states for prophylactic measure, Just b/c the states deadly
disability discrimination reasonably targeted to a don’t have “ideal”
(such as the denial of legitimate end," and b/c facilities doesn’t DP – Overbreadth is
employment) under the Congress had the mean disabled not necessarily deadly
14th Am's equal authority under the 14th people are being b/c the Ct believes it’s
protection clause. In that Am to regulate the systematically the more critical 14th
case, the Ct reasoned actions of the states to denied access to the Am right that needs to
that Congress did not accomplish that end, cts. A violation of be protected.
have enough evidence of the law was DP occurs only when
disability discrimination constitutional. a person is actually IOW, there is a
by states to justify the denied the const fundamental right at
waiver of SI. Boerne Inquiry: right to access a issue here, but this
1st step: identify the given judicial decision is based on a
The dist ct rejected the const right that proceeding. We formalistic distinction
state's argument and Congress sought to have never held that b/w § 5 enactments
denied the motion to enforce when it enacted a person has a const aimed at EP as
dismiss. The Ct of App Title II. (the rights at right to make his opposed to DP. EP
panel affirmed. The cts issue are protected by way into a ct room seems to be the place
reasoned that b/c Title II the DPC of the 14th w/o any external where this type of
of the ADA dealt with Am) assistance. legislation is most
the Due process Clause appropriate, but the
of the 14th Am, not the 2nd step: level of Financial concerns Ct, b/c of previous EP
equal protection clause, scrutiny and evidence are a valid jurisprudence, is
the ruling in Garrett did of widespread state justification for unwilling to allow
not apply. The ct found discrimination  discrimination this abrogation of the
that while Congress may prophylactic against the disabled. states SI b/c states,
not have had enough legislation. (access to under EP juris, can
evidence of disability cts is a fundamental Scalia, dissent: discriminate against
discrimination to waive right requiring strict classes like the
SI for equal protection scrutiny) The proportionate disabled where the ct
claims, it did have and congruent test is applies a “rational
enough evidence of Due 3rd step: Was a farce; it’s nothing basis” test.
Process violations (such more than a judicial
74
Fitzpatrick v. In the 1972 Rehnquist: Yes, Congress as a means of No constitutional
Bitzer (1976) Amendments to Title enforcing the substantive guarantees of the provision prohibits
J. Rehnquist VII of the Civil Rights 14th, may authorize private suits against state Congress from
(Barnes) Act of 1964, Congress, govt.’s and state officials in federal ct., which providing for a
acting under §5 of the are constitutionally impermissible in other private COA in the
Is the pwr of 14th Am, authorized fed contexts. fed cts contra state
the 11th sup cts to award $ damages govts as a means of
to the pwr of in favor of a private The prohibitions of the 14th Am are directed to enforcing the
sec 5 14th? Or individual against a state the States, and they are to a degree restrictions substantive
vice versa. govt found to have of State power. It is these which Congress is guarantees of the 14th
subjected that person to empowered to enforce, and to enforce against Am.
Lmt at least employment State action, however put forth, whether that
leg ends or discrimination on the action be executive, legislative, or judicial.
14th am basis of "race, color, Such enforcement is no invasion of State
religion, sex, or national sovereignty. No law can be, which the people of
origin." The provision the States have, by the Constitution of the U.S.,
(broad view) of a right to sue states in empowered Congress to enact
fed ct is challenged as a
violation of the 11th We think that the 11th Am, and the principle of
Am’s purported grant of state sovereignty which it embodies are
SI to the states. necessarily limited by the enforcement
provisions of § 5 of the 14th Am.
I: Whether, as against
the shield of SI afforded When Congress acts pursuant to § 5, not only is
the State by the 11th it exercising legislative authority that is plenary
Am, Congress has the within the terms of the constitutional grant, it is
power to authorize Fed exercising that authority under one section of a
cts to hear private COAs constitutional Am whose other sections by their
against the State as a own terms embody limitations on state
means of enforcing the authority.
substantive guarantees
of the 14th Am.
PA v. Union I: 1. Does CERCLA, as Ct answered YES and Rule: Congress may override the 11th Am and
Gas, (1989) amended by SARA, YES. However, the Ct authorize suits against state govts pursuant to
authorize suits against did so w/o a majority any of its constitutional powers, so long as the
(broad view, state govts in fed ct? opinion. 5 votes that law in its text expressly authorizes such suits.
broader than 2. If so, does Congress, CERCLA permits
Fitzpatrick) when legislating states to be sued for
pursuant to the CC, have monetary liability in (Seminole case says this is wrong)
the authority to create fed ct. Also 5 votes
such state Govt. that Congress, acting
liability? pursuant to its CC
authority, can create
such fed ct juris.
75
Seminole Congress passed a law (1) Yes, Congress Stevens: Congress may not,
Tribe of FL allowing states to be unequivocally PA v. Union was other than when
v. FL (1996) sued for failing to expressed its intent to right and the enforcing the 14th
J. Rehnquist negotiate in good faith abrogate the states’ majority’s decision Am’s substantive
Overturns w/ Indian tribes immunity in the Indian today prevents guarantees, authorize
P.A. Union regarding the formation Gaming Regulatory Congress from private suits against
(Barnes) of gaming compacts b/w Act. effectively ensuring state govts in
those parties. The law is (2) No, Congress did state compliance abrogation of the 11th
(Narrow challenged as a violation not act pursuant to a with fed rights: Am.
view) of the 11th Am’s SI. valid exercise of power, It prevents Congress
Tribe sues the Governor. as Congress cannot from providing a fed In order to validly
abrogate the states’ SI forum for individuals abrogate the states’ SI
I: (1) Whether Congress under acts passed to enforce fed rights Congress must do so
has "unequivocally pursuant to the against non- via § 5 of the 14th
expressed its intent to Commerce Power, like complying states. Am, and even here it
abrogate the immunity." the Indian Gaming 11th am is supposed must pass a 2 part
(2) Whether Congress Regulatory Act. to prevent suits test:
has acted "pursuant to a from citizens from (1) Has Congress
valid exercise of power." In Fitzpatrick the ct. other states unequivocally
held: through the 14th (Indians are duel expressed its intent to
Nugget: After Seminole Am, fed power citizens) of the tribe abrogate the
it is clear that Congress extended to intrude and state so in some immunity?”
may only authorize suits upon the province of ways using 11th to (2) Congress must
against st. govt.’s when the 11th Am and deny citizens of own have acted pursuant
it’s acting pursuant to § therefore that § 5 of the state which to a valid exercise of
5 of the 14th. 14th Am allowed language does not § 5 power.
• If a law is Congress to abrogate say about.
within that the immunity from suit
authority, then guaranteed by that Am. Souter: The 11th (Barnes) The Hans
the states can However, this case Am (narrow view) is court misread and
be sued for does not involve the not a legitimation of there was an
violating it. 14th rather it involves the archaic common- expansive and
• If a law is not an Art. I power, the law notion of SI, misguided view of
within that Commerce power, rather it merely the 11th amendment.
authority, then which was restricted means that fed cts This reading almost
states cannot be when Congress adopted cannot hear diversity prevents all suits.
sued for the 11th Am. The 11th juris claims where
violating it. Am applied to all one party is a state
portions of the Const in and the other is a
existence when it was citizen of another
adopted, therefore it state.
applies to Art. I. Hans was wrong: the
PA v. Union Gas was 11th does not apply
wrong: Congress to suits by citizens of
cannot abrogate the a state suing that
states’ SI pursuant to very same state in
the passage of an act fed ct., this ct.
based on any Art. I misread the 11th, it
power. Even when the only applies to
Const vests in Congress diversity
complete law-making jurisdiction;
authority over a The 11th has
particular area, the 11th nothing to do with
Am prevents Federal Q
congressional jurisdiction.
authorization of suits
76
3. Recent Decisions Concerning Congress’s Authority Under Section 5 to Authorize
Suits Against State Governements.
⋅ FL. Prepaid Postsecondary Education Expense
Board v. College Savings Bank and the United States
⋅ Kimel v. FL. Board of Regents
77
FL Prepaid v. Congress enacted (1) Yes, Congress Stevens, Souter, In order for
College Savings & legislation providing a unequivocally Ginsburg, Breyer: Congress to
US (1999) right to sue states in fed expressed its intent to Given the absence constitutionally
CJ Rehnquist ct over patent abrogate the states SI of real state abrogate the
infringement. The to allow private suits remedies for patent states’ SI
(SCOPE CASE) legislation is challenged against the states under infringement the pursuant to § 5
as beyond Congress’s the Patent Act. Patent Act was a of the 14th, it
(Barnes) 14th Am enforcement (2) No, Congress did proper must:
authority. not act pursuant to a congressional (1) show a
Cong has to create valid exercise of power exercise of its history or a
the right. The I: (1) Whether to abrogate the states power to ensure due pattern of
right must fall Congress SI b/c Congress cannot process and equal unconstitutional
under due process “unequivocally abrogate the states’ SI protection for all activity by
or equal protection expressed” its intent in under the CC and the patent holders States giving
the Patent act to Patent Act was not across the nation. rise to a need
abrogate the states’ SI. appropriate remedial for remedial or
Appropriate and (2) Whether Congress legislation under § 5 of Congress should preventative fed
plainly adapted acted pursuant to a valid the 14th. have the plenary legislation, and;
means that exercise of power in power to vest (2) limit the
congress will have abrogating the states’ The legislation must be exclusive juris over scope of the
to define the scope SI. "appropriate" under § 5 patent cases in the remedy by
of the problem that as that term was fed cts. making the
will necessitate a Nugget: Moves the rule construed in City of means
solution to the from city of Bourne Boerne. Patent law is fed proportionate to
problem that is (not over rest states In other words the act law and fed law the end of
historically ability in sec 5) not only must be: (1) remedial should prescribe the remedying the
documented arcatecture but in nature;(2) must not remedies. Even if constitutional
substantially lmt when define new state remedies might violations,
(Barnes) Return to they allow congress to constitutional be available in which gave rise
RECAP 2/28/2006: leg conduct under sec 5 substantive rights; (3) theory, it would to the need for
remedy has to be 14th. 2 part rule out of and the means used have been enforcement
proportionate to this if cong want people must be proportionate "appropriate" for (this portion is
the harm or to sue the state under to the end achieved. Congress to from Boerne).
CONGRUENT TO sec 5 1. congress clear i.e., (Fitzpartick, conclude that they
THE ENDS to intent to do so 2. Katzenback); would not guarantee (Barnes) this is
prevent overbroad whether cong had pwr appropriate plainly patentees due a good example
regulation or to authorize suit or was adapted; not process in of the dissent
punishment of too the leg an effectual or overbroad; must show infringement actions telling you
many people. constitutional exercise. widespread and against state there is a shift.
(new terminology) pwr persisting state defendants.
Remedy to harms used in a remedial deprivation or likely This ct. has never Difference b/t
analysis (not a test) fashion (profolaticlly, deprivation; narrowly mandated that architecture
but an analysis remedy imm) so long tailor the remedy to Congress must find and harm
YOU NEED TO as proportionality b/t the harm. “widespread and being
WATCH remedy and what the persisting congruent.
COURTS WORDS ends are. Can use sec 5 If profolatic and deprivation of
THAT DISCRIBE but just has to be proportionate and constitutional
appropriate and tailored in such a way. congruent have to have rights” in order to
plainly adapted it documented evidence employ its § 5
is constantly of action (strict or more authority - the
shifting lmt use of sec 5) majority made this
up!
The states were
given the
opportunity to voice
their concerns about
78
Kimel v. FL Bd of Congress extended (1) Yes, Congress Stevens, Souter, In order for
Regents coverage of fed age unequivocally intended Ginsburg, Breyer: Congressional
(2000) discrimination laws to for the ADEA to Congress’s power to Acts abrogating
O’Connor the States using its § 5 abrogate the states’ SI regulate the the states’ SI,
(rational basis authority to enforce the is federal cts. economy involves under § 5 of the
category) 14th Am. The extension In reading the statute in the power to 14th to be valid,
is challenged as outside its entirety, Ct says yes, regulate both the its substantive
The dissent the scope of this not explicit language, private and public requirements
invokes Wechsler’s authority. but the intent was clear. sectors of must be
Theory: (2) No, the AEDA, as employment. congruent with
The normal I: (1) Whether far as it abrogates state Congress’s power to and
operation of the Congress unequivocally SI, is not a valid authorize fed proportionate to
legislative process expressed its intent in exercise of Congress’s remedies against the
itself would the Age Discrimination § 5 14th Am state agencies that unconstitutional
adequately defend in Employment Act enforcement power b/c violate fed statutory actions that are
the states interests (ADEA) to abrogate the the substantive obligations is to be remedied.
from undue states’ SI. requirements the coextensive with its
infringement. IOW, (2) Whether Congress ADEA imposes on power to impose The act must
the political process acted pursuant to a valid state and local those obligations on be:
protects the state exercise of power in governments are the states in the first (1) remedial in
and the state can get abrogating the states’ disproportionate to any place. If Congress nature;
its remedy from the SI. unconstitutional can impose a (2) must not
people. Nugget: Congress can conduct that could be requirement on the define new
only abrogate the states’ targeted by the Act. States, it should be constitutional
Barnes isn’t SI pursuant to a valid Age is not a suspect able to provide for substantive
convinced if exercise of its § 5 14th classification under the a private right of rights; enforce
Wechsler’s theory Am enforcement power. Equal Protection suit to ensure state rights, do not
works in that the This means that the Clause. compliance. create rights.
political process means involved must be (3) and the
may not actually proportionate or It is clear that the Unwilling to accept means used
provide adequate congruent with the end ADEA is "so out of Seminole Tribe as must be
protection to the desired; the remedying proportion to a controlling proportionate to
state. States would of unconstitutional supposed remedial or precedent. The Ct’s the end
certainly need other violations of due preventive object that it judicial activism achieved.
similarly situated process and EP. cannot be understood manifested in cases i.e., appropriate;
states to support as responsive to, or like Seminole plainly adapted,
them. (generally ct picks level designed to prevent, represents such a not overbroad;
of rev based on unconstitutional radical departure must show
(broad part of the protected category) behavior." City of from the proper role widespread and
rule) 1. is there a 1. strict scrutiny Boerne. of this Ct that it persisting state
clear and (compel gov int) race, should be opposed deprivation or
ambiguious 2. Hight scrutiny whenever the likely
statement of the 3. rational basis- opportunity arises. deprivation;
statute. 2. whether everything else lumped narrowly tailor
ADEA was here (beauty of this the remedy to
appropriate question standard for Gov is it is the harm.
of cong pwr. so thin reasonable
means to achieve this
end imp any thing will
generally suffice
Review of the collision between the 14th and the 11th in the federal context:
Bitzer:
79
14th followed the 11th and § 5 was intended as a limitation on the states’
sovereignty.
Katzenbach:
§5 14th enactments must be “appropriate legislation” “plainly adapted” for the
purpose of furthering the aims of the 14th Am.
Union Gas:
Expanded valid § 5 enactments to laws passed pursuant to any Art. I power.
Seminole:
Contracted valid § 5 enactments to laws passed pursuant to enforce § 1 of the
14th.
Rule Development: Bourne/FLA Pre-paid
a) Congress may abrogate 11th when:
(1) Clear Statement
(2) Valid Exercise
(a)Congress § 5 enforcement (can’t be creation) of legislation
remedying §1 14th amendment violations of: (NEED A
SOILD METHOD OF ANALYSIS need better
framework here)
(i) EP
Pattern of State discrimination 
widespread harm  means must be
“congruent and proportionate” to the
ends desired.
ct. wants remedies w/limits
(ii) Due Process
Whether there is a protected class does not
matter.
Not as susceptible to Overbreadth as is EP.
4. Congress’s Power to Authorize Suit Against State Governments in State Courts

⋅ Alden v. Maine
80
Case Facts, Nuggets, Holding Dissent Rule
Issue
Alden v. A group of probation No. The ct held in a 5-4 Souter, Stevens, Congress does
Maine (1999) officers sued their decision that Congress may Ginsburg, and not have the
J. Kennedy employer, the State not use its Art. I powers to Breyer, dissenting: authority, under
of ME, alleging that abrogate the states' SI. Both its Art. I
(Barnes) the state had violated the terms and history of the Seminole Tribe was powers, to
agrees the overtime 11th Am suggest that States wrong: the 11th Am was abrogate the
w/dissent and provisions of the are immune from suits in their never intended to reach States’ SI from
thinks this is 1938 Fair Labor own cts. And more generally, fed Q juris and that Am suit in their
one of the Standards Act. the original understanding of does not represent the own cts.
better Following the Ct's the Constitution's structure archaic common law
dissents by decision in Seminole and the terms of the 10th Am doctrine of SI.
Souter. Tribe which held confirm that states retained
that States are much of their sovereignty Congress exercising its Class notes:
immune from private despite their agreeing that the conceded Art. I power
The suits in fed ct and Natl. Govt. would be S. when may unquestionably Kennedy builds
structural that Congress lacks exercising its enumerated abrogate such inferences upon
analysis here the authority to powers. immunity. inferences and
is highlighted abrogate that as a non-
in yellow and immunity, the suit Congress subjecting a non- ME is not sovereign w/ textually, uses
is Kennedy’s was dismissed in consenting state to suit, regard to Natl. dubious
structural Fed dist ct. Alden pursuant to its Art. I powers, legislation like the historical
analysis- then sued ME again in the state’s own ct is not FLSA. ME state cts references.
viewing in for violating the consistent w/ our are required to enforce
the FLSA, this time in Constitutional framework b/c fed rights granted by If there was no
constitution state ct. The state the states would never have Congress b/c of the Q about SI then
as a whole trial ct and the state ratified the Const had it Supremacy Clause Art. why did the
S. Ct. both held that allowed this type of VI, cl. 2. framers word
Kennedy is ME had SI and could congressional action to Art. III the way
Playing free not be sued by abridge their SI. The strain on the state they did – thus,
and loose private parties in treasury feared by the necessitating
with history their own ct. SI derives not from the 11th majority will not be felt the 11th Am in
and structure Am but from the structure of if the states do not the first place.
I: May Congress the Constitution. violate federally
use its powers under granted rights. The majority’s
Article I of the Nobody, not even the Const’s reasoning is
Constitution to most ardent opponents, States are soverign inconsistent w/
abrogate a state's SI suggested the document accept when Fed gov the notion of
from private suits in might strip the States of the exercise their art 1 the supremacy
its own courts? immunity. A sovereign’s pwr. Finds structural clause. Big
immunity in its own cts has arg rhetorical. point on silence
always been understood to be in the text
w/in the sole control of the
sovereign itself. Interesting b/c
Maj cannot
This does not mean the states state a
may disregard fed law; rather, constutional
the states should be given the textual claim
benefit of the doubt that they
will comply and if not there
are other options besides
allowing private suits in the
state’s own cts.
81
5. Congress’s Power to Authorize Suits Against State Governments in Federal
Administrative Proceedings
⋅ Federal Maritime Commission v. South Carolina
State Port Authority (Supp)
82
Fed SC Maritime Services Yes. In a 5-4 opinion, the Dissent, Stevens: State SI bars
Maritime asked the SC State Ports Ct held that state SI bars There are two main fed
Comm. v. Authority (SCSPA) 5 the FMC from weaknesses in the administrative
SC State times for permission to adjudicating a private majority’s opinion: bodies from
Port berth a cruise ship at the party's complaint against a (1) Alden was wrong, adjudicating
Authority SCSPA's port facilities non-consenting State b/c (2) the notion that complaints filed
(2002) in Charleston. Some fed administrative states must be afforded by a private
J. Thomas cruises offered by hearings involving an ALJ the dignity of separate party against a
Maritime Services would (administrative law sovereigns. non-consenting
allow passengers to judges- for agency state.
participate in gambling policies) are so similar to The 11th Am was never
activities while on board. Art. III ct’s proceedings meant to refer to SI as
The SCSPA repeatedly that they are for all intents the majority envisions
denied Maritime and purposes ct cases, and it: State SI does
Services' requests, as such the same (1) the 11th is a bar on not merely
contending that it had an restrictions on suits fed diversity SMJ not a constitute a
established policy of against non-consenting bar on PJ over states in defense to
denying berths in the states should apply. all fed hearings. monetary
Port of Charleston to Historically, the Ct noted, (2) The Const does not liability or even
vessels whose primary states were not subject to immunize the states to all types of
purpose was gambling. private suits in from a federal ct’s liability ; rather,
Maritime Services filed administrative process. it provides an
a complaint with the adjudications when the immunity from
Federal Maritime Constitution was adopted, Dissent, Breyer: suit.
Commission (FMC), and states were thus FMC is an exec branch
arguing that SCSPA presumptively immune agency not a judicial
violated the Shipping from such actions. ct. It is not exercising
Act by its denials. The Moreover, the Ct pointed the judicial power of
complaint was referred to the similarities between the US. 11th Am, no
to an ALJ, who found the FMC's proceedings matter what the
that the SCSPA, as an and civil litigation to interpretation, does not
arm of the State of SC, conclude that there was no apply.
was entitled to SI and basis for distinguishing
thus dismissed the between the actions for The constitution is a
complaint. Reversing on purposes of SI. "Although living document and it
its own motion, the FMC the Framers likely did not must adjust to the
concluded that state SI envision the intrusion on times, modern nations
covers proceedings state sovereignty at issue need administrative
before judicial tribunals, in today's case, we are agencies w/ real power.
not Executive Branch nonetheless confident that
agencies. In reversing, it is contrary to their
Ct of App found that the constitutional design."
proceedings were an
adjudication and thus
subject to state SI.
I:
Does a State's SI
preclude the FMC from
adjudicating a private
party's complaint that a
state-run port has
violated the Shipping
Act of 1984?
83
CHAPTER 3
THE FEDERAL EXECUTIVE POWER
A. Presidential Power
⋅ Introduction
Inherent Powers of the executive:
Madisonian view: Presidential powers are limited to those powers that are enumerated. Said that the first
clause of Art. II was only intended to settle the Q of whether the Executive would be single or plural
and gave the office a title
Hamiltonian view: Presidential powers are broad—Article II does not bind the powers of the president the
way that Article I does for congress.
⋅ Youngstown Sheet & Tube Co.. v. Sawyer
⋅ The Scope of Inherent Power: The Issue of Executive
Privilege
⋅ United States v. Nixon
⋅ Cheney v. US District Ct. For District of
Columbia
84
Case Fact Nugget, Issue Holding Dissent Rule/DP
Youngstown F: In order to Plurality Opinion Vinson dissent: Emergency DF: Jackson’s 3-tiered
Sheet & Tube v. prevent the feared Black conc: The Pres does not have position. There’s an inherent approach has been the
Sawyer, Black, interruption of inherent/implied powers. His power power that exists outside of the most widely adopted.
1952, supplies to troops in is limited to 1) the text of the const and congress. Here the
Korea, Truman, on constitution 2) and congressional Pres’s action was 1) temporary The Continuum of
Barnes: the eve of a Acts. The President is not a AND 2) congress was silent after Presidential Power – A
Currently Bush steelworkers’ strike, lawmaker but an enforcer. The the Pres had sent them notice. Relative Power Scheme
has cong ordered the Sec’y of Const. grants congress the power to The Pres was merely “taking (strongest to weakest):
authority to do Commerce to take make laws. care that the laws be faithfully (1) When the President
what is possession of the Jackson conc: This has come to be executed.” acts pursuant to an
necessary and nation’s largest the favored approach. 1) The express or implied
also that he has steel mills and keep President’s powers have maximum (SEE HORNBOOK) authorization of
commander and them operating. force when he acts pursuant to Want a broad pres Congress, his authority
chief pwr ie Congress was twice expressed or implied understanding for the move of is at its maximum, for it
FISA, here Ct informed of the P’s authorization by Congress or the national defense even to the includes all that he
says no to actions but const. 2) When Congress is silent, extent that they are enacting the possesses in his own
Comm & Chief remained silent. the Const grants the Pres certain congressional plan and notified right plus all that
pwr. Sec’y defended the power to act independently or congress what they are doing. Congress can delegate.
P’s actions, arguing concurrently with Congress. (2) When the President
that the P was Balanced approach. 3) The Pres’s Barnes: we are always deciding acts in absence of either
Barnes: acting within his power is at its lowest when he acts which is the default possistion a congressional grant or
jacksons power as chief contrary to the will of Congress or and Barnes agrees that the denial of authority, he
illustrating a executive and the const., express or implied. world is looking like this now can only rely upon his
relative pwr commander-in- Douglas conc: The pres’s power is See el shifia own independent
scheme chief. broad but not without limits: his powers, but there is a
approach powers cannot infringe on another zone of twilight in
I: Was the branch. Here the Pres usurped Clearly the pres has to have which he and Congress
President’s Exec Congress’s power: this is a seizure some art pwr, art II does not may have concurrent
If thinking r.e. Order taking and therefore Congress would need give braod pwr for admin but authority, or in which its
Douglas look at temporary to pay for it. we have them. distribution is uncertain.
art I or III as possession of Frankfurter conc: F takes the Therefore,
long as not private property approach of Jackson’s #3. Pres has congressional inertia,
usurping these without the consent inherent powers but the powers are Barnes: here this is structural to indifference or
pwrs ok he is of the property limited by congressional will. Here con and what they have done here quiescence may
only talking owners unconst? congress has made a conscious is that they want pres to act across sometimes, at least as a
about who has choice not give seizure power to the a number of categories practical matter, enable,
the pwrs. Chemerinsky: Pres. w/interactions with the other if not invite, measures
focus here on how bracnches steming from pwrs as on independent
Either you each of the (Barnes) Frankfuter seems like he commander and chief, when we presidential
accept we need opinions answer would allow congress to ceed compare these pwrs pres is pwr is responsibility.
an executive the question of some pwr around their authority. broad and the congress is (3) When the President
that does or when the President Douglas would fight this notion. enumerated. takes measures
does not need may act w/out incompatible with the
these pwrs and express expressed or implied
if so what are constitutional or will of Congress, his
these notions of statutory power is at its lowest
pwr authority. More ebb, for then he can rely
specifically when if only upon his own
at all may the constitutional powers
President claim minus any constitutional
executive powers of Congress
privilege? over the matter.
85
US v. Nixon, F: Nixon refused to Burger: The Ct.’s holding is very narrow: There is a general privilege Rule/A Balancing Test:
Burger, 1974, turn over tapes of but this gives way in the face of the fair administration of criminal justice There is a tension here
Barnes: his surreptitiously b/c of due process issues. between Art. II and III:
Strong recorded Communications
declaration that conversations that between the president
there is no had been (Barnes) ct cannot give this uncontested immunity b/c other branches and other exec. branch
absolute subpoenaed to assist may need to know this information and this upsets due process in the officials and advisors
privilege pres in the prosecution criminal judical process (balancing linked to textual commitment) in are generally privileged,
will get more of individuals in the sep/pwr arg. No wholesale secret ability to keep information on general but not absolutely
protection in Watergate break-in. scale. privileged, esp. where
foreign relations I: Are the the content of the
and national President’s What about some qualified privilege? Ct we have never based on general communications is
security. confidential confidentiality given deference to a request that would support a general in nature and
communications subpoena that would thwart a criminal investigation. (look at balancing not pertaining to
subject to an in other arenas and weigh the other side or cost to cong or citizens) This national security.
absolute privilege? is to say others would not get a fair trial if info not released by the
president.
Cheney v. US F: A lawsuit was H: Sounds Ginsburg and Souter Dissent: No class notes: The DP: Nixon is limited to
District Ct. for filed claiming that like the Ct. is decision should be affirmed and the District Ct. should its facts. Cheney hints at
D.C., Kennedy, an energy task telling the Ct. be allowed to narrow the scope of the discovery a broader level of
2004 force, chaired by of Appeals to requested. presidential immunity
Cheney, violated issue the writ. where the immunity is
Problem the Federal “The Ct. of invoked re: natl.
included private Advisory Appeals may security claims.
individuals in Committee Act. exercise its
this created Cheney sought a power to Barnes: here unlike criminal case of Nixon this is a civil Rule: For purposes of
commission. writ of mandamus issue the writ case. Look back to Luian and allen v wright Nixon ct discovery, a President's
in the Ct. of only upon a seemed to reject this. communications and
Appeals to vacate finding of activities encompass a
the discovery “exceptional vastly wider range of
orders. circumstance sensitive material than
I: Was the Ct. of s amounting would be true of any
Appeals correct to to a judicial ordinary individual.
conclude that it had ‘usurpation of
no authority to power’” or “a
exercise the writ b/c clear abuse of
the Govt. could discretion.”
protect its rights by
asserting executive
privilege in the
District Ct..
B. The Authority of Congress to Increase Executive Power

Two Approaches:
One sees separation of powers as appropriately resolved, whenever possible, between the Pres and
Congress; if the 2 branches agree, the courts only rarely should invalidate their actions.
The other sees sep’n of powers as constitutionally mandated and therefore envisions a crucial
judicial role in enforcing its requirements.
⋅ Clinton v. City of New York
86
Clinton v. City of F: Clinton used his Stevens: No, it may Kennedy Barnes thinks the
New York, newly acquired Line not. The president is Concurrence: line item veto is a
Stevens Item Veto power to effectively amending Although the good thing—cuts
Back in the news cancel 2 items of and repealing laws congressional the pork.
again. congressional which looks too attempt to curtail its
Barnes: spending, and the much like persistent and Rule: Congress may
Notes arg that there intended recipients congressional power. excessive spending not delegate its
is no pwr for sued his ass. Congress cannot is laudable, the legislative power to
executive to give the President Constitution requires the President, the
legislate in this way. I: May Congress this power b/c of a stability that President may veto
Here the arguments grant the President Sep’n of Power transcends the or sign into law
by the ct are that the authority to issues. convenience of the Acts in toto. B/c
the pres is cancel portions of moment. One branch distruptive.
legislating and legislation after it cannot decide to
should only has been enacted? transgress sep’n of (budgeting process
function here (look to Alden v. powers: on the hill) here idea
singing bills into Maine, silence is concentration of is to give pres pwr
law and not what the maj means power in the hands to selectively
amending them that the ct just of a single branch is eliminate pork. Arg
pwr belongs to cong determines what a threat to liberty. is that pres could
alone. Ct here is they want) Here Breyer Dissent: The eliminate the pork
stuck on the helpful to look at President is just projects of the other
structural analysis framers intent b/c choosing an option, party. Barnes there
of the constitution the constitutional like in a K—and this we lmt on the pwr
and the ct is hung convention does not alter the of cong placed on
up on a single nature of the pre- the pres.
presentment post existing K. Barnes:
bicameralism. this analogy is bad.
C. The Constitutional Problems of the Administrative State

⋅ Introduction
1887 creation of the ICC ushered in a new era for the federal Govt.: the creation of federal administrative
agencies with broad powers (legislative, executive, and judicial). E.g.: FCC, SEC, FDA, EPA, NRC,
etc
• Administrative agencies have exploded onto the scene during the past century and to many they are
disturbing because with a simple Congressional enactment and mission statement they are created, but they
wield, on a smaller scal,e a fusion of executive, legislative, and judicial powers (See e.g. FMC v. SCSPA).
• Federalist No. 47 (Hamilton):
o “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may
justly be pronounced the very definition of tyranny.”
• The Legislative Veto:
o A former check on the actions and regulations of admin. agencies was the Legislative Veto.
o By some form of disapproval either by a vote in a single house, both houses, or even a
Congressional Committee admin. agency actions/regulations were repealed.
o However, in INS v. Chada (1983) the S. Ct. declared the legislative veto unconstitutional.
• The Non-Delegation Doctrine And Its Demise:
o This doctrine stood for the principle that Congress could not delegate its legislative powers to
admin. agencies.
o However, since “the switch in time that saved nine” almost no congressional delegations of power
to admin. agencies have been declared unconstitutional, even extremely broad delegations.
o The “Intelligible Principle Test” has supplanted the Non-delegation Doctrine:
87
 Congress may delegate is legislative power to an admin agency if it lays down in the
legislative act an intelligible principle to which the person or body charged to exercise the
delegated authority is directed to conform, then such legislative action is not a forbidden
delegation of legislative power.
⋅ A.L.A. Schechter Poultry Corporation v. US
⋅ Panama Refining Co. Ryan
⋅ Mistretta v. United States
⋅ Whitman v. American Trucking Association
A.L.A. F: Congress H: No. The NIRA Rule: Congress cannot delegate unfettered authority
Schechter delegated authority to (sec 3) sets up no to the Pres to make any laws that he thinks are
Poultry v. an executive agency specific standards for desirable or necessary.
US, without prescribing the Pres to apply in
Hughes, specific standards for determining whether
1935 exercise of that to accept or reject Barnes: Congress does have the pwr to delegate
authority. proposed codes, but they have to provide architecture.
I: May Congress aside from the
delegate unrestrained general aims of
law making authority rehabilitation,
to the executive correction, and
branch or is this expansion.
unconstitutional ?
Panama F: Congress H: No. The law at R: The Constitution is flexible enough to allow the
Refining delegated to the issue contains Congress to assign to certain administrative
Co v. President the power nothing as to the instrumentalities to the ability to make subordinate
Ryan, to restrict or prohibit circumstances and rules—within prescribed limits—and to make
Hughes, the interstate and conditions under certain factual determinations to which legislative
1935 foreign transport of which the enactments shall apply.
Barnes: petroleum. Lmt was transportation of
always that deferred to state petroleum should be DP: In our modern administrative state, agencies
afraid of standards. forbidden. Congress DO make regulations.
giving too I: May Congress left the matter (violates strutuarlly/substaintivly sep/pwrs)
much pwr. delegate unrestricted entirely to the Pres, Barnes: Has to lmt tightly controlled the exec in
law-making authority without standard or some clear way so that there are boundaries that
to the President? rule, to be dealt with are congressionally imposed. Here the ct does not
as he pleased. see boundaries. (makes ref to CC puddle case)
can have rules that do not observe § lmts for
delegation to be effective there must be a § lmt
88
Mistretta F: Congress enacted H: Yes. Congress Scalia dissent: The R: “Intelligible principle”
v. US, a determinate has provided limits sentencing test: “So long as Congress
Blackmun, sentencing scheme to the authority “guidelines” have the shall lay down by
for federal crimes (maximums and force and effect of legislative act an
and created the averages), clear law. This is opening intelligible principle to
United States goals, and specified up a dangerous which the person or body
Sentencing purposes. precedent and Scalia authorized to exercise the
Commission to foresees all kinds of delegated authority is
devise guidelines that “expert” bodies, directed to conform, such
judges were insulated from the legislative action is not
obligated to use in political process to forbidden delegation of
sentencing. which Congress will legislative power. Also,
I: May Congress delegate lawmaking congress has power to
delegate legislative responsibility. delegate nonadjudicatory
authority (i.e. the functions as along as they
authority to do not infringe upon the
determine role of another branch AND
punishments for are appropriate to that
crimes) to an branch.
independent judicial DP: Although the ct. plays
agency? lip service to this test, no
legislative delegations of
power to administrative
agencies have been declared
unconst since the ALA
Poultry and Panama cases.
Whitman I: Does the Clean Air H: No. Congress has laid down an intelligible “We have almost never felt
v. Act delegate principle to which the EPA is directed to qualified to 2nd-guess
American legislative power to conform. The scope of the Act is well within Congress regarding the
Trucking the Administrator of the outer limits of our non-delegation permissible degree of policy
Assoc, the EPA in precedents. The word “sufficient” is held to judgment that can be left to
Scalia, contravention of the be limiting enough. those executing or applying
2001 constitution? Barnes: “intelligible principle” is the lmt the law.”
that will give guidance and create a space to
Requisite to protect act and be bound by this principle. Barnes: “BOX” is § or law
with an adequate Process argument: by ct it is difficult to and enactment and the
margin for safety. second guess boundaries as a function of inside is the rule and as
Name a discrete set time. long as the box/law has
of requirements. Substance arg: has to answer question of provided the rules ct will
intelligible prin. (if you have this question in not disturb this, here the
front of you. Pwr delegated an agency must case made it to the ct b/c the
set uniform standards that protect pub health ct below found too many
2nd have to ask Q re intelligible prin or has holes in the box.
Cong set some lmt on how pwr will be carried
out.
- Why does Congress need to be able to delegate?
- Efficiency/convenience- have to give some latitude to deal w/fact congress can’t foresee reg necessary
- No legislation is worse than at least SOME delegation
- Administrative bodies have expertise—work place issues, environmental issues, financial matters.
- W/exception of the line-item veto, the ct. has been reluctant to disallow delegation as long as it is somehow
limited.
2. The Legislative Veto and Its Demise
- Congress uses this to keep some sort of control of the power they’ve delegated away: allowed Congress (or one of
its houses, or even a committee) to overturn an agency’s action by doing something less than adopting a new law.
89
⋅ Immigration and Naturalization Services v.
Chadha

INS v. F: Congress authorized H: Yes, Congress Powell Conc: Worried that R: The Legislative
Chadha, either House of Congress cannot do this b/c of the breadth of this holding Veto violates Sep’n
Burger, to invalidate and suspend 1) presentment will create chaos b/c of the of Powers and the
1983 deportation rulings of the issues (Art I: need number of statutes that have constitution. We
Attorney General. to present to the such a veto. To him the cannot sacrifice the
Chadha had stayed in the Pres before it issue is clearly one of sep’n freedom from the
U.S. past his visa becomes law) and of powers. Congress arbitrary exercise of
deadline and was ordered 2) bicameralism impermissibly assumed a governmental power
to leave the country. (there are only 4 judicial function. Congress for efficiency
After a hearing the AG specific exceptions exceeded the scope of its reasons.
recommended the to this). constitutionally prescribed
suspension of Chadha’s authority and therefore the Barnes: real loser
deportation. The House ct. need not decide that all in this is the
of Reps voted NOT to legislative vetoes are invalid president or the
suspend the deportation. under the Presentment executive b/c that is
clauses. who does not get an
I: Did the Immigration White dissent: Says this opportunity to hold
and Nationality Act, holding is too broad. congress in check,
which allowed a one- (upsets stare decisis) when they take on
House veto of executive Favors the efficiency an executive
actions, violate the argument over the function undoing a
separation of powers structural argument. judicial function.
doctrine and/or the Under Sep’n of Powers
structure of the doctrine this is NOT a Ct uses basic
constitution? problem. W’s dissent structural
reminds Barnes of the K argument and if it
(Barnes) the leg veto is analysis in Breyer’s is traditional law
not dead but it had to dissent from Clinton v. making it needs
follow presentment and NYC. This is a conditional bicameralism and
bicameralism K and not a new law— presentment
Barnes finds this more
compelling than Breyer’s
argument. The Constitution
should be interpreted with
the flexibility to respond to
contemporary needs.
From Chadha (Powell Conc):

- Functionally, the doctrine of separation of powers may be violated in two ways: (roles of the branches)
- One branch may interfere impermissibly with the other’s performance of its constitutionally assigned
function. E.g. US v. Nixon
- Or the doctrine may be violated when one branch assumes a function that more properly is entrusted
to another. E.g. Youngstown, Chadha (concerned where cong pwr disruptive of the judiciary)
NORMATIVE OR PRAGMATIC CONCERNS:
Transprancy- to the ext the ct defends presentment and bicameralism
Equality issue- (Chadha) so that people are treated similarly under the law
3. Checking Administrative Power

⋅ The Appointment Power
⋅ Morrison v. Olson
90
Morrison F: The Independent H: Yes. This is an Scalia dissent: Criminal The Appointments
v. Olson, Counsel was appointed by inferior investigation and Clause, Art II, § 2,
Rehnquist, the Special Division of the appointment and prosecution are cl. 2, divides
1988 DC Circuit Ct. of Appeals thus congress may quintessentially executive executive officers
to investigate a high- provide for functions. The Pres into 2 classes:
ranking Govt. official, and appointment by the should have exclusive principal officers
the official responded by President alone, by control over those and inferior
claiming that the the heads of functions. Today’s officers.
appointment of departments, or by decision deprives the Barnes: says this
Independent Counsel was the Courts. Why is Pres of a purely executive more like a
unconstitutional. this an inferior function, thereby congressional
position: substantially affecting check than an
I: Is the appointment 1) Counsel is subject the balance of powers. unwarranted
constitutional? to removal by a power grab.
higher Executive
Branch official. 2)
Counsel is
empowered to
perform only
certain, limited
duties. 3) Counsel’s
jurisdiction is
limited. 4) Counsel’s
tenure is limited.
⋅ The Removal Power

- There is no textual support concerning the Pres’s authority to remove executive branch officials. The principle that
has emerged from the cases is that the Pres may remove executive officials unless removal is limited by a statute.
⋅ The Impeachment of Andrew Johnson
⋅ Myers v. US
⋅ Humphrey’s Executor v. US
⋅ Wiener v. US
⋅ Bowsher v. Synar
⋅ Morrison v. Olson
Myers v. US, F: President Woodrow Wilson H: Yes. The Pres. does not need Pres. has unlimited
(NOTE)Taft, removed Myers, a postmaster, to seek approval to remove removal power.
1926 without seeking Senate approval. someone from office. Art. I does
I: Does Pres. have power to remove not grant this power to the Barnes: 1. if
the postmaster w/o the consent of Congress and Art. II does not constitutional congress
the senate? limit the Pres’s power in this wanted to do this
respect. would be words 2. to
Barnes: Pres. needs to be able to fill the void the pres
remove people in his cabinet for structural or historical
efficiency reasons but what analysis is structure of
about due process issues? broad leg structure is
lmt
91
Humphrey’s F: Hoover appointed, and the Senate H: The Ct. found that the Act Myers distinguished:
Executor v. confirmed, Humphrey as a was constitutional and that Pres. has limited
US, (NOTE) commissioner of the (FTC). In 1933, Humphrey's dismissal on policy removal power for a
Sutherland, Roosevelt asked for Humphrey's grounds was unjustified. The Ct. non-executive agency
1935 resignation for political reasons. reasoned that the Constitution official—Congress
When Humphrey refused to resign, had never given "illimitable can have input.
Roosevelt fired him b/c of his policy power of removal" to the
positions. However, the FTC Act president. Myers was
only allowed a president to distinguished in that the officer
remove a commissioner for there was part of the exec. dept.
"inefficiency, neglect of duty, or The FTC is different b/c it was a
malfeasance in office." body created by Congress to
I: Did § 1 of the Federal Trade perform quasi-legislative and
Commission Act unconstitutionally judicial functions.
interfere with the executive power Barnes: The difference is
of the President? between the agencies and not the
power itself.
Wiener v. US, F: By the War Claims Act of 1948, H: The Pres. does not have the Pres. does not have at-
(NOTE) Congress established the War authority to remove individuals will removal power,
Frankfurter, Claims Commission for the from the WCC at will. The Ct. depending on the
1958 purpose of adjudicating claims for found that Congress had character of the
compensating internees, prisoners of intended to create a body that agency or
war, and religious organizations. was "'entirely free from the commission.
Wiener was confirmed as a member control or coercive influence,
of the Commission by Truman. direct or indirect,' of either the
Eisenhower requested Wiener's Executive or the Congress." This
resignation, Wiener refused. Commission needed to be free
I: Did President Eisenhower have from any coercive effects.
the authority to terminate Wiener's
membership on the Commission?
Bowsher v. F: Due to rising Govt. budget H: Yes. To permit an officer Congress cannot vest
Synar, deficits during the first term of the controlled by Congress to in itself the power to
(NOTE) Reagan Administration, Congress execute the laws would be a remove an officer
Burger, 1986 passed an act that was designed to back-door way of allowing charged with the
eliminate the federal budget deficit legislative veto power. The ct. execution of the laws,
by restricting spending during fiscal found that requiring good cause with the one exception
years 1986 through 1991. Under the for termination was not unduly of impeachment.
law, if maximum allowable deficit burdensome in light of the
amounts were exceeded, automatic purpose of independent counsel.
cuts, as requested by the
Comptroller General, would go into
effect.
I: Did the functions assigned by
Congress to the CG under the act
violate the doctrine of separation of
powers?
92
Morrison v. F: The Ethics in Govt. Act of 1978 H: No. The means of selecting New Rule: The
Olson, created a special ct. and empowered the independent counsel did not categories aren’t all
(NOTE) the AG to recommend to that ct. the violate the Appointments that important—
Rehnquist, appointment of an "independent Clause; the powers allocated to what’s important is
1988 counsel" to investigate, and, if the special ct. did not violate whether the removal
necessary, prosecute Govt. officials Article III; and the Act was not restrictions interfere
for certain violations of federal offensive to the separation of with the Pres’s
criminal laws. powers doctrine since it did not ability to perform his
I: Did the Act violate the impermissibly interfere with the constitutional duty.
constitutional principal of separation functions of the Executive
of powers—do the removal Branch.
restrictions impede the Pres’s ability
to perform his constitutional duty?
• Barnes says: note that removal doctrine is all judicially created since it’s not explicitly in the constitution.
b/f and in Morrison 1. (Humphries/Weiner) agency (legislative) and/or 2. Duties (quasi-“legislative” or “Judicial”)
3. Impediment to the exec duty.
D. Separation of Powers and Foreign Policy
Article I, §8: Congress has the power to regulate commerce with foreign nations, “To declare War, grant
letters of Marque and Reprisal, and Rules concerning Captures on Land and Water,” to raise and
support armies, and to “define and punish Piracies and Felonies committed on the high Seas, and
Offenses against the Law of Nations.”
Article II: The “President shall be Commander in Chief of the Army and Navy of the US, and of the Militia
of the several States, when called into the actual Service of the US.” The Pres. “shall have Power, by
and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators
present concur.”
Foreign policy issues are SO different now than during the time of the framers that it’s impossible to apply
their intent to today’s issues. Difficult b/c Constitution does not help us figure out which brach has
more pwr when they come into conflict.
⋅ Hamdi v. Rumsfeld
93
Hamdi v. F: Hamdi, an American H: 5-4 plurality rule: Souter and U.S. must provide
Rumsfeld, citizen, was arrested by the there was sufficient Ginsburg, U.S. citizens
O’Connor, U.S. military in legal authority to concurrence with labeled as “enemy
2004 Afghanistan. He was detain Hamdi as an the plurality that combatants” with
accused of fighting for the enemy combatant. 8-1 Hamdi had the a factual basis for
Now avoid Taliban against the U.S. and conclusion, however, right to challenge this classification
Sep/pwr arg w/ declared an "enemy that Hamdi must be in ct. his status as and the ability to
Elshifia to go combatant," and transferred accorded a meaningful an enemy rebut the Govt.’s
around Baker to a military prison in factual hearing. combatant. assertions at some
(non Virginia. A petition for a Disagreed, sort of hearing.
justiciable) writ of certiorari was filed Although Congress however, with the
sep/pwr does in federal district ct. there in authorized Hamdi's plurality's view that Barnes: what’s
not mean that an attempt to have Hamdi's detention (apparently Congress big deal of enemy
we defer to detention declared through the resolution authorized Hamdi's combatant status?
unchecked pwr unconstitutional. He argued that authorized the Pres detention. They say What rights are
where ct that the Govt. had violated to “use all necessary that the Non- being violated?
believes that Hamdi's V Amendment and appropriate Detention act says You get charged
there is gov’t right to DP by holding him force…” under the that the and have rights
malfeasance indefinitely and not giving AUMF), Fifth congressional provided for
the rule was him access to an attorney or Amendment due authorization must through 6th & 5th
supposed to be a trial. The Govt. countered process guarantees be explicit. They am due process
about form that the Exec. had the right, give a citizen held in also think there’s a Right to be heard.
during wartime, to declare the United States as an sep’n of powers Gov rational is
people who fight against the enemy combatant the issue. that b/c of enemy
United States "enemy right to contest that Scalia and Stevens combatant status.
combatants" and thus detention before a dissent: Since (or unlawful
restrict their access to the neutral decision- Habeas was not enemy combatant)
ct. system. The district ct. maker. The plurality officially 1.lawful
ruled for hamdi, telling the rejected the Govt.'s suspended under belligerents
Govt. to release him. The 4th argument that sep’n- Art. II, § 9, cl. 2, (armed forces
Circ Ct. of Appeals of-powers prevents the the exec. cannot other sides) 2.
reversed, finding that the judiciary from hearing detain someone innocents (lives
sep/pwr’s required federal Hamdi's challenge. without a hearing. interrupted by
courts to practice restraint What process does H Citizens are war) 3. Enemy
during wartime b/c “the get? The Mathews entitled due combatant- the
executive and legislative balancing test: process! Try them individual that
branches are organized to (1) What is the harm of for treason. does not fit into
supervise the conduct of the Govt. getting it Thomas dissent: the other
overseas conflict in a way wrong? We MUST be Says the Ct. should categories. What
that the judiciary simply is accountable to our butt the hell out. is important is
not” and therefore the higher constitutional Congress clearly that if a lawful
judiciary should defer to the purposes. gave this power to belligerent you
Exec “enemy combatant” (2) Burden that the the Exec under the are covered by
determination. Govt. will face in AUMF. Also the Geneva
I: (1) Did the Govt. violate providing more argues that this is convention.
Hamdi's Fifth Amendment process. non-justiciable
right to Due Process by political Q under
holding him indefinitely, (Barnes) once wrote sep/pwrs. The Ct.
without access to an enemy combatant does not have the
attorney, based solely on an paper. power to make this
Executive Branch balancing test
declaration that he was an determination.
"enemy combatant" who Baker and
fought against the United Goldwater comport
States? with this.
(2) Does the separation of
94
Barnes’ Separation of Powers Summary:
• Federal & State Govt. (Separation of Power)
o Ct. choosing between doctrines
 (1) Federalism as Supremacy (e.g. Gibbons v. Ogden)
 (2) Federalism as a function of shared power b/t federal Govt. and the states
• (a) Textually – e.g. 10th and 11th Amendment
• (b) Structurally – e.g. Kennedy says that the Const. implies sovereign immunity
(Alden v. Maine)
o Executive & Congress
 Textual: Art I v. Art II limits on power
o Structural: Art I:
 (1) Cong’s powers are enumerated
 (2) Exec’s powers are broad—the limits are much less defined in II v. I
o Prudential: the ct. decides whether it’s prudent to intervene
 if ct. wants to get involved: constitutional limits Q
 if ct. doesn’t want to get involved: it’s a Political Q (e.g. Goldwater: Ct. didn’t want to
get involved in a battle between Congress and the Pres)
1. Are Foreign Policy and Domestic Affairs Different?

- U.S. v. Curtiss-Wright Export Corp (See YOUNGSTOWN)
US v. Curtiss- F: Curtiss-Wright was H: The President is Barnes: Thinks this is R: President must
Wright charged with allowed much room to WRONG and the Pres be afforded more
Export Corp conspiring to sell operate in executing should not have the discretion in
Southerland fifteen machine guns the Joint Resolution lawmaking function. (Ala international
to Bolivia, which was and thus there is no shecter/Panama diff here affairs, therefore,
Arg: engaged in an armed constitutional foreign) in situations
Structural- conflict in the Chaco. violation. Making Need for where the non-
positionally This violated a Joint important efficiency/nimbleness delegation
need to be true Resolution of distinctions between doctrine would
as head of Congress and a internal and foreign apply if the
foreign affairs proclamation issued affairs, the Ct. argued Ask textual commitment matter were
Pwr Pres broad by President b/c "the President question from domestic it will
must enjoy Roosevelt. alone has the power to Youngstown probably not
inherent pwr speak or listen as a apply where the
b/c framers did I: Did Congress in its representative of the Reverse arg: if the matter is actually
not list that Joint Resolution nation," Congress may framers wanted this pwr related to Foreign
was a unconstitutionally provide the President they would have written it Policy.
commitment. delegate legislative with a special degree in Con not a tax code it
Cong was power to the of discretion in is setting a national
confined b/c President? external matters architecture
listed. which would not be Take Away:
afforded domestically. Most commentators said
that this is over broad and
dangerous b/c this foreign
affairs creates much
greater domestic
implications w/increased
exec pwr increase abuse
of pwr. Also leads to
dangerous foreign
arrangements
95
2. Treaties and Executive Agreements- Danger of the executive agmt if used liberally you
could get around the need to use treaties and never have to use Advice and Consent of the
Senate.
- Dames & Moore v. Regan, Secretary of the Interior

Dames & Moore v. F: In rxn to the seizure of the H: Ct. makes a Historical Barnes: Thinks the opinion
Regan, Rehnquist, U.S. embassy and nationals analysis. The Pres has broad is problematic. The Ct. is
1981 in Iran, Carter invoked the powers as long as he doesn’t saying the Pres only has the
1st International Emergency violate the Const. The Ct. power to make an exec.
Double move no Economic Powers Act held that the IEEPA agreement if Cong has at
textual authorization (IEEPA) and froze Iranian constituted a specific one point said that it’s okay
assets in the United States. congressional authorization – either implicitly or
2nd turn to history to When the hostages were for the Pres to order the explicitly. If Advice and
fill the void and then released in 1981, the Carter transfer of Iranian assets. Consent isn’t necessary for
could lead to 3rd administration terminated all The Ct. further held that an Exec. Agreement, then
structure or they legal proceedings against the although the IEEPA itself Congress’s assent, implicit
made it up Iranian Govt. and created an did not authorize the or explicit, shouldn’t matter.
independent Claims presidential suspension of Chose the world most
Cong enactment here Tribunal. Dames & Moore legal claims, previous acts palatable to you dangerous
and (Youngstown) attempted to recover over $3 of Congress had "impliedly pres or slow cong
pwr is the strongest million owed to it by the approved" of executive
here, he does have Iranian Govt. and claimed control of claim settlements Rule: The Pres. has the
the pwr behind him the executive orders were —International Claims authority pursuant to a
but it is not strongest beyond the scope of Settlement Commission. Congressional Act to
here. But now it presidential power. Since Cong has acquiesced promulgate Exec.
looks like a move in the past, it’s okay to do Agreements that forgive
away from maj. I: Did the president have the now. The Ct. emphasized some and settle other claims
Youngstown was authority to transfer Iranian the narrowness of its ruling, via binding arbitration
domestic this is funds and to nullify legal limiting the decision to the against foreign governments
foreign claims against Iran? facts of the case. and foreign citizens.
3. War Powers
Article I: grants Congress the power to declare war and the authority to raise and support the army and the navy
Article II: makes the Pres. the Commander-in-Chief
- Title 50. War and National Defense: Chapter 33—War
Powers Resolution
- Detention, Treatment, and Trial of Certain Non-Citizens
in the War Against Terrorism
The War Powers Act/Resolution
• Act was passed in 1973 in response to the disaster caused by the Gulf of Tonkin Resolution, which gave
Johnson and Nixon wide discretion to wage the undeclared Vietnam War as they saw fit.
o Pres. could take all necessary (measures) actions to repel attacks against the troops in Vietnam and
to end the hostilities.
• War Powers was intended to restore the Constitutional Balance by drawing the line between military ops
and war.
• 3 Main Provisions:
o Notification:
 President must notify Congress via/written communication w/in 48 hours of introducing
U.S. troops into hostilities or an area of likely hostilities.
96
 In every possible instance President must notify Congress before introducing U.S. troops
into hostilities or an area of likely hostilities.
o Consultation:
 After introduction President must periodically consult and appraise Congress of the
situation until U.S. troops are returned home.
o Time Clock:
 In the absence of (a) a declaration of war; (b) statutory approval, or; (c) national
emergency/attack the President is required to terminate the troop deployment w/in 60
days w/a possible 30 day extension to 90 days total.
• Is War Powers Constitutional Given The Division Of The War Powers Between The Congress And The
Executive?
o When can the President employ troops in the absence of Congressional approval?
o What form does the declaration have to take?
o Doesn’t the War Powers Resolution simply allow Congress to sit back and let the President take
the blame for any failed military adventures?
o Textual Problem:
 Art. II, § 2 President is the commander and chief.
o Structural Problem:
 Congressional action through inaction  troops come out once the 60/90 day time-clock
expires.
 Congress should have to pass an act.
o Textual Argument For:
 Congress has the power to declare war and raise and support the military.
o Prudential/PQD:
 Ct. has generally stayed away from the War Powers issue and has been very deferential to
the Executive’s War Power.
 Has only stepped in where there are other Constitutional rights at issue (Ex. Hamdi and
Due Process).
 Typically ct. has held no standing.
Are Military Tribunals Constitutional?

• Bush, based on his advisors interpretation of Ex Parte Quirin, (see Hamden Handout) passed an Executive
Order for Military Tribunals, which was accompanied by the DOD’s Procedures for Trials by Military
Commissions.
• Bush claims that it is necessary, per his function as Commander in Chief, that he have the power to detain
enemy combatants and create military commissions to try these detainees.
• Detention, Treatment, And Trial Of Certain Non-Citizens In The War Against Terrorism:
o Per the AUMF and §§ 821 & 836 of title 10 U.S.C. Bush created the following:
 Definitions and Policy:
• Act applies to non-citizens who the U.S. has reason to believe are or were
associated with Al Qaeda or assisted/harbored Al Qaeda members.
 Detention Authority of SecDef:
• Such individuals must be held humanely at locations chosen by the SecDef.
o Guantanamo was chosen b/c it was believed that if a non-citizen was
held outside the U.S. they had no Due Process rights.
 Authority of SecDef Regarding Trials:
• Individuals under the act will be tried by military commissions
• SecDef will see to the formation and structure of the commissions.
• Commission will not be bound by Art. III ct. procedure and the commission will
sit as both the trier of law and the finder of fact.
• After conviction or acquittal SecDef and/or President will have the final say.
97
 Obligation of other Agencies to Assist the SecDef:
• Other agencies who have these individuals are required to turn them over to the
SecDef.
 Relationship to Other Law and Forums:
• Individuals subject to the act will be solely under the jurisdiction of military
commissions.
 Exec War order is very much based on the policy of efficiency (pg 343)
- Ex Parte Quirin (SEE HAMDEN HANDOUT)
Ex F: A group of German trained H: B/c of the saboteurs’ Rule: The problem with the commission
Parte saboteurs came to the US by unlawful enemy though is that the president can override
Quirin, sub. They abandoned their combatant status, they its decisions and there are no appeals.
Stone, uniforms upon reaching shore. have no rights and thus Quirin is bad law but ends up being the
Their plan was to destroy no habeas (no const. basis for the detainee cases. But today’s
targets in the US. Pres protection). They can be context is totally different from the
appointed a Military tried by military tribunal 1940’s context that allowed this decision.
Commission to try ∆s for war b/c of common law.
crimes. (Barnes) unlawful enemy combatants we
I: (1) Was it constitutional for make it up as we go along. saboteurs
the Pres to appoint the Military were executed after the fact the Sup/Ct
Commission? (similar to can said not their proudest moment.
you detain) • Now exigencies not as great
(2) Was the Commission • Now war could be ongoing and
executed properly according to may not be such a good idea
the Articles of War? • Maybe more cooperation b/t the
branches
Detention and Tribunal Question
• Domestic Surveillance issue: US v. United States Dist ct. Case
E. Checks on the President
United States v. United States District Court (Handout)
• 1972 wiretapping case
• Attempt to blow up CIA building
• Q: whether pwr under art 2 is broad enough to create an exception to a warrant to
conduct a search of this nature
• Court agrees that national sec matters are of great imp however in the analysis
which looks like a balancing in Hamdi against the encroachment of privacy rhts
and freedom of expression. Given these dangers national sec int is against the
rights to privacy. Three gov arg:
1. special circumstances
2. ct does not have the knowledge (or expertise) to determine the P/C
determination (clearly the gov is making a sep/pwr arg or a non-
justiciable political question) See BAKER (6)
3. Nature of National Security (Privileged and Confidential
information vital to national sec inappropriate for the ct to review)
• Ct response: these rhts are too imp to leave to one branch this is one area where
the executive branch cannot be left w/out a check. The balancing test reveals that
this is too imp to leave unchecked, can be done w/a warrant and can end up
having a chilling effect
• Barnes: why is the Keith (US v. USDC) case imp the warrantless wiretap. 6
years later after the handout FISA explicit w/in § 1802 lmt pres pwr to foreign
98
affairs. What is the claim that this is not volatile of the CON, CASE LAW, or
FISA… the president. (pres claim now is that tracking the call from outside the
US to inside the US)
1. this force is authorized by use of force 911
2. inherently authorized as a function of commander and chief pwr : a
clarification letter called the white paper claiming the AUMF provided
pres pwr as commander and chief and then suggests that it is
specifically allowed as pres FOREIGN AFFAIRS PWRS which is a
link back to foreign affairs (BROAD CURTIS WRIGHT PWR NOT A
YOUNGSTOWN PWR)
3. Barnes Pres arg: Even in Hamdi, the authorization does not say
anything about detaining (cong action said that you can’t detain) even
the plurality says that pres is allowed to detain but it is not expressly
stated. The explicit statement of pwr would have to such… The one
claim is the § violated the other claim is 4th am jurisprudence. The
constitution here is the last saving per. In 2004, AG makes a request
to the ct that there is an Affidavit and the ct comes back after the fact
and approves them. FISA prob claiming a new prob and Pres
claiming exigency. Broad rule here in Keith look to delegation of pwr
cases, and if you believe Just Sutherland in Curtiss Wright it is
broad.
4. The space where domestic and foreign affairs is conflating and is not
new. The actual language comes from Curtis wright actions belong to
foreign affairs where they are external to the US. The actual def is that
those matters that effect a situation entirely external to the US. 1 year
later we found that YOUNGSTOWN was domestic. Using Sutherlands
def in Curtis you could have made a foreign affairs arg and the exc
claimed he was acting under his commander and chief pwr part of
what is going on here is that we have been accepting the cts
presumption w/out challenging a largely domestic b/c foreign (See
Dames Moore) WANT TO CHALLENGE US TO THINK ABOUT
RE EXEC PWR HOW IS THE CT CONSTRUCTING THE
QUESTION WHAT ARE THEY PRESUMING W/REGARD TO
THE AREANA THAT THE EXEC ACTION OR CONDUCT IS
TAKING. WE HAVE B/F SEEN THAT ACTIONS IN THE US
HAVE FOREN AFF EFF NOW WE SEE THE REV WHERE
FOREIGN → US ALL OF THE IMPACT TO THE US ASK WHAT
IS THE COURT PRESUMING FOUNDATIONALLY WE
AUTOMATICALLY LEAP TO THE CASE WHERE BARNES
BELIVES THAT DECIDING ON WHICH SET OF THESE CASES
APPLIES B/C MORE TRICKY AND PAY MORE ATTENTION TO
HOW THE CT STRUCTURES THE QUESTION AND WHEN
THAT IS DONE IT IS PRESUMED THAT CONTROLLING FACTS
OF JUR PRU APPLIES AS IN HAMDI IT LOOKS LIKE OCC
DECINGING SEP/PWR YOU WOULD GET A DIFF ANALYSIS
DEPENDING ON THE QUESTION THAT YOU ARE ASKING……
99
justiciability ex as strategically used by the ct control what answers we
get and it is not so apparent.
5. In both cases are there lmt on pres con pwr (younstown/curtis) beyond
congressional enactment there was no effect on his pwr and in keith
there is a 4th lmt. But he can always claim that the act is
unconstitutional (i.e. could cliam not required to follow FISA(barnes:
sepeciafically deals w/pres freedom for gathering info in foreign
arena) regarding Keith pres would have to arg severely lm to the facts
i.e. can’t use this pwr generally.
- Primary & Informal:
o Informal checks like public opinion and Congressional budgetary checks.
- Formal:
o Civil suits (re: activity outside the scope of his office, e.g. Whitewater & Paula Jones);
o Criminal suits
o Impeachment
1. Suing and Prosecuting the President

⋅ Richard Nixon v. Ernest Fitzgerald
⋅ Clinton v. Jones
2. Difference b/t two cases is the scope
100
Case Facts, Nuggets, & Holding Dissent Rule
Issues
Nixon v. Fitz, a civilian analyst Yes. The Ct held that the Dissent, White: Prez is immune
Fitzgerald with the USAF, testified Prez "is entitled to Doesn’t agree w/ from civil suits
(1982) before a congressional absolute immunity from the absolute nature related to his
Powell committee about damages liability of the immunity. official conduct. If
inefficiencies and cost predicated on his official w/in scope of
Barnes: 1st is overruns in the acts." This sweeping Attaching absolute employment.
there any production of the C-5A immunity, argued immunity to the BRIGHT LINE
immunity 2nd is it transport plane. Justice Powell, was a Office of the SHEILD
qualified or Roughly one year later function of the President, rather
absolute he was fired, an action "President's unique than to particular
for which Prez Nixon office, rooted in the activities that the
Structure, took responsibility. Fitz constitutional tradition President might
history and then sued Nixon for of separation of powers perform places the Qualified
sep/pwr damages after the Civil and supported by our Prez above the law immunity no go
Service Comm history." – reverting to the b/c:
We are talking concluded that his old notion that the In order for the
about § claims dismissal was unjust. There remain other King can do no President to carry
or remedies: impeachment, wrong. out his
constitutional I: informal public constitutional
Is the President immune perception and political Suit should be functions as the
SCOPE of his from prosecution in a capital constraints. allowed where the pinnacle of
office ct. if the civil suit for actions Analysis: Prez acts contrary executive power
pres making a taken in his official 1. sep/pwr to his and to “take care
decision w/in the capacity? 2. historically too constitutional and that the laws are
structure of his broad and untenable statutory duties. faithfully executed”
office there has for pres to deal w/this he must be given
to be an absolute 3. pragmatically pres This is nothing absolute civil
immunity should not have to deal more than a (bad) immunity for his
w/this b/c it would policy decision. official actions
disrupt his functioning during tenure as
as pres president
Ct said that pwr here
check is impeachment
101
Case Facts, Nuggets, & Holding Dissent Rule
Issues
Clinton v. Jones Jones sued Prez (1) No. In a unanimous Rule: A sitting prez does not have
(1997) Clinton, alleging that opinion, the Ct held that immunity from civil suits, which relate
J. Stevens while she was an AR the Constitution does not to conduct outside the scope of his
state employee, she grant a sitting Prez official duties.
suffered several immunity from civil
"abhorrent" sexual litigation except under A sitting prez is not entitled to a stay of
advances from then AR highly unusual such civil proceedings until the end of his
Gov. Clinton. Jones circumstances. After term in office, b/c the ct. system, itself,
claimed that her noting the great respect weeds out most frivolous claims at an
continued rejection of and dignity owed to the early stage, and facing the remainder will
Clinton's advances Exec office, the Ct held not interfere with the President’s ability
ultimately resulted in that neither separation of to fulfill his constitutional duties.
punishment by her state powers nor the need for Barnes: even though this is outside the
supervisors. Following confidentiality of high- scope the same rationale applies the ct
a Dist Ct's grant of level information can barred the suit in Nixon due to sep/pwr
Clinton's request that all justify an unqualified concerns and impediment to executive
matters relating to the Presidential immunity function concerns. Ct says no not same
suit be suspended, from judicial process. case as Nixon; b/c this will not interfere
pending a ruling on his with capacity of president
prior request to have the (2) No, the Prez is not Clinton arg:
suit dismissed on entitled to a stay of suit textual: broad pres pwrs (ct agrees)
grounds of presidential until his term has ended breadth of his art 2 pwr and that they are
immunity, Clinton b/c most frivolous not specifically enumerated therefore→
sought to invoke his claims are dismissed at structural: (ct says pres arg weak little
immunity to completely the pleading or SJ stages merit)judiciary should not interfere w/the
dismiss the Jones suit and the fed cts are more functioning of the exec office if ct
against him. While the than competent to messes with this they upset office of the
Dist Judge denied accommodate, fairly, the pres. (sep/pwr arg)
Clinton's immunity Prez’s needs.
request, the judge the structural arg fails b/c there is nothing
ordered the stay of any While the independence that they do in allowing the civil suit that
trial in the matter until of our govt's branches create that much prob the arg Clinton
after Clinton's must be protected under would have to make would be that there
Presidency. On appeal, the doctrine of sep of is a decrease or encroachment of pwr and
the 8th Circ affirmed powers, the Const does by allowing the case to go forward they
the dismissal denial but not prohibit these are not opening the flood gates and
reversed the trial branches from finally the ct dismisses their own arg
deferment ruling since it exercising any control from
would be a "functional over one another. This, Distinguishes: NIXON – one reason that
equivalent" to an the Ct added, is true they did this was that they did not want
unlawful grant of despite the procedural to bog down the pres office/here they
temporary presidential burdens which Art III claim that this is not what they are doing.
immunity. juris may impose on the Problem: as in Hamdi Barnes has a
time, attention, and problem w/not asking a more
I: resources of the Chief foundational question should be whether
(1) Is a serving Exec. this si the type of case given conflicting
President, for separation pwrs among the diff branches whether
of powers reasons, the ct should hear this at all?(never ask
entitled to absolute justiciability Q or if this could result in
immunity from civil dealing in standards they have no
litigation arising out of business. Encroaching is not the same as
events which transpired justiciability (that is prudential if should
prior to his taking hear at all)
office?
102
2. Impeachment
• There is a strong argument that impeachment and removal should be the sole remedy against the President.
• But, on the other hand no principle is more basic than the idea that no person is above the law and that this
principle justifies allowing the President, like others, to be charged and tried for crimes.
• Art. II, §4 Executive Officers Subject To Impeachment:
o The President, Vice President and all civil Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.
• Art. I, §2 House Has The Sole Power To Bring Articles Of Impeachment:
o The House of Representatives shall … have the sole Power of Impeachment.
• Art. I, §3 Senate Has The Sole Power To Try Impeachments:
o The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the Concurrence of two thirds of the
Members present.
• Clinton Impeachment:
o Art. I: Perjury before Grand Jury
o Art. III: Obstruction of Justice
• Two Major Unresolved Qs About These Provisions:
o (1) What are “High Crimes and Misdemeanors?”
o (2) What procedures must be allowed/followed when there is an impeachment (See Nixon v. U.S.)
 Non-justiciable PQD
CHAPTER 4
LIMITS ON STATE REGULATORY AND TAXING POWER
Art. VI of the Constitution – The Supremacy Clause Controls when:
Congress has passed a valid law.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of the United States, shall be the S.
Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”
Where there is no direct Preemption of state law:
There remain two ways federal law can invalidated a state law:
The Dormant/Negative Commerce Clause:
State and local laws are unconstitutional if they place an undue burden on interstate
commerce even where Congress has not acted.
The Privileges and Immunities Clause Art. IV, §2:
The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
Two Views On Federal Preemption of State Law:
(1) Shared Power Federalism: State and local laws should only be preempted where Congress clearly
does or intends so and preemption does not violate another portion of the Constitution.
(2) Federal Law As S.: Preemption is not something to avoid but should be found whenever doing so
will better effectuate the interests of federal law.
Forms of Preemption: Keep in Mind Supremacy Clause and Federalism in this section
(1) Express: [Ex. Cipollone]
ERISA:
“the federal Employee Retirement Income Security Act of 1974 supersedes any an
all State laws insofar as they may now or hereinafter related to any employee
benefit plan.”
(2) Implied
103
(i) Conflicts Preemption- both relevant federal and state law [Ex. FL. Lime & Avocado
Growers Gibbons v. Ogden & Gade v. National Solid Wastes Management Assn.]
(ii) State Law Impedes A Federal Objective [Ex. Pacific Gas]
(iii) Federal Law Occupies The Field fed gov wholly and solely regulator [Ex. Hines v.
Davidowitz]
Congressional Intent and Ct.’s View of Federalism:
The primary issue regardless of which type of preemption is present is Congressional Intent.
How willing should the courts be to find preemption?
What is the courts attitude towards federalism?
A. Preemption of State and Local Laws
1. Express Preemption
- Whenever Congress has the authority to legislate, it can make fed law exclusive in a field.
- Clearest way for Congress to do this is to expressly preclude state or local regulation in an
area.
- Thus, some fed laws contain clauses that expressly preempt state and local laws. i.e., ERISA
(see above)
⋅ Cipollone v. Liggett Group
104
Cipollone v. Rose Cipollone died at 58 In a complicated 7-to-2 Dissent, Blackmun When
Liggett from lung cancer after decision, the Ct held that -[Congressional Congress
Group (1992) smoking for 42 years. federally mandated intent was not expressly
Before her death, she and warnings do not bar explicit here.]: prohibits
J. Stevens her husband sued several smokers from suing certain state
cigarette manufacturers in manufacturers under state Preemption should action via a
fed ct for damages resulting personal-injury laws. The not be inferred valid
from her lung cancer. A justices ruled that such beyond that which is congressional
trial ct judgment of suits cannot be based on explicitly stated in statute the
$400,000 was reserved in claims that cigarette the Congressional federal law
the U.S. Ct of App. advertising failed to warn statute. preempts the
smokers of smoking (the ct should have state law,
A fed statute required cig dangers. But the justices applied a textual making the
packages to contain a also ruled that individuals interpretation of the state law null
warning that the surgeon may press claims alleging statute.) and void.
general has determined that the tobacco companies
that cig smoking is made fraudulent or Neither version of Congress
dangerous to one’s health, inaccurate statements in §5(b) of FCLAA is must be
and banned advertising in their advertising or that the unambiguous as to express in its
any medium of electronic companies conspired to what state action it intent to
communication subject to mislead people about the preempts. preempt state
the FCC’s juris. Statute health hazards of smoking. law.
also contained a preemption It is not clear that
provision that stated: No The FCLAA mandated either version was “Until you
requirement or prohibition cigarette warnings ever intended to strip it away
based on smoking and expressly pre-empt the relate to state law we will
health shall be imposed Cipollones' common law damage claims. assume the
under state law w/ respect failure to warn claim state may do
to advertising or promotion against cigarette All of the π’s claims it,” Barnes.
of any cig packages labeled manufacturers b/c state should have been
in conformity w/ the common law claims against permitted. Slightly
provisions of this Act. cigarette manufacturers for undermines
not providing further preemption
I: warnings and education and the
Do federally mandated about the serious health Supremacy
cigarette warnings pre-empt risks posed by smoking Clause.
the Cipollones' common would amount to an
law claims against cigarette additional requirement or
manufacturers? prohibition under §5(b) of
the 1969 FCLAA [the other
claims are permitted
though].
In a preemption case there

is a presumption for the
state/“Shared Powers
Federalism”:
There is a presumption
against preemption where
the state is legislating with
its Police Powers (i.e. for
the public, health, safety,
and welfare)
105
2. Implied Preemption
a. Conflicts Preemption
If a fed and a state law are mutually exclusive, so that person cannot comply w/ both, the state law is
deemed preempted.
If the fed Govt. sets a minimum standard, the floor of regulation, then a stricter state law is not in
conflict with the fed law and would not be preempted.
HOWEVER, if the fed Govt. made the express decision to allow, for example, pollution above “that”
level, then a stricter state regulation is in conflict w/ the federal law.
Conflicts Preemption “Inevitable Collision”: Where there is no “inevitable collision” between
a federal and state law within an area where Congress may permissibly legislate Congress
must explicitly preempt the state law in Q.
⋅ FL. Lime & Avocado Growers v. Paul, Director,
Department of Agriculture of California
Case Facts, Nuggets, Issue Holding Etc Rule
FL Lime & Facts: FL assoc. of citrus farmers No, §792 of the CA Agricultural Rule: Where there is no
Avocado is suing CA b/c of a CA law that Code does not impermissible inevitable collision
Growers v. requires avocados to have at least conflict with fed law b/c the FL between a federal and
Dept of Ag, 8% oil in order to be sold or growers may simply leave the state law within an area
CA (1963) transported in CA. avocados on the trees a little where Congress may
p. 374 longer before shipping to CA. permissibly legislate
J. Brennan A Federal Marketing Order Congress must explicitly
[Calendar maturity] approved by There is no “inevitable preempt the state law in
Conflict the Sec. of Agriculture gauges the collision” between the state law Q.
Preemption maturity of FL avocados w/out any and federal law. b/c could
significance placed on oil content. comply with both Problem is that this
imposes the calif reg
I: This case presents the Q of the The S. Ct. will not conclude that scheme on FL. Q: is
constitutionality of the California Congress legislated ouster of CA then shouldn’t fed
statute insofar as it may be applied statute adopting percentage-of- standard be the standard
to exclude from California markets oil test as gauge of maturity of and the answer is not
certain FL. Avocados which, avocados by federal marketing necessarily.
although certified to be mature orders adopting calendar test of
under the fed regs, do not maturity in absence of Barnes: this case is
uniformly meet the CA unambiguous congressional horrible b/c it is
requirement of 8% of oil. mandate to that effect. complete opposite of
Wsh apple case. Court
The Agricultural Adjustment says rules have to be
Act disclosed no congressional such where it is imp to
design that California statute follow both at the same
adopting percentage-of-oil test time.
as gauge of maturity of
avocados should yield to federal
marketing orders adopting
calendar test of maturity of
avocados grown in FL..
b. Preemption B/c State Law Impedes the Achievement of a Federal Objective

- Federal Objective Preemption: Even if the fed and state laws are not mutually exclusive,
preemption will be found if the state or local law interferes w/ attaining a fed legislative goal.
⋅ Pacific Gas & Electric Co. v. State Energy Resources
Conservation & Development Commission
106
Pacific Gas v. St. Facts: A CA law dictated White: NO. In a unanimous decision, the Ct State law is preempted if
Energy that before additional held that the CA law did not impinge upon it stands as an obstacle to
Resources nuclear power plants could congressional authority. The Ct found that b/c the accomplishment of
Comm. (1983) be built, the state energy the rationale for enacting the law was an the full purposes and
p. 375 comm. had to determine that economic one, it did not interfere with fed regs objectives of Congress;
there would be adequate governing nuclear safety. The Ct held that however, the Ct will not
J. White storage capacity for spent Congress had left "sufficient authority in the interfere where there is a
fuel rods. Two utility states to allow the development of nuclear permissible basis for the
companies challenged the power to be slowed or even stopped for state law.
law, arguing that its economic reasons" and that the cts should not
provisions had been rework the division of regulatory authority In enacting the AEA,
preempted by the fed created by Congress. Congress intended that
Atomic Energy Act of 1954. the fed Govt. regulate the
radiological safety
I: Did the CA law This is a Federalism Case: aspects involved in the
unconstitutionally intrude Shared Powers Federalism – construction and
into areas of fed authority as Barnes loves this stuff!!! operation of nuclear
defined by the AEA? Ct does not give a reason as to what frustrates a plants but that states
federal objective. retain their traditional
Problem here is pretext responsibility in the field
1. Express preemption? Need explicit (e.x. we of regulating electrical
intend to lmt states as follows)statement by utilities for determining
congress. You can have explicit statement that Qs of need, reliability,
needs to be int [purpose/lmts] costs and other related
2. where you don’t have that Implied state concerns.
* a. field ? either [textually/intimately
blended..]
b. Conflict? [impossibility]
*c. Catchall [impediment..] start
w/purpose or intent of § and have to anlysis
text gov/prevent or whether state is functioning
outside traditional function of the state and then
the state is acting outside of a traditional
function
The starred factors a and c are tough if we get
this say it is tough b/c it is subjective
c. Preemption B/c Federal Law Occupies the Field

- Even if the federal law does not expressly preempt the state law, preemption will be found if
there is a clear congressional intent to have federal law exclusively occupy an entire field of
law.
- Immigration and alien registration is one such field of exclusive federal law.
⋅ Hines, Sec’y of Labor and Industry of Penn. v.
Davidowitz
⋅ Lorrilard Tobacco v. Reilly
107
Hines v. F: PA passed an H: Yes. B/c Stone dissent: Says R: Federal laws
Davidowitz, Black, Alien Registration immigration is a the Ct should be regarding foreign
1941 statute that required function of foreign looking to policy occupy that
Implied Field resident aliens to affairs and the congressional intent. entire field and thus
Preemption: register once per federal Govt. has He says that there’s the states cannot
implied b/c that is year, and to carry exclusive control no proof in the Act enact their own laws
what the ct decides with them, at all time, over foreign affairs, that the Govt. was that relate to foreign
an alien registration the states cannot attempting to gain policy.
ID card. A year later, enact laws in that exclusivity. Says that Barnes: Ct. is
Cong enacted a field. for preemption, it making a policy
federal Alien must be express. Or choice here that it
Registration Act with at least a clear would be best for
different statement of intent federal Govt. to have
requirements and and purpose. exclusive control
penalties – most over immigration
notably the fed Act Barnes: using issues but is hiding
did not require the originlist/framers int behind a structural
alien to carry the card arg they claim claim (the regulation
at all times. foreign affairs of aliens is
including intimately blended
I: Is the Federal Act immigration and with foreign policy
S.? naturalization to the and what you need a
fed and not to the federal Govt. for).
states using the sup The ct is also using a
clause b/c foreign textual argument in
affairs includes relying on the
treaties the state supremacy clause in
cannot interfere regard to treaties.
w/this or upset fed
law. In order to be
effective this would
have to be a field that
is soley in the reg of
the fed gov.
When is a field exists
if there are textual
commitments then
there are no answer
that the area is the
sole domain of fed
reg. In an area
where regs are
intimately blended,
the state should yield.
Prob then b/c that the
ct can make up law
as it goes along i.e.
structurally this
standard of
intimately blended
Prob highly
subjective
108
Lorillard Tobacco F: The AG of Mass. H: Yes. Mass’s Stevens dissent: Barnes: In the box
Co. v. Reilly, enacted regulations argument was that it Says that there should v. outside the box of
O’Connor, 2001 governing the wasn’t making these be an federal regulation.
Barnes: Express advertising and sale regulations based on overwhelmingly Also: Just b/c the
preemption of cigarettes, health so it’s not “in obvious signal from preemption is
smokeless tobacco, the box.” But the Ct Congress that state express does not
1. textually fed has and cigars. Tobacky says that the law should be mean that there’s no
to indicate to state Co. filed suit regulation was preempted. Part of statutory
that (written) that challenging the designed to include what he is saying is interpretation – the
state is lmt in regulations. Lorillard anything that that the int and “wrinkle:” the line
ability to regulate asserted that under touches upon purpose was to between express and
State says that they the Supremacy smoking and health regulate part a under implied blurs.
are not violating Clause the cigarette and so Mass is Barnes notes.
lmts of § advertising preempted. Question then b/c
regulations were what do you do w/
preempted by the Barnes: ct 1. ambiguous language.
Federal Cigarette express textual Take away:
Labeling and commitment Text alone is not
Advertising Act a. Cong int and helpful. It requires
(FCLAA), which purpose (not what int by the ct primarily
prescribes mandatory they say it is what that the int was to
health warnings and they tell us it means) expressly lmt the
that the regulations b. clear int of states ability to
violated the 1st and congress to augment or supp the
14th Ams. supersede local or fed reg in what ever
I: Does the FCLAA state pwr area the fed gov is
preempt portions of reg in. To some ext
Mass's cigarette looks like imp b/c
advertising still have to int
regulations?
Summary of Preemption:
Origin:
Art. VI, cl. 2 The Supremacy Clause
Preemption exists where federal and state laws collide (sometimes).
Federalism As Supremacy:
Broad application
Federalism As Shared Powers:
Narrow application
Express Preemption:
Explicit statutory language [however, still have to interpret the words] (Ex. Cippolene and Lorillard)
Implied (Congressional Intent):
Conflict (Physically impossible for the two to coexist):
Standard comes from FL. Avocado
Field (Congressional Intent):
Congressional control over the field is Exclusive!
Standard comes from Hines v. Davidowitz [combo of structural and textual arguments]
Catch All/Impede Federal Objective (Congressional Intent/Policy Decision):
Pacific Gas & Electric:
Ct. must find that Congress intended a federal objective that was not to be impeded
by related state laws.
Barnes Test: Use for Express and Implied Field Preemption:
(1) Look at the explicit language & intent of the statute.
(2) Look at the intent and purpose of Congress.
(3) Congressional intent must be strong enough to override the Presumption that the state law is valid.
109
Barnes’ Wrinkle!:
Express & Implied = distinction?!
There really is no distinction here because the ct. must interpret the words and intent of
Congress in every preemption case, regardless of whether or not the cases is
characterized as express or implied preemption.
B. The Dormant Commerce Clause

- The dormant commerce clause or negative commerce clause is the principle that state and local laws are
unconstitutional if they place an undue burden on interstate commerce.
 This power is inferred from Art. I, § 8’s exclusive grant to Congress of the ability to regulate
interstate and foreign commerce.
 If Congress has legislated the issue is whether federal law preempts the state of local law.
 But, even if Congress has not acted or no preemption is found, the state or local law can be
challenged if it excessively burdens interstate commerce.
- Commerce Clause has 2 Distinct Functions:
 (1) An authorization for congressional actions;
 (2) To limit state and local regulation that affects commerce.
- Privileges & Immunities Clause Art. IV, §2:
 If the state of local law discriminates with regard to a fundamental right or important economic
activities, a challenge can be brought under the P & I’s Clause.
- Equal Protection:
 A law that discriminates against out of staters may also be challenged under the 14th amendment’s
Due Process Clause.
- The Central Q in Dormant Commerce Clause Cases:
 Whether the state or local law discriminates against out-of-staters or whether it treats in-staters and
out-of-staters alike.
- Three Steps of Inquiry:
 (1) How is it determined whether a law is discriminatory?
 (2) What is the level of analysis for laws that are discriminatory?
 (3) What is the analysis for laws that are non-discriminatory?
- Barnes Qs:
 (1) What is the ct.’s opinion of the commerce clause
 (2) What does it mean for the ct?
 (3) Should we require explicit Congressional override of state actions viewed as conflicting or with
or burdening interstate commerce?
 (4) What is the test the ct. is using to determine whether or not the state law unduly burdens
interstate commerce?
- Major Exceptions to the Dormant Commerce Clause:
 (1) If Congress approves the state or local action.
 (2) The Market Exception:
• A state or local govt. may favor its own citizens in receiving benefits from the state or
local governments or in dealing with govt. owned business.
1. Why a Dormant Commerce Clause?

Diff commerce clause is textual/Dormant is not textual
Traditional Arguments For A Dormant CC:
(1) The Historical Argument:
The framers created the constitution to end state isolationism and protectionism and to foster a truly
national economy.
(2) An Economic Justification:
The economy is better off w/out state protectionism/isolationism.
(3) Political Justification:
Out-of-staters, who have no political representation in other states should not be harmed by the laws of
other states.
Argument Agaisnt For A Dormant CC:
110
Thomas’ Dissent in Camps Newfoundland/Owatonna Inc. v. Town of Harrison, 520 U.S. 564 (1997)
[the Ct. held that Maine's tax exemption statute violated the dormant commerce clause
since it selectively awarded greater tax benefits to those institutions which served mostly state residents,
while penalizing institutions that conducted mostly interstate business.]
Statement:
Ineligible for any exemptions, Camps challenged the constitutionality of Maine's tax
exemption statute.
Facts/Procedure:
Maine's tax scheme exempts charitable institutions incorporated in the state, and provides a
more limited tax benefit for institutions which principally benefit non-Maine residents.
Camps Newfound/Owatonna Inc. (Camps) operates a children's church camp in Maine and
finances its operations through a $400 per camper weekly tuition charge. The majority of
its campers are out of state children.
Issue:
Ineligible for any exemptions, Camps challenged the constitutionality of Maine's tax
exemption statute.
Dissent (Thomas):
The negative commerce clause has no basis in the Constitution.
Exclusivity and pre-emption by silence do not justify the negative commerce clause.
All of the negative commerce clauses decisions are purely policy decisions.
Belongs to the area of congress not the courts
⋅ Hood v. Du Mond
Hood & Sons, Inc. v. F: The Hood Co., a Mass. Yes, NY’s denial of Hood’s Framework/Test: A state may not
Du Mond, Comm. of co., owned 3 milk- application for a license to Police Power v. use its admitted
Agri. & Markets of receiving stations in NY. open a new milk receiving Economic powers to protect
NY, 336 U.S. 529 The co. distributed milk station is an Suppression health and safety
(1939) from these facilities in unconstitutional burden on of its people as a
Boston. interstate commerce b/c basis for
[A state may regulate in When the company sought "every farmer and every suppressing
a way that effects a license for another craftsman shall be competition.
interstate commerce if receiving station in NY, encouraged to produce by Barnes: Cardozo
it has a legitimate state officials denied its the certainty he will have quote every one
public policy police request: on the grounds free access to every market has to sink or
power goal, however, a that expanding Hood's in the Nation." swim together.
state may not use its facilities would reduce the The states are economically
admitted powers to local supply of milk and independent and we want to When
protect health and result in destructive foster and encourage a protectionist to
safety of its people as a competition. The co. national economy not foster privillage that
basis for suppressing appealed the case to the S. "fantastic rivalries. . .and burden is per se
competition.] Ct. reprisals," which would unacceptable.
ensue if the states were
p. 382 I: Was NY's denial of the allowed to enact local
license unconstitutional protectionist measures.”
under the [Dormant] CC?
Barnes Qs:
(1) What is the ct.’s opinion of the commerce clause?
Needed too prevent economic suppression and protectionism.
Comes from out history and our law.
National Concern v. Local Concern.
(2) What does it mean for the ct?
A negative power to invalidate state laws that represent economic suppression and protectionism.
Distinguishing between National Concern v. Local Concern.
Not all areas of Commerce demand Congress’s Exclusive power.
(3) Should we require explicit Congressional override of state actions viewed as conflicting or with or burdening
No, where the state law represents economic suppression or protectionism congressional override does not
have to be explicit.
National v. Local Concern is key.
(4) What is the test the ct. is using to determine whether or not the state law unduly burdens interstate commerce?
Motivation for the state law:
111
National Concern v. Local Concern
Uniformity needed v. Exclusivity not required
2. The Dormant CC Before 1938:

The argument against the Dormant Commerce Clause is in part textual:
The framers could have included a provision barring the states from interfering with interstate commerce.
Separation of Powers Argument Against the Dormant Commerce Clause:
Congress should be the branch that identifies and addresses instances where state and local laws so burden interstate
commerce that they must be invalidated.
Support for a Dormant Commerce Clause has been traced back to Gibbons v. Ogden:
Marshall said: “when a state proceeds to regulate commerce with foreign nations, or among the several states, it is
exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to
do.”
Gibbons stood for a police power v. commerce interference distinction.
Marshall drew a distinction between state police power regulation, i.e. regulation for the public health, safety, or
welfare, which are gen. valid and a state exercising the exclusively federal power over commerce.
Wilson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829) [Before 1938 the whether or not a state law was
void under the Dormant CC hinged on whether the ct. characterized it as a permissible exercise of state police power, or in the
alternative as an undue burden on interstate commerce.]
Facts/Procedure:
State constructed a damn that effected access to an interstate waterway.
Holding:
Ct. rejected a challenge by the owner of a federally licensed ship, b/c construction of the damn was a
permissible exercise of the state’s police power.
Rule:
Before 1938 the whether or not a state law was void under the Dormant CC hinged on whether the ct.
characterized it as a permissible exercise of state police power, or in the alternative as an undue burden
Mayor, Alderman and Commonality of NY v. Miln, 36 U.S. 102 (1837) [Before 1938 the whether or not a state law was
void under the Dormant CC hinged on whether the ct. characterized it as a permissible exercise of state police power, or in the
alternative as an undue burden on interstate commerce.]
Facts/Procedure:
State passed a law requiring all ships arriving from foreign countries or from out of state have passenger ID
lists.
Holding:
Ct. upheld the law as a valid exercise of the state’s police power.
Rule:
2. The Dormant Commerce Clause before 1938

⋅ Cooley v. The Board of Wardens of the Port of
Philadelphia
112
Cooley v. Bd. of F: A PA law required that all The PA pilotage law is a In this Era: Whatever
Wardens of the Port ships entering or leaving the permissible exercise of Congress’s subjects of power
of Philadelphia, 53 port of Philadelphia hire a PA’s police power b/c the Commerce Power to regulate
U.S. 299 local pilot. Ships that fail to law applies equally to all is Selectively commerce are in
do so would be subject to a ships arriving from Exclusive. Areas their nature
[Natl. Power v. Area fine, which would go to a foreign ports. that demand natl. national or admit
of Local Concern fund for retired pilots and Though the subject to be uniformity do not only of one
Whatever subjects of their dependents. This fund regulated was commerce, permit state uniform system
power to regulate was administered by the the interesting twist here interference. In or plan of
commerce are in their Board of Wardens of the Port was whether the Commerce areas that need regulation require
nature national or of Philadelphia. Cooley was a Power was exclusive. local diversity exclusive
admit only of one ship owner who refused to Some subjects demand a concurrent state legislation by
uniform system or plan hire a local pilot and he also single uniform rule for the regulation is Congress.
of regulation require refused to pay the fine. whole nation, while kosher.
exclusive legislation others, like pilotage,
by Congress.] I: Does this PA pilotage law demand diverse local rules
unduly burden interstate to cope with varying local
Barnes: this is a commerce, or is it instead a conditions. The power of
police pwr reg valid exercise of PA’s police Congress was therefore
power? selectively exclusive.
Welton v. Mo., 91 U.S. 275 [National Power v. Area of Local Concern Where uniform national regulation of an area of
commerce is required no state interference is tolerated.]
Facts/Procedure:
State law required a tax for salesman who dealt primarily in out of state goods, but required no such tax for
salesman who dealt in in-state goods.
Holding [Sometimes Commerce Demands Exclusivity]:
State law unduly burdens interstate commerce b/c it discriminates against based on classification of whether a
salesman sells or does not sell out of state goods.
Rule:
Where the subject to which the congressional power to regulate commerce applies is national in its character,
or of such a nature as to admit of uniformity of regulation, the power is exclusive of all state authority.
Smith v. AL, 124 U.S. 465 [National Power v. Area of Local Concern Whatever subjects of power to regulate commerce are
in their nature national or admit only of one uniform system or plan of regulation require exclusive legislation by Congress.]
Facts/Procedure:
State passed a law that required that all train engineers who operated trains in the state, even if passing
through, had to be licensed by the state bd. of examiners.
Holding:
State law is constitutional b/c it is a valid exercise of the state’s police power.
Rule:
The Contemporary Test For The Dormant CC: The Shift To A Balancing Approach
• Gibbons stood for a Police Power v. Commerce Interference Distinction.

• Cooley stood for a National Power v. Local Concern Regulation distinction.
o None of these cases has been explicitly overruled so keep them in mind, but the modern ct. has
shifted its focus in determining Dormant CC Qs.
• Balancing Approach:
o Ct. now weighs the competing state and federal interests and the likely effects on interstate
commerce posed by the state or local regulation.
3. The Contemporary Test for the Dormant Commerce Clause

a. The Shift to a Balancing Approach
⋅ South Carolina State Highway Dept v. Barnwell Bros.
113
⋅ Southern Pacific v. Arizona Ex Rel. Sullivan, AG
SC State Highway Dept. v. F: Suit by Barnwell Bros., Inc., a Stone: No, this SC truck weight and In absence of
Barnwell Brothers, Inc., 303 trucking co., against SC Highway size requirements law does not impose congressional action,
U.S. 177 (1938) Dept. and others to enjoin the ∆s an unconstitutional burden on state regulation of
from enforcing a statute imposing interstate commerce b/c this case intrastate carriers, is
[Local Concern &Uniformity of restrictions on the use of highways involved requirements for trucks not invalid b/c of its
Application To In-Staters & by certain types of trucks, wherein traveling on state highways and it is effect upon interstate
Out-of-Staters: In absence of the ICC and others were allowed to inherently the province of a state to commerce, especially
congressional action, state intervene. A SC law banned from its regulate the permissible weight and where it effects in-
regulation of intrastate carriers, state highways trucks which were size limits for vehicles on its own staters and out-of-
is not invalid b/c of its effect more than 90 inches wide and state roads. staters in the same
upon interstate commerce, weighed over 20,000 pounds. manner. (looks like
especially where it effects in- The law effects in-staters and out-of- Ogden or a reverse
staters and out-of-staters in the I: Does this SC Truck Weight and staters in the same manner. notion of the rape cases
same manner.] Size Requirements law impose an w/in doc analogy)
unconstitutional burden on The SC legislature has acted here Barnes: Arg to this is
interstate commerce? w/out contradiction from Congress, it interstate hwys needs
is not for this ct. to intervene. uniformity and the
effect on interstate
commerce. Later
cases ct looks
externalization
calculation and this
case leads to balancing
what harm is an
benefit. Here the
benefit outweighs the
harm and state did a
decent job, state also
has to include fed int in
its calculus
Barnes Qs:
(1) What is the ct.’s opinion of the commerce clause?
Needed too prevent economic suppression and protectionism.
Comes from out history and our law.
Balancing Test:
National interest v. State interest
Discrimination between in-staters and out-of-staters v. Uniformity in application to in-staters and
out-of-staters.
(2) What does it mean for the ct?
A negative power to invalidate state laws that represent economic suppression and protectionism.
Not all areas of Commerce demand Congress’s Exclusive power.
Balancing Test:
out-of-staters.
(3) Should we require explicit Congressional override of state actions viewed as conflicting or with or burdening
No, where the state law represents economic suppression or protectionism congressional override does not
have to be explicit.
Balancing Test is key:
out-of-staters.
(4) What is the test the ct. is using to determine whether or not the state law unduly burdens interstate commerce?
Balancing Test:
out-of-staters.
114
S. Pacific R.R. F: AZ banned operation of Yes, the AZ Train Limit Law is an Distinctions from The Balancing
Co. v. AZ Ex. trains more than 14 unconstitutional burden on interstate Barnwell: Test [Rule is
Rel. Sullivan, passenger cars or 70 freight commerce b/c interstate rail transport for 1. State highways are Facially
AG, 325 U.S. 761 cars long on its rails. passengers and cargo is a national more local than R.R. Neutral]:
(1945) Statistics showed that a concern and allowing disparate train 2. Greater safety
large percentage of the length laws will allow whichever state concerns on highways (1) Locally
[Balancing of trains traveling in AZ were adopts the lowest number of permitted individuals cars have targeted
Interests Test: Ct. passing through to other cars to legislate for the entire nation. The to share the road with regulation or
balances AZ’s states. The AZ law would AZ law imposes a stiff burden on the rr’s. the semi-trucks not so National in
purported safety have a tremendous It had to operate 30% more trains in the on rails. effect? National
interest v. the economic impact on the state, and it had to break up and remake 3. Impact on interstate in effect.
national interest train co.’s running through trains passing through the state. The total commerce is greater in
of uniform rail their state b/c the trains cost was several million $s a year. S. Pacific. (2) The ct.
transport laws  must be loaded and hooked- Moreover, more trains would produce performs the
safety argument is up in stations and train more accidents and the state's safety Barnes: prob Thomas balancing.
weak b/c train yards in other states, which argument was empirically weak. The arg very compelling AZ’s safety
length limit allow longer trains. innovation in this decision was Stone's b/c this is judicial argument is
means more trains use of an "interest-balancing" standard legislating but prob is weak in
+ accidents, I: Is the AZ Train Limit of review, which proved more what do you do? comparison to
national desire for Law and unconstitutional demanding than the earlier "rational Someone has to the Natl.
uniform train laws burden on interstate basis" test. preserve the ability of Concerns with
is strong  AZ commerce? the state. uniformity in
law struck down!] train length
laws.
Rehnquist, Scalia, and Thomas object to the Balancing Test:

These three argue that state laws that are deemed non-discriminatory, regardless of any incidental effects on
interstate commerce, should be upheld.
Scalia advocates:
Eliminating the dormant CC review where the state is not discriminating against out-of-staters.
Under this view a state statute is only invalid under the CC if it accords discriminatory treatment to interstate
commerce in a respect not required to achieve a lawful state purpose.
Determining If The Law Is Discriminatory:

• The balancing test is not the same in all Dormant CC cases:
o It varies depending on whether the state or local law discriminates against out-of-staters or
treats in-staters and out-of-staters the same.
• Where the ct. determines that a state or local law discriminates against out-of-staters:
o There is a strong presumption against the law and it will be upheld only if it is necessary to
achieve an important purpose.
• If the ct. determines that the law is not discriminatory then:
o The presumption is in favor of upholding the law, and it will be invalidated only if it is shown
that the law’s burdens on interstate commerce outweigh its benefits.
• Facially Neutral v. Facially Discriminatory:
o Discriminatory:
 The law by its very terms draws a distinction between in-staters and out-of-staters.
 Facially discriminatory laws subject to strict scrutiny, meaning that the state must
demonstrate that no reasonable non-discriminatory alternatives are available to
advance the same legitimate state or local concerns.
o Neutral:
 Facially neutral but might be motivated by a desire to help in-staters at the expense
of out-of-staters [discriminatory in purpose or effect]  subject to strict scrutiny,
meaning that the state must demonstrate that no reasonable non-discriminatory
alternatives are available to advance the same legitimate state or local concerns.
 If the statute regulates evenhandedly to effectuate a legitimate local public interest,
and its effects on interstate commerce are only incidental, it will be upheld unless
115
the burden imposed on such commerce is clearly excessive in relation to the putative
local benefits.
b. Determining if a Law is Discriminatory

⋅ Facially Discriminatory Laws
⋅ City of Philadelphia v. New Jersey
⋅ C & A Carbone v. Town of Clarksown, New York
⋅ Hughes v. Oklahoma

City of F: NJ passed ch. 363 of 1973 Stevens: Yes, b/c this law is Rehnquist: There are “Where simple economic
Philadelphia NJ laws that prohibited the basically a protectionist difficult environmental protectionism is effected
v. NJ, 437 importation of most “solid or measure, which is Qs here and NJ, as a by state legislation, a
U.S. 617 liquid waste which originated discriminatory on its face and state, has police powers virtually per se rule of
(1978) or was collected outside the in its plain effect. to protect its citizens. invalidity has been
territorial limits of [NJ].” There are serious health erected.”
[“Where Statute was worded as a The NJ law falls squarely w/in risks associated with
simple police power regulation. the area that the commerce landfills and NJ should Economic burden of
economic Many waste disposers have clause puts off limits to state be able to determine externalization [similar to
protectionism Ks with NJ landfills to regulation. what is and what is not NY v. U.S.]
is effected by dispose of their waste, allowed in.
state including a number in “Where simple economic The majority presents Facially discriminatory
legislation, a Philadelphia. They brought protectionism is effected by the dissent with a  heavy burden of
virtually per se suit against NJ in state ct. state legislation, a virtually per Hobson’s Choice: NJ proving the validity of the
rule of State ct. held that the banning se rule of invalidity has been has a duty to protect its law and its just purposes.
invalidity has of “valueless” out-of-state erected.” own citizens, through its
been erected.”] waste did not violated the police powers, not the (1) Ct. does not like
constitution. S Ct. reversed The NJ law blocks the citizens of other states. Economic protectionism
for Philadelphia and the waste importation of waste in an NJ either has to abolish (2) State has a heavy
disposers. obvious effort to saddle out-of- in-state landfills burden of proving that the
staters with the entire burden of completely or it must same goal could not have
I: Whether ch. 363 of 1973 slowing the flow of refuse into continue to accept solid been accomplished
NJ laws violates the NJ’s remaining landfill sites. waste from all over the through non-
commerce clause. nation. discriminatory means.
Could N.J. have done

something else to avoid this
unconstitutional attempt to
achieve this.
116
C & A Carbone, Inc. F: A waste sorting/waste removal co. is Kennedy: (1) Yes, the flow Souter: There is no State and local govts
v. Town of seeking injunctive relief against control ordinance discriminates benefit to local waste may not use their
Clakstown, NY, 511 Clarkstown, stemming from against interstate commerce b/c disposers here. The regulatory power to
U.S. 383 Clarkstown’s Flow Control Ordinance, the ordinance hoards a local town has merely come favor local enterprise
which requires all locally produced resource for the benefit of the up with a novel by prohibiting
[State and local govts solid waste to be processed and sorted local businesses that treat it. financing scheme for patronage of out-of-
may not use their at a designated transfer station before The flow control ordinance a traditional state competitors or
regulatory power to leaving the town. squelches competition in the governmental their facilities.
favor local enterprise Clarkstown passed its Flow Control waste-processing service responsibility, waste
by prohibiting Ordinance for purpose of retaining the altogether leaving no room for disposal and sorting. States and localities
patronage of out-of- processing fees charged at the transfer investment from outside. There is no indication may not attach
state competitors or station to amortize the cost of the “Discrimination against interstate that any out of state restrictions to exports
their facilities; States facility. The cost of the station was commerce in favor of local trash processor was or imports in order to
and localities may not estimated to be $1.4 million. A private business or investment is invalid harmed here. control commerce in
attach restrictions to contractor agreed to build and run 5 per se, save in a narrow class of The costs here are other states.
exports or imports in years, after which time the town could cases in which the municipality spread solely amongst
order to control buy it for $1. The town promised a can demonstrate, under rigorous local trash processors. States and localities
commerce in other minimum flow of 120,000 tons per scrutiny, that it has no other may not pass laws
states.] year. If the tonnage was not met the means to advance a legitimate Barnes says: that unduly restrict
town would make up the difference. In local interest.” Maine v. Taylor This case presents access to competing
order to raise the revenue necessary to Clarkstown had a number of intrastate regulation markets.
make it worth the contractor’s while the non-discriminatory means to that effects interstate
town imposed a “tipping fee.” The affect the same result: Adopt commerce.
town required an $81 per ton tipping uniform safety regulations Like Reno v. Condon
fee, which exceeded the private market enacted w/out the object to in that the ct. is
price. π, Carbone runs a recycling discriminate. regulating Clarkstown
center and waste removal business in as a private entity not
Clarkstown. The town was requiring (2) Ct. says it does not need to as a locality. Clarkston
Carbone to pay a “tipping fee” on waste reach the Q of whether the flow is trying to make $
it had already sorted and packed. ordinance imposes an excessive here.
Clarkston seized Carbone trucks burden on interstate commerce
leaving the town. b/c the ordinance clearly
discriminates against interstate
I: (1) Does Clarkstown’s flow control commerce and there is no
ordinance discriminate against interstate legitimate local goal here.
commerce? [from Philadelphia v. NJ]
(2) Does the flow control ordinance
impose an excessive burden on
interstate commerce that is “clearly
excessive in relation to the putative
local benefits?” [from Pike v. Bruce
Church, Inc.]
117
Hughes v. OK, 441 U.S. 322 F: OK passed a law that stated “no person may transport Brennan: The OK “When discrimination
(1979) or ship minnows for sale outside the state which were minnow transport statute against commerce is
seined or procured within the waters if this state.” OK violates the commerce demonstrated, the burden
[“When discrimination against justified the law as a legitimate “conservation effort.” clause b/c it is facially falls on the state to justify
commerce is demonstrated, the discriminatory and OK it both in terms of the local
burden falls on the state to The law places no limits on the # of minnows an in-state has not chosen the least benefits flowing from the
justify it both in terms of the minnow dealer may remove from the waters, but forbids discriminatory means. statute and the
local benefits flowing from the the transport on any commercially significant # of unavailability of
statute and the unavailability natural minnows out of the state for sale. The statute imposes no nondiscriminatory
of nondiscriminatory adequate limits on the use or adequate alternatives to
alternatives to preserve the I: (1) Does OK’s minnow transport statute discriminate disposal of the minnows in preserve the local interests
local interests at stake.”] against interstate commerce? state, but it forbids at stake.”
transport of any
(2) If not, does the statute impose an excessive burden commercially significant # Barnes: no restrictions
on interstate commerce that is “clearly excessive in of natural minnows out of on instate citizen or
relation to the putative local benefits?” the state for sale. resident it is only. Looks
like a discriminatory
§burden is borne by
interstate commerce.
Reciprocity Requirements
A state allows out-of-staters access to markets or resources only when the out-of-staters are from states that grant
similar benefits in return.
Ct. has held that such agreements are facially discriminatory.
Great A. & P. Co. v. Cottrell, 424 U.S. 366 (1976)

Holding:
Ct. unanimously invalidated a MS law that provided that milk could be shipped into MS from
another state only if the other state would accept milk from MS on a reciprocal basis.
Rule:
Reciprocal agreements between states are facially discriminatory.
Sporhase v. Nebraska, 458 U.S. 941 (1982)

Holding:
Ct. found a state law discriminatory when it denied a permit to draw and use water for use in
another state unless that state granted reciprocal rights to draw water for use in Nebraska.
Rule:
Reciprocal agreements between states are facially discriminatory.
⋅ Facially Neutral Laws

Facially Neutral Laws
Facially neutral laws may be found discriminatory if they have either the purpose or effect of discriminating against
out-of-staters.
Differs from the 14th amendment EP discrimination standard, which requires a discriminatory purpose and a
discriminatory effect.
Facially neutral but might be motivated by a desire to help in-staters at the expense of out-of-staters [discriminatory in
purpose or effect] 
subject to strict scrutiny, meaning that the state must demonstrate that no reasonable non-discriminatory
alternatives are available to advance the same legitimate state or local concerns.
If the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental 
it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative
local benefits.
The difficulty for courts is in determining whether a particular law has a discriminatory purpose or a legit non-
discriminatory objective and whether a law should be deemed to have a discriminatory impact.
Hunt v. WA Apple Advertising Commission:
The NC law was impermissibly discriminatory in its effects.
Exxon v. MD:
118
MD had a legit purpose, preventing unfair gas pricing practices and the laws effects on interstate commerce
were merely incidental, the ct. upheld the MD law.
⋅ Hunt v. Washington State Apple Advertising
Commission
⋅ Exxon Corp v. Governor of MD
⋅ West Lynn Creamery Inc v. Healy, Commissioner of
Mass Dept of Food and Agriculture
⋅ State of Minnesota v. Clover Leaf Creamer
Case Name Facts & Issue Holding Add’l Points Rule

Hunt v. WA, F: WA has a superior apple Burger: The NC apple labeling statute is If a state/local When a state law
432 U.S. 333 grading and labeling discriminatory in its purpose and its effect b/c law is is
(1977) system. Its apples are the the act allows apples to be shipped to and sold in discriminatory in discriminatory
best and it has invested NC with no labels, but it outlaws the sale of its purpose or in its purpose or
[NC law was significant amounts of $ in apples bearing and labeling system other than the effect: effect the burden
discriminatory this system. NC passed a USDA’s, even though states like WA have A heavy burden falls on the state
in effect and law that stated apple crates superior and more stringent labeling systems. falls on the to justify it both
NC could not were to either bear only the state/local govt. to in terms of the
justify it by FDA labels or no labels at Discriminates in 3 ways: justify the law in local benefits
showing a all. This law would either (1) Raises the cost of doing business in NC for terms of a legit flowing from the
strong local require WA to leave the NC WA growers and dealers, but does not affect NC state/local interest statute and the
interest and by market or expensively alter growers or dealers. and by showing unavailability of
showing that it its packaging to conform to (2) Kills WA’s competitive advantage and that the state used non-
used the least the NC law. investment in a superior labeling system. the least discriminatory
discriminatory (3) The statute levels the field even though WA discriminatory alternatives
means I: (1) Does NC’s apple has gone to extra efforts. means to support adequate to
available.] labeling statute facially the legit preserve the
discriminate against NC did not use the least discriminatory manner state/local local interests at
interstate commerce? to accomplish its purported goal of making the concern. stake.
apple retail market less confusing: simply allow Barnes: ct Barnes:
(2) If not, does the statute the boxes to carry the USDA and WA labels! talking about California
impose an excessive effect but the created a
burden on interstate Allowing apple crates with no labels and purpose is standard
commerce in that it refusing crates with WA labels does not serve market (Avocado case)
discriminates in purpose or to eliminate the problems of fraud and protection but here NC rule
effect? deception in the apple trade. (mentioned in record does not not pre-emptive
class to indicate ct did not buy this arg) give us enough to perhaps Calif
make this system created
determination so a dormant CC
we look at effect issue.
Raised Dormant
Ct not willing to CC in dist ct and
substitute said non-
opinion in cases discriminatory
such as this but unable to
where the lower review b/c not
ct has able to ascertain
determined the in record what
facts. factors the Dist
ct used. Court
stuck w/dist ct
finding.
119
Exxon v. MD, F: In response to the Stevens: No, the MD Blackmun: If a state or local
437 U.S. 117 behavior of oil co. owned statute does not violate the 99% of the insulated firms here were statute regulates
(1978) service stations during the CC b/c the statute does not locally owned and operated. evenhandedly to
1973 OPEC Oil Embargo discriminate against effectuate a
[MD had a legit MD passed a law, which interstate goods, nor does There is impermissible discrimination legitimate local
purpose, provided that a producer or it favor local producers or against interstate commerce here. public interest,
preventing unfair refiner of petrol products: refiners. and its effects on
gas pricing (1) may not operate any There is a discriminatory effect: the interstate
practices and the service station w/in MD The act merely restricts effect is to protect in-state retail commerce are only
law’s effects on and; (2) must extend all refiners from operating service stations from the competition incidental it will
interstate “voluntary allowances” stations in MD. Out-of- of out-of-state businesses. be upheld unless
commerce were uniformly to all service state independent dealers the burden
merely incidental stations it supplies. At the and in-state independent “If discrimination results from a imposed on such
& burden was time there were 3,780 total dealers are free to run statute, the burden falls on the state or commerce is
not excessive gas stations in MD, of this # stations in MD. local govt. to demonstrate legit local clearly excessive
the ct. upheld the 3,547 were locally owned benefits justifying the inequality and in relation to the
MD law.] and operated by non- “While the refiners will no to show that less discriminatory putative local
integrated dealers. Of the longer enjoy their same alternatives cannot protect the local benefits.
Facially neutral 233 company owned status in the MD market, interests.”
stations, 197 belonged to in –state independent
[opposite of out-of-state refiners. 99% of dealers will have no There was no evidence here that any
Carbone] the insulated firms here competitive advantage of the effected refiners have or would
were locally owned and over out-of-state engage in unfair pricing and
MOST OF operated. independent dealers.” distribution practices, moreover there
ANLYSIS IS П are already federal and state laws to
cliam and more I: Does the MD statute This is not about market punish this.
likely either violated the CC? structure says the ct.!
discrim in effect Jackson’s Hood quote: "every farmer
or more on the and every craftsman shall be
heavy encouraged to produce by the
presumption of certainty he will have free access to
invalidity every market in the Nation."
Class:
Test:
Regulates evenhandedly?: Yes, continue, if not discriminatory [in purpose or effect] and there is a
strong presumption of impermissibility  Legitimate State/local interest: If yes, continue 
merely incidental effects on interstate commerce/balancing test?: are the burdens imposed
clearly excessive in relation to the state interest?
Barnes says:
The ct. is shifting the doctrine here, the effects prong was not intended to focus on the state’s
motive or intent, rather this should be a numbers game  are the effects on interstate
commerce burdensome  yes.
Ct. situates its analysis in effects, but it says the effects are incidental.
There is an underlying purpose argument.
The Q is if there is a legit purpose that does not look pretextual is it okay that the burden is borne
by out-of-state interests.
Ct. should have used the discriminatory in effect test!
MD would have to have shown a legit state interest, and;
that MD used the least discriminatory means to support and further this interest.
What happened to Jackson’s quote from Hood?!:
"every farmer and every craftsman shall be encouraged to produce by the certainty he will have free
access to every market in the Nation."
120
Case Name Facts & Issue Holding Additional Rule
West Lynn F: In response to a Stevens: Yes, the Mass Dairy Order violates Discriminatory A state may not
Creamery, Inc. declared state of the CC b/c, even granting ∆’s argument that Purpose: The “benefit in-state
v. Healy, emergency, i.e. Mass the tax and subsidy are constitutional on their Mass dairy economic interests
Commissioner of dairy farmers were going own, in combination they are an farmers are by burdening out-
Mass Dept. of out of business, the unconstitutional burden on interstate going out of of-state
Food & Commissioner of Mass commerce. business. The competitors.”
Agriculture, 512 Dept. of Food & entire purpose of
U.S. 186 (1994) Agriculture created an The pricing order is funded principally from the statute was Where a
Order requiring milk taxes on the sale of milk produced out of state to benefit in- state/local law is
[Mass dairy dealers to make  the pricing order violates the cardinal state economic discriminatory in
pricing order payments into a fund principle that a state may not “benefit in-state interests! its effects the
impermissibly that is distributed on a economic interests by burdening out-of-state burden is on the
“benefits in-state monthly basis to Mass competitors.” state to show:
economic dairy farmers.
interests by Its true that Mass dairy farmers are subject to (1) a legit local
burdening out-of- I: Does the Mass Dairy the tax, but they are also the group that interest and;
state Order violated the CC? receives the subsidy, while the out-of-staters
competitors.”] do not. Taxation w/out representation!!!! (2) that there are
no less-
The purpose & effect of the Mass dairy discriminatory
pricing order is to divert market share to means to promote
Mass dairy farmers. the same legit
interest.

MN v. Clover F: 1977 MN passed a statute that Brennan: No, the MN anti- Ct.s 2 reasons the Exxon Rule: If a
Leaf banned the retail sale of milk in plastic milk container law does burden is low: state or local statute
Creamery, 449 plastic containers but permitted the not violate the CC b/c MN has (1) There is no regulates
U.S. 456 (1981) sale of other non-returnable, non- a legit purpose here, this is not reason to suspect evenhandedly to
refillable containers, like paperboard “simple economic that the gainers effectuate a
Take away: milk cartons. protectionism,” the effects will be MN firms legitimate local
[MN statute imposed are merely incidental, and the losers out- public interest, and
regulates MN claimed, in §1, that the purpose and the burden is not excessive of-state firms. its effects on
evenhandedly of the act was to prevent a solid waste in relation to the local interest (2) Plastic resin interstate commerce
and the problem posed by plastic milk protected. will be used in are only incidental
incidental containers and that the use of other applications it will be upheld
burdens refillable and returnable bottles should The MN law regulates all milk and some of the unless the burden
imposed on be encouraged. MN has a large pulp- producers “evenhandedly” business imposed on such
interstate wood industry  pulpwood is used to regardless of whether they are generated by this commerce is clearly
commerce are make milk cartons. MN does not in-state or out-of-state. act will go to out- excessive in relation
not excessive make plastic resin. of-state pulpwood to the putative local
given the Even though out of state plastic manufacturers. benefits.
local benefit it is Lower ct. held the law was resin manufacturers are
constitutional.] unconstitutional. burdened that burden is not
excessive in relation to MN’s
I: Does the MN anti-plastic milk conservation goal.
container law violates the CC?
Class:
MN could claim that paper is bio-degradable, but plastic is not  legit interest protect landfills from non-
degradable wastes.
Balancing test:
Burden of incidental effects on interstate commerce v. Legit State Interest
The state interest here wins even though there are no MN plastic manufacturers, but the
pulpwood manufacturers are in state.
Ct.’s response to discriminatory in effect:
The law applies to all milk producers whether in state or out of state.
The law regulates evenhandedly.
Landfill protection is a legit interest, not economic protectionism.
The burden on interstate commerce cannot be excessive in relation to the local interest/benefit.
The excessiveness is not an objective measure, rather it is a relative measure in relation to the local
benefit.
121
Barnes says “Where are the numbers!!!!”:
The ct. is shifting the doctrine here, the effects prong was not intended to focus on the state’s
motive or intent, rather this should be a numbers game  are the effects on interstate
commerce burdensome  yes.
Ct. situates its analysis in effects, but it says the effects are incidental.
There is an underlying purpose argument.
The Q is if there is a legit purpose that does not look pretextual is it okay that the burden is borne
by out-of-state interests.
Ct. should have used the discriminatory in effect test!
MN would have to have shown a legit state interest, and;
that MN used the least discriminatory means to support and further this interest.
Out of whack effects speak to purpose!!!!
Barnes says Hood still does not allow open market access in all situations.
But, hood said that states could not use police power regulations to suppress competition.
Exxon still seems to be suppressing competition give the statistics.
Rule from Hood:
“A state may not use its admitted powers to protect health and safety of its people as a
basis for suppressing competition.”
c. Analysis If a Law is Deemed Discriminatory

The crucial initial inquiry in Dormant CC cases is whether the law is discriminatory against out of staters in purpose or
effect.
Simple Economic Protectionism  Virtual per se rule of invalidity [Philadelphia v. NJ/Carbone v.
Clarkstown]
The burden is on the state to show [Hunt v. WA]:
(1) a legit local interest and;
(2) that there are no less discriminatory means to promote the same legit interest.
WHAT IS THE RULE USE THESE TO REFINE THE CURRENT STATEMENT OF
THE RULE:
⋅ Dean Milk Co. v. City of Madison, Wisc
⋅ Maine v. Taylor and U.S.

Dean Milk Co. v. F: Madison, WI passed a Milk Yes, the Madison Milk Ordinance Where a state/local law is
Madison, WI, 340 Ordinance that made it illegal to violates the CC b/c it is facially discriminatory in its effects the
U.S. 349 (1951) sell any milk that has been discriminatory in effect by erecting burden is on the state to show:
pasteurized anywhere other than at an economic barrier protecting local
[Madison Ordinance an approved plant w/in a 5 mile business and Madison did not use the (1) a legit local interest and;
= discriminatory in radius from the central square of least discriminatory means to effect
effect  burden was Madison. π is an Ill. milk its legitimate public interest of (2) that there are no less-
on Madison to show distributor that purchases milk ensuring safe milk for its citizens. discriminatory means to promote
(1) a legit local from WI and Ill. farmers and the same legit interest.
interest and; (2) that pasteurizes the milk 85 miles from Madison could have adopted the U.S.
there were no less- Madison. Its milk is licensed as Model Milk Ordinance which does [could still make Carbone Point]
discriminatory means “Grade A” under the US Public not impose a geographic restriction,
to promote the same Health standards. but rather excludes milk not processed
legit interest  per the city’s standards. Madison
unconstitutional.] I: Does the Madison Milk could have requested the USDA to
RULE (and going to Ordinance violate the CC? inspect the π’s facilities to ensure
per se there is a prob) compliance.
122
ME v. Taylor F: ME statute prohibited the Blackmun: No, the ME Stevens: ME is not the Where a state/local
& U.S., 477 importation of live bait fish. ∆ statute is not an only state concerned about law is discriminatory
U.S. 131 (1986) K’ed to import 158,000 live impermissible burden on the effects of imported in its effects the
Golden Shiners. ME interstate commerce b/c ME fish, but it is the only state burden is on the state
[ME had a legit intercepted the shipment. has a legit interest here, that has been allowed to to show:
interest, Federal grand jury indicted ∆ environmental protection, the blatantly discriminate
ecological for violating the Lacey Act, effect on interstate commerce against out of state bait (1) a legit local
preservation & which makes it a crime to is incidental, and the burden fish by flatly prohibiting interest and;
other methods import/acquire fish, via is not excessive in relation to them.
short of its ban interstate commerce, in the local interest protected. (2) that there are no
on out-of-state violation of state law. ∆ ME has a burden to less-discriminatory
bait fish were moved to dismiss on the Case differs from Hughes v. develop feasible means to promote the
impractical in ground that the ME statute OK b/c OK’s state interest inspection procedures. same legit interest.
ensuring that was an impermissible burden was illusory, however ME’s
diseased and on interstate commerce. interest here is valid & “If ME wishes to rely on There is an important
parasite infested substantial. ME’s means of its interest in ecological distinction between
bait fish did not I: Is the ME statute an supporting the statute are also preservation, it must show incidental &
destroy its impermissible burden on appropriate as the other that interest, and the affirmative
aquatic interstate commerce? options are impractical. infeasibility of other discrimination.
ecology.] alternatives, with far
greater specificity.”
p. 348
Class:
Barnes Sayz!:
Starting point should always be whether the ct. believes or buys the state’s purported interests.
Hughes didn’t stand for the proposition that a state could never externalize the burdens of state
legislation;
However, the level of scrutiny is higher.
Ct. says its stuck with the facts of the Dist. Ct., however:
The ct. says that the Dist. Ct. erred in its interpretation of the facts.
Bad facts in the lower ct. record hurt . . . sometimes.
d. Analysis If a Law is Deemed Non-Discriminatory

- If the ct. concludes that a state’s law is non-discriminatory – that is, it treats in staters and out of staters alike –
then it is subject to lower scrutiny:
 Non-discriminatory laws are upheld so long as the benefits to the govt. outweigh the burdens on
interstate commerce.
⋅ Pike v. Bruce Church, Inc.

⋅ Bibb, Director, Dept of Public Safety of Illinois v. Navajo
Freight Lines, Inc.
⋅ Raymond Kassel v. Consolidated Freightways
Corporation of Delaware
⋅ CTS Corp v. Dynamics Corp of America
123
Pike v. Bruce F: Commercial farming co. in AZ Stewart: Yes, the burdens DP: This is the same test If a state or local
Church, Inc., has a packing facility for its imposed on interstate commerce that allowed state statute regulates
397 U.S. 137 cantaloupe crop 31 miles away in are excessive. regulations to be upheld evenhandedly to
(1970) CA. AZ passes a Cantaloupe in Exxon & Clover Leaf, effectuate a
Packing Statute requiring that all AZ has a legit interest here, however, here the legitimate local
[AZ law AZ cantaloupes and offered for protecting and enhancing the incidental effects on public interest,
regulated sale must “be packed in a regular reputation of AZ growers, interstate commerce and its effects on
evenhandedly, compact arrangement in closed however, this interest compared were “clearly excessive” interstate
however, the ct. standard containers approved by to Bruce having to build a in relation to the state commerce are
found that the the supervisor.” AZ co. spent $200,000 packing facility when interest. only incidental it
incidental $3,000,000 constructing its farm in it already has one 31 miles away will be upheld
burdens AZ and valued its 1968 crop at in CA is “clearly excessive.” unless the burden
imposed on $700,000. The packing facility imposed on such
interstate required would be very expensive, “ct. has view with particular commerce is
commerce and it already had one only 31 suspicion state statutes requiring clearly excessive
exceeded the miles away in CA. AZ attempted business operations to be in relation to the
state interest  to enforce the statute against Bruce performed in the home State putative local
unconstitutional Church, Inc. that could be more efficiently benefits.
under the performed out of state.” Ex.
Dormant CC!] I: Are the burdens the AZ Carbone v. Clarkstown
Cantaloupe Packing Statute
p. 350 imposes on interstate commerce This incidental effect on
excessive in comparison to the interstate commerce could
local interest purportedly perhaps have been tolerated if the
protected? state interest protected was
greater.
Class:
Outcome of the Balancing Test:
The burden here on interstate commerce > than the state interest.
Economic cost to Bruce > Image and Reputation of AZ farmers
If the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on
interstate commerce are only incidental [Balancing Test]
it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the
putative local benefits.
The presumption is towards validity.
124
Bib, Ill. Director F: Ill. passed a Mud-Flap Douglas: Yes, the burdens imposed DP: This is the same Exxon Rule: If a
Public Safety v. Statute, which required all by Ill. Mud-Flap Statute on test that allowed state state or local
Navajo Freight semis traveling through Ill. to interstate commerce are excessive regulations to be statute regulates
Lines, Inc., 359 be equipped with countered b/c the statute seriously interferes upheld in Exxon & evenhandedly to
U.S. 520 (1959) mud-flaps. But, many other with the “interline” operations Clover Leaf, effectuate a
states required different mud- common in the trucking industry, however, here the legitimate local
[Ill. law regulated flaps and the swapping and it has not been conclusively incidental effects on public interest,
evenhandedly, procedure between the shown that these “contoured” interstate commerce and its effects on
however, the ct. different flaps, from state to mud-flaps are any safer than those were “clearly interstate
found that the state, would be excessively required by the other states. excessive” in relation commerce are
incidental costly and time consuming. to the state interest. only incidental it
burdens imposed Most semi-truck companies 48 other states were not in step will be upheld
on interstate operate in interstate with this analysis unless the burden
commerce commerce. imposed on such
exceeded the commerce is
state interest  I: Are the burdens imposed clearly excessive
unconstitutional by Ill. Mud-Flap Statute on in relation to the
under the interstate commerce putative local
Dormant CC!] excessive? benefits.
p. 352
Class:
Economic cost to Trucking co.’s > Ill. interest in a proprietary mud-flap requirement [not proven
safer than the alternative].
125
Case Name Facts & Issue Plurality Dissent Rule
Kassel v. F: Consolidated is one of the largest Powell: Yes, the Iowa Rehnquist: Majority Exxon Rule: If a state
Consolidated trucking co.’s in the country and it Semi-Truck Length attempts to make Iowa or local statute
Freightways operates 55 ft. singles, 60 ft. doubles, Statute imposes seem like a renegade regulates
Corp. of and 65ft. doubles. Consolidated excessive burdens on standing alone to block evenhandedly to
Delware, 455 travels through Iowa. Iowa passed a interstate commerce b/c interstate commerce, but effectuate a
U.S. 329 (1981) Semi-Truck Length Statute that this case is controlled in reality other states legitimate local
outlawed the 65 ft. doubles. by Raymond Motor v. have similar laws. States public interest, and
[Iowa law Rice which held that sovereign- entitled to its effects on
regulated Consolidated is faced with 4 options: WI’s ban on 65 ft. make own policy interstate commerce
evenhandedly, (1) use 55ft. singles; doubles imposed an choices are only incidental it
however, the ct. (2) use 60ft. doubles; excessive burden on (STRUCTURAL will be upheld unless
found that the (3) detach the trailers of the 65 footers interstate commerce. MOVE) the burden imposed
incidental and transport them through Iowa The doubles are as safe (BARNES) thinks this on such commerce is
burdens separately; as the singles. is still being done clearly excessive in
imposed on (4) go around Iowa. A special relation to the
interstate The Iowa law actually consideration: The putative local
commerce The Iowa law actually requires a requires more highway safety inquiry shouldn’t benefits.
exceeded the greater number of trucks on the road miles be driven by a focus on balancing;
state interest  [similar argument in S. Pacific v. AZ] greater # of trucks  rather there should be a Barnes: if in the
unconstitutional state interest is presumption that the aggregate it will cost
under the I: Does the Iowa Semi-Truck illusory. [similar state law is valid, not more money a lot of
Dormant CC!] Length Statute impose excessive argument in S. Pacific pretextual. times it will be
burdens on interstate commerce? v. AZ] deemed excessive the
balancing here is
DP: This is the same clearly excessive in
Marshall/Brennan say
test used to uphold state
pretextual similar to the aggregate.
regulations in Exxon &
portion of Rehnquist
Clover Leaf, however,
BUT
here the incidental
PROTECTIONIST/
effects on interstate
EXTERNILIZATION
commerce were “clearly
Sugg any evenhanded
excessive” in relation to
claim is underminded
the state interest.
Class:
Economic cost to Trucking co.’s > Iowa’s interest in prohibiting twins [doubles might actually be
safer than singles]
126
Case Name Facts & Issue Plurality Additional Rule
CTS Corp. v. F: Indiana passed a Powell: No, the IN Act is not such a Very similar to Exxon v. Exxon Rule: If a
Dynamics Corporate Takeover Act, discriminatory act, nor does it MD. state or local
Corp. of which provided that a excessively burden interstate statute regulates
America, 481 purchaser who acquired a commerce b/c nothing in the act “We have rejected the evenhandedly to
U.S. 69 (1981) “control of shares” in an IN imposes a greater burden on out of notion that the CC effectuate a
corp. would acquire voting state offerors that it does on IN protects the particular legitimate local
[IN statute rights only if the transaction offerors. structure or methods of public interest,
regulated even was approved by a majority operation in a market.” and its effects on
handedly, IN of the preexisting The act only regulates IN corp.’s interstate
had a legit disinterested shareholders. which are corp.’s created by and “The fact that the burden commerce are
interest, and A takeover corp. sued regulated by IN law. The act has no of state regulation falls only incidental it
under Exxon challenging the effect on out of state corp.’s on some interstate will be upheld
v. MD the constitutionality of the act. takeover’s or mergers with other our companies does not, by unless the burden
burden of state corp.’s. itself, establish a claim imposed on such
imposed on I: Does the IN Corporate of discrimination against commerce is
interstate Takeover Act discriminate IN has a legit interest: “A state has interstate commerce.” clearly excessive
commerce against out of staters or an interest in promoting stable Barnes: look at facts in relation to the
was not excessively burden relationships among parties involved inside/outside dist (says putative local
excessive.] interstate commerce to the in the corporations it charters, as well ok non-discrim) but no if benefits.
extent that it violates the as in ensuring that investors in such you walk through this
[opposite of Dormant CC? corp.’s have an effective voice in case not facially
Carbone] said corp. affairs.” discrim- discrim in eff
that is not end HERE not sure pref mkt in that sort of looks like
of anayslis b/c struct to ext rule all instate carbone or bait fish
just b/c equal corps ct sugg based on case shows how DCC
does not mean reasonas not will to enf a can be tricky
that the law is rule structure which results
fine. in this market.
Barnes Says: Purpose or eff analysis come up w/determination if purpose

or effect dis or ANSWER Q: based on these facts and the way we
discussed this choice(EXAM) CHOOSE COMMIT TO AND SHOW
ME that the analsis you have chosen is discim or non discriminatory
b/c the first way you tell this is b/c you treat them diff when the same
can be both so have to say on these facts
Hypo b/c our roads are worn and want to be safe doing this § intra safety any state using this must pay 100
yr heavy trucks that travel on this sate: ask 1st if is discrim→ state claims safety heavy trucks take a
larger toll (not facially discrim) П business in state and out of state (chagrining AM
TRUCKING CO) thinks these deciosns are tough b/c facts not clean SEE cases I sent west
law.
127
Ct. seems to find a pretext when there is economic protectionism for the local market.
Although the ct. may still find the interest legitimate even if there is some evidence of
protectionism if its incidental.
Local Interest Query [areas where the state interest has been deemed legit]:
Health & Safety
Environmental Conservation
Consumer Protection
Family Law
Education
Criminal
Business & Professional Relations
Discriminatory laws will only be upheld if it is shown that they are the least discriminatory means to uphold a
non-protectionist interest.
The Liquor Cases: Conflict Between The Dormant CC & §2 of The 21st “The Modern Accommodation
Standard”:
• Art. I, §8:
o Grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes....”
• §2, 21st Amendment:
o Prohibits “[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....”
• The issue of whether a state or local law that regulates intoxicating liquors, per the 21st Amendment impedes
interstate commerce in violation of the CC is been an evolving area of law.
o Immediately after the passage of the 21st the ct.s used the broad standard and interpreted the 21st as
providing unconfined powers to the states to regulate intoxicating liquors within their borders.
o Since the early 1960s the cts have narrowed the broad standard, & have applied the modern
accommodation standard:
 Where the federal interest in free trade and the states' interests in regulating intoxicating liquors are
balanced in light of each other.
 Ex., in Beskind v. Easley [NC], 325 F.3d 506, (4th Cir. 2003) & Heald v. Engler [MI], 342 F.3d
517 (6th Cir. 2003), the ct.s considered the modern accommodation standard, and held that state
alcoholic beverage control (ABC) laws, which prohibited the direct shipment of intoxicating
liquors to state residents from out-of-state liquor dealers, violated the CC, and the laws were not
saved by the 21st, b/c the core concerns of the ABC laws did not fall within the core concerns of
the 21st.
• Core Concerns of the 21st Amendment:
o Furtherance of :
 (1) temperance;
 (2) ensuring an orderly market, or;
 (3) raising revenue.
o Cannot be “mere economic protectionism.”
o Dormant CC & 21st Amendment
o Heald v. Engler
o Bainbridge v. Turner
128
Heald v. F: Out-of-state winery, wine connoisseurs, Daugherty: Yes, MCL 436.1113(9) violates the If a state's laws
Engler, and wine journalists brought § 1983 action, CC by affording MI wineries the ability to sell & regulating
342 F.3d 517 challenging Michigan's regulations ship directly to consumers, while not permitting distribution of
(6th Cir. governing distribution of alcohol as out-of-state wineries to do the same b/c the MI law alcohol violate the
2003) violative of the CC, b/c it discriminated is facially discriminatory and MI has not (1) shown dormant CC by
against out-of-state wineries by preventing a legit state interest, and has not; (2) shown that it discriminating
[MI’s law out-of-state wineries from shipping wine used the least discriminatory means to further its against out-of-state
violates the directly to MI consumers, while allowing purported legit interest [the discriminatory state commerce, then the
CC b/c it MI wineries to do so. MI, like most states, law “heightened scrutiny test”]. ct. determines
discriminate uses a “3 tier” alcohol regulation system: whether the state has
s and MI (i)consumers must purchase from licensed one thing is certain: “The central purpose of the shown that it has no
has not retailers; (ii)retailers must purchase from 21st was not to empower States to favor local reasonable
shown that licensed distributors; (iii) and distributors liquor industries by erecting barriers to nondiscriminatory
it is: (1) in must purchase from licensed manufacturers. competition.” means of advancing
furtherance Under MI law out-of-state wineries are the core concerns of
of a “core subject to the 3 tier system, but in-state- State alcohol regulations that facially, in their the 21st.
concern” of wineries, per MCL 436.1113(9) “may sell purpose, or in their effects discriminate against out
the 21st, or; and deliver their wine directly to MI of staters are subject to the same test as are other Two Step Inquiry:
(2) uses the consumers.” πs contend that “that this discriminatory state laws: If a state of local law is (1) Does the state
least differential treatment of in-state and out-of- discriminatory in purpose or effect it is subject to alcohol regulation
discriminato state wineries violates the dormant heightened scrutiny, meaning that the state must discriminate against
ry means.] Commerce Clause b/c it gives in-state demonstrate: out-of-staters  yes,
wineries a competitive advantage over out- (1) a legit state interest and that then proceed to (2).
Daugherty of-state wineries.” (2) no reasonable non-discriminatory alternatives
MI Contends: this is valid state regulation are available to advance the same legitimate state (2) Is the state law in
under §2 of the 21st Amendment b/c it is or local concerns. furtherance of a
not “mere economic protectionism.” “core concern” of
District Ct. found: the MI law was designed The difference in the alcohol context is: the state’s the 21st and does the
to “ensure the collection of taxes from out- legit interest must be a “core concern” of the 21st. law use the least
of-state wine manufacturers and to reduce discriminatory
the risk of alcohol falling into the hands of MI’s discriminatory treatment of wineries based means?
minors.” on state of origin does not support a legitimate
core concern of the 21st. The law is not in If the law fails (2) its
I: Does MCL 436.1113(9) violate the CC furtherance of “temperance, ensuring an orderly an unconstitutional
by affording MI wineries the ability to sell market, or raising revenue.” state alcohol
& ship directly to consumers, while not regulation in
permitting out-of-state wineries to do the “πs in this case are willing to acquire MI permits violation of the CC.
same? [how do the Dormant CC & §2 of and pay taxes on wines shipped; they simply want
the 21st interact?] to be eligible for such permits on the same basis as
in-state wineries.”
129
Bainbridge v. F: Wine consumers and out-of- Tjoflat: There was not a Roney: FL.’s State alcohol regulations
Turner, state wineries brought action sufficient inquiry at the trial statutory scheme is that facially, in their
311 F.3d 1104 challenging FLs statutory level as to whether FL.’s constitutional purpose, or in their effects
(11th Cir. scheme prohibiting out-of-state statutory scheme, allowing in- under §2 of the discriminate against out of
2002) wineries from shipping their state wineries to directly 21st. The scheme staters are subject to the
products directly to FL consumers deliver to FL. residents, via is in furtherance same test as are other
[FL. statutory while permitting in-state wineries their own vehicles, but of the core discriminatory state laws:
scheme to do so. The District Ct. granted prohibiting out-of-state concerns of the If a state of local law is
prohibiting out- SJ to state, and πs appealed. The wineries from doing the same 21st in preventing discriminatory in purpose
of-state Court of App. reversed & was in furtherance of a “core minors from or effect it is subject to
wineries from remanded holding: that if FL concern” of the 21st, therefore, securing and heightened scrutiny,
shipping their could demonstrate that its if FL can demonstrate that its consuming alcohol meaning that the state
products statutory scheme was closely statutory scheme was closely & ensuring that the must demonstrate:
directly to FL related to “a core concern” of the related to “a core concern” of state can (1) a legit state interest and
consumers 21st of raising revenue and not a the 21st of raising revenue and effectively tax and that
while pretext for mere protectionism, not a pretext for mere regulate alcohol (2) no reasonable non-
permitting in- FL's statutory scheme could be protectionism, FL's statutory merchants who sell discriminatory alternatives
state wineries upheld against a dormant CC scheme could be upheld against to state citizens. are available to advance
to do so may or challenge. a dormant CC challenge, SJ the same legitimate state
may not be in reversed and remanded. or local concerns.
furtherance of I: Whether FL. may prohibit out-
a core concern of-state wineries from shipping “Webb-Kenyon Act & 21st do The difference in the
of the 21st  their products directly to FL. not constitute a reconveyance alcohol context is: the
the Trial Ct. did consumers while permitting in- of authority enabling states to state’s legit interest must
not allow a full state wineries to do so via their regulate liquor in a way that be a “core concern” of the
inquiry  own delivery services. [how do was immunized from CC 21st.
reversed & the Dormant CC & §2 of the 21st scrutiny.”
remanded.] interact?]
Tjoflat
Summary of Dormant CC & 21st Amendment Interaction:

• State alcohol regulations that facially, in their purpose, or in their effects discriminate against out of staters are
subject to the same test as are other discriminatory state laws: If a state of local law is discriminatory in purpose or
effect it is subject to “heightened scrutiny”, meaning that the state must demonstrate:
o (1) a legit state interest and that;
o (2) no reasonable, non-discriminatory alternatives are available to advance the same legitimate state or local
concerns.
• The difference in the alcohol context is: the state’s legit interest must be a “core concern” of the 21st.
e. Exceptions to the Dormant Commerce Clause
• There are two main exceptions to the Dormant CC, each created prudentially by the ct.:
o (1) Congress approves of the state’s or locality’s law:
 “If Congress ordains that the States may freely regulate an aspect of interstate commerce, any
action taken by a State w/in the scope of the congressional authorization is rendered invulnerable to
CC challenge.”
 Ex. In re Rahrer, 140 U.S. 545 (1891):
• Facts:
o Ct. in an earlier case held that a state law restricting the importation and sale of
alcohol violated the CC.
o Congress then adopted a law expressly permitting state regulation of the
importation and sale of alcohol w/in their borders.
• Holding:
o “The power to regulate commerce is solely in the general govt., and it is an
essential part of that regulation to prescribe the regular means for
accomplishing the introduction and incorporation of articles into and with the
mass of property in the country or State.”
130
 Exception to the exception:
• In spite of the congressional approval these state/local laws are still subject to judicial
challenge in two ways:
o (1) 14th Amendment Equal Protection Challenge;
o (2) 14th Amendment Privileges & Immunities Challenge.
 This is one of the few areas where Congress has clear authority to overrule a S. Ct. decision
interpreting the Constitution.
 One of the principle areas where Congress has legislated to allow state statutes to regulate
commerce in an otherwise impermissible manner is insurance regulation.
o (2) The “Market Participant Exception”

 Provides that a state may favor its own citizens in dealing with govt.-owned business and in
receiving benefits from govt. programs.
• If the state is laterally a market participant, such as with state-owned businesses, and not
a regulator, the Dormant CC does not apply.
⋅ Congressional Approval
⋅ Western & Southern Life Insurance Co. v. State Board
of Equalization of California
⋅ The Market Participant Exception
⋅ Reeves, Inc. v. Stake
⋅ South-Central Timber Development, Inc. v. Wunnicke
Case Name Facts & Issue Plurality Additional Rule

Western & F: CA passed an Insurance Brennan: No, CA’s Retaliatory Ins. Congress via the “If Congress
Southern Life Code, specifically § 685, Co. Tax is not violative of the CC b/c McCarran Ferguson ordains that the
Ins. Co. v. which imposes a retaliatory Congress passed the McCarran Act expressed it States may freely
CA, 451 U.S. tax on out-of-state Ins. co.’s Ferguson Act, which allows the states support of state Ins. regulate an aspect
648 (1981) doing business in CA, to regulate the insurance industry w/in industry regulation & of interstate
whose state of Inc. imposes their borders as they see fit. taxation = CC commerce, any
[Congress higher taxes on CA Ins. violation framework action taken by a
passed an act co.’s who do business there. §§ 1-2 of McCarran Ferguson Act: does not apply. State w/in the
giving the π paid the “Congress declares that continued scope of the
states the disproportionately higher regulation of the INS. industry by the However, perhaps the congressional
power to taxes from 1965-71 and several states is in the public interest, Ins. co. could have authorization is
regulate & tax brought this action seeking and that congressional silence shall not alleged an 14th rendered
the Ins. an injunction against CA be construed to impose any barrier to Amendment or EP or invulnerable to CC
regulation  under the CC. the regulation or taxation of such P & I’s violation by challenge.”
CA’s business by the states.” CA.
discriminatory I: Is CA’s retaliatory Ins.
Ins. taxing Co. tax violative of the CC? “The business of ins. shall be subject to
scheme is the laws of the several states which
constitutional.] relate to the regulation or taxation of
such business.” [Ct. says the language is
unequivocal!]
Class:
Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946) p. 361

Facts/Procedure:
A state imposed a tax on out-of-state Ins. co.’s, but exempted instate Ins. co.’s from the same tax.
Holding:
Ct. held that such a tax scheme was permissible b/c Congress can approve state taxes that discriminate
against interstate commerce and otherwise would be unconstitutional.
The federal McCarran Act again permitted this.
Class:
However, perhaps the Ins. co. could have alleged an 14th Amendment or EP or P & I’s violation by the state
in Q.
131
Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985) p. 361
Facts/Procedure:
A state imposed a tax on out-of-state Ins. co.’s, but exempted instate Ins. co.’s from the same tax.
Holding:
Ct. held that the state tax violated the EP Clause of the 14th Amendment even though the McCarran Act
permitted the state to enact the tax.
Class:
The “Market Participant Exception”/State As A Market Participant Not As A Govt. Regualtor
 Provides that a state may favor its own citizens in dealing with govt.-owned business and in
• If the state is laterally a market participant, such as with state-owned businesses, and not
Hughes v. Alexandria Scrape Corp., 426 U.S. 794 (1976) [The “Market Exception” Is Born! ] p. 362
Facts/Procedure:
MD required more voluminous and strict proof of ownership of abandoned or impounded vehicles for out-of-
state scrap companies than of MD scrap companies.
If the out of state corp.’s did not comply with the higher level of proof of ownership MD took title and sold
the scrap itself.
Holding:
Ct. held that MD was a “market participant” as it was purchasing cars, and therefore its discriminatory
actions against out-of-staters did not violate the CC.
Rule:
“Nothing in the purposes animating the CC prohibits a stare, in the absence of congressional action, from
participating in the market and exercising the right to favor its own citizens over others.”
Class:
132
Reeves, Inc. F: 1919-20 S.D. in response to a Blackmun: No, S.D.’s Powell: This is the type of If the state is
v. William cement shortage built a state- preferential/discriminatory rationing economic protectionism the literally a market
Stake, 447 owned cement plant to provide of cement does not violate the CC CC was intended to combat. participant, such as
U.S. 429 the material necessary for the b/c S.D. was not acting as a State with state-owned
(1980) growing state. Reeves, Inc. is a Govt. Regulator here, rather S.D. The application of the CC businesses, and not
Wyoming Cement Corp. that was acting as a “Market should turn on the nature a regulator, the
[If the state is gets its raw material from the Participant.” of the state activity: Dormant CC does
laterally a S.D. cement plant. Reeves (1) States should be able to not apply.
market purchased 95% of its cement “There is no indication of a discriminate against out-of-
participant, from S.D. 1978 plant constitutional plan to limit the staters when fulfilling a
such as with mechanical problems & a ability of the states themselves to traditional or intrigal role of Barnes 3 types of
state-owned booming construction industry operate freely in the market state govt.’s. concerns DCC-
businesses, combined to produce a cement economy.” external reg, hyper
and not a shortage. In response S.D. (2) But, when a state is reg, market
regulator, the declared that it would fill all This case also involves state acting as a participant in the protectionism – do
Dormant CC S.D. resident’s orders first and sovereignty as S.D. is fulfilling its private market the not want ostate or
does not the remainder would be role as “the guardian and trustee of constitution forbids actions locality to give
apply.] available for out-of-staters. its people.” that would impede the flow advantage to local
Reeves was forced to cut back of commerce. interest (here state
76% of its output and brought “S.D. as the seller of cement is helping state
this action seeking an injunction unquestionably fits the ‘market Here S.D. fits (2) and is citizens first, they
under the CC. participant’ label.” impermissibly discriminating still have a mission
against out-of-state market as states to create
I: Is S.D.’s Possibly a PQD issue as well: participants. rule structures to
preferential/discriminatory (2) a lack of judicially discoverable protect
rationing of cement violative of manageable standards for resolving Barnes: also create the (privileging instate
the CC? it (more prudential); rules in which they have to over out of state
follow but to their benefit. concerns) IF WE
Dissent believes majority CARE ABOUT
has abandoned the notion MARKET PRO
of acting in protectionist THEN ISN’T
manner Dissent wants a THERE A PROB
diff test. IF STATES W/GIVING
TRULY ACTING STATES FREE
OUTSIDE INTEGRAL REIGN NOT
MARKET FUNCTIONS WITHSTANDING
THEN ASK Q ABOUT EXPTION.
DISCRIMINATION (NAT
LEAGUE OF CITIES
LINE IN DISSENT)
Class:
Case Name Facts & Issue Plurality Rule

White v. Mass., 460 U.S. F: Mayor of Boston passed an Executive Rehnquist: No, Boston in If the state is literally a
204 Order requiring that all construction projects funding or partially funding market participant, such
[Ct. Holds the Boston funded with city funds or funds distributed by these construction projects is as with state-owned
Mayor’s Executive Order the city had to have a work crew that was at participating in the private businesses, and not a
was an act of the city of least half comprised of Bostontonians. market, not as a regulator, but regulator, the Dormant
Boston not as a regulator, Contractor sought an injunction under the CC. as an actual participant. CC does not apply.
but as a “market
participant”  I: Does the Boston Mayor’s Construction (does not mean Priv
constitutional] Executive Order violate the CC? and immunities
question here)
Class:
o Mayor of Camden case suggests that in these situations a valid claim for state discrimination against out-of-
staters based on Art. IV’s P & I’s Clause can be brought in lieu of an unsuccessful Dormant CC challenge
[See Infra].
o Why a different result than Mayor of Camden?
o πs won below on dormant CC, so when the case made it to the S. Ct. there was no P & I’s
argument.
133
o Was there a “substantial reason,” we’ll never know! ;) [But, of the set-aside will naturally force the
contractor to pass up qualified out-of-staters the statute will likely violate P & I’s.]
Exception to the Market Participant Exception

S.-Central Timber Dev., F: AK Dept. of Natural White: Yes, the Primary Rehnquist: The The states may
Inc. v. Alaska, 467 U.S. Resources passed a notice that it Manufacture Requirement is plurality’s distinction not impose
82 (1984) would open-up timber land in violative of the DCC clause b/c AK is between a state as a conditions,
Icy Cape on 10/23/1983. not acting as a market participant market participant and whether by
[State Is Wearing 2 primary manufacture b/c it is imposing burdens on the as a market regulator is statute or
Hats!  Bad State!: AK requirement: AK conditioned timber co.’s after their market sale artificial and regulation, or
is not acting as a market access to the timber on a relationship has ended. AK is using unconvincing. K, that have a
participant  AK is using requirement that the timber its sales position to impose govt. substantial
its sales position to companies process the timber in regulations. AK still has many regulatory
impose govt. regulations state [i.e. to provide Alaskans ways to get the same effect outside
 unconstitutional] jobs]. The requirement did not Case is distinguishable from effect: state could sell of that
apply to unprocessed timber not Alexandria Scrap. MD was acting as its timber only to particular
Barnes: theoretically owned by the state. B/c of this a purchaser of scrap, but AK is acting instate processors (a la market.
why we have this imposed requirement AK as a seller & exploiting this position Reeves); State could
market exception charged significantly less for the to impose post-sale state regulation. directly subsidize its Barnes: what
Also draw comparison timber than it otherwise would processors, making types of
to Carbone have [i.e. a round-about state “The market-participant doctrine them cheaper (a la conditions
If you get market subsidy]. S.-Central brought this permits a state to influence a discrete, Hughes); the state would be ok.
participate question action seeking an injunction identifiable class of economic activity could have its logs IF regulation
hard part is thinking against the enforcement of the in which it is a major participant.” processed in state and they would get
back to DCC primary manufacture only sell processed (regulator
jurisprudence is this the requirement under the CC. However, “the state may not impose logs. [Sounds like analysis) in
type of activity we want conditions, whether by statute, Stevens Dissent in NY this capacity
to bless if straight DCC I: Is the Alaska primary regulation, or K, that have a v. US i.e. the state has leave alone,
anlysis if not large manufacture requirement substantial regulatory effect outside ways it can get the then we care
problems under the violative of the DCC clause? that particular market.” same result, even about instate
analysis it does not look under the ct.’s out of state
like situation where it is holding.] and then the
ok fine but if end up burden
w/SS timber doing same
as carbone they both are
trying to privillage an
instate pro of a service
we have to say that this
looks like a concern and
should be fulled by
sneaking sus that this is
the type of reg DCC
should be lmting
Class:
Criticism & Support of The Market Participant Exception

• Criticism:
o (1) Protectionism should not be allowed regardless of whether the state is acting in a proprietary or a
regulatory capacity [See e.g. Powell’s Dissent in Reeves]
o (2) There is no clear distinction between situations where the govt. is acting as a regulator as opposed to a
“market participant.”
• Support:
134
o (1) Allows the states’ citizens to recoup the benefits of the state taxes they pay and out-of-staters do not.
o (2) Professor Tribe’s argument: State spending programs are less coercive that regulatory programs or taxes
with similar purposes and they seem less hostile to out-of-staters and less inconsistent with the concept of
union.
o (3) Barnes says that if the states are participating in the market the issue cannot be market protection b/c they
are subject to the regulation of the market, this theory, however, only works when the state truly acts only as
a participant.
Summary [The Burden Shift Comes From the Attitude of The Ct. Re: the state’ purported interest]:
If a state of local law is discriminatory in purpose or effect 
it is subject to heightened scrutiny, meaning that the state must demonstrate:
(1) a legit state interest and that
(2) no reasonable non-discriminatory alternatives are available to advance the same legitimate state
or local concerns.
The presumption under this test is towards invalidity.
If the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental [Balancing Test]
it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative
local benefits.
The presumption is towards validity.
Exceptions:
(1) Congress approves of the state’s or locality’s law:
“If Congress ordains that the States may freely regulate an aspect of interstate commerce, any
action taken by a State w/in the scope of the congressional authorization is rendered
invulnerable to CC challenge.”
(2) The “Market Participant Exception”
Provides that a state may favor its own citizens in dealing with govt.-owned business and in
If the state is literally a market participant, such as with state-owned businesses, and not
Exceptions to the Exceptions:

(1) 14th Amendment Equal Protection Challenge;
(2) 14th Amendment Privileges & Immunities Challenge.
C. The Privileges and Immunities Clause of Article IV, § 2

1. Introduction
2. Analysis Under the Privileges and Immunities Clause
⋅ What Are the “Privileges and Immunities of Citizenship?”
⋅ Toomer v. Witsell
⋅ United Building and Construction Trades Council of
Camden County and Vicinity v. Mayor and Council of
the City of Camden
⋅ Baldwin v. Fish and Game Commission of Montana
⋅ What Justifications Are Sufficient to Permit Discrimination?
⋅ S. Ct. of New Hampshire v. Piper
A Alternative To The Dormant CC Re: Challenging A State Law That Discriminates Against Out-Of-Staters
• Art. IV § 2, cl. 1:
o “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the
several States.”
• Limits the ability of a state to discriminate against out-of-staters w/regard to:
o (1) fundamental rights, or;
o (2) important economic activities.
 Usu. re: U.S. citizens’ ability to earn a livelihood.
• State discrimination in favor of its own citizens against the citizens of other states re: fundamental rights
or important economic activities can only w/stand scrutiny when:
135
o The ct. finds that the state has a legit “substantial interest” that outweighs the federal interest in
equal treatment of all U.S. citizens by each state.
• The term “citizen” as used in Art. IV. § 2 is restricted to U.S. citizens.
o A U.S. citizen’ s residency in a state is synonymous with citizenship in that state.
• The S. Ct. has said that there is a “mutually reinforcing relationship” between the CC and the P & I’s
Clause, however, there are a number of important differences:
o (1) P & I can only be used when there is discrimination against out-of-staters, while CC can also
be used where the state law “unduly burdens” interstate commerce, regardless of whether it
discriminates against out-of-staters.
o (2) Corp.’s and non-U.S. citizens may sue under the CC, but not under the P & I’s clause.
o (3) The Market Participant & Congressional Approval exceptions to the CC do not apply to the P
& I’s Clause.
• Barnes Says: Realize where there is overlap
Dormant CC P & I’s [Law Must Be Discriminatory; must have U.S.
citizens]
• Who: Citizens; Corp.’s; Aliens • Who: U.S. Citizens (individuals)
• Must burden interstate commerce • Must Discriminate (required)
• Exceptions: Market Participant; Congressional • Test (COA): If a state discriminates against
Approval outsiders there is a strong presumption of invalidity
• Different Tests (COA): Discriminatory(optional) v. & to survive scrutiny a state must show s legit
Nondiscriminatory “substantial relationship” to a state objective, which
overcomes the federal interest in equal treatment of
all U.S. citizens.
o State must show there is not a less
restrictive alternative.
• Dormant CC’s exceptions do not
apply!
• NO EXEMPTIONS
Analysis Under the P & I’s Clause:
• Two Basic Qs When Dealing W/a P& I’s Clause Issue:

o (1) Has the state discriminated against out-of-staters w/regard to P & I’s it extends to its own
citizens?
o (2) If there is such discrimination is it justified by a “substantial state interest?”
• The P & I’s Clause is not absolute, but it creates a strong presumption against state and local laws that
discriminate against out-of-staters w/regard to fundamental rights & important economic activities.
What Are The “P & I’s Of Citizenship”
• Corfiled v. Coryell, (Cir. Ct. E.D. Pa. 1823)

o The clause protects interests, “which are fundamental; which belong, of right, to the citizens of all
free govt.’s. They may be comprehended under the following general heads: Protection by the
govt., the enjoyment of life & liberty, with the right to acquire & possess property of every kind,
and to pursue & obtain happiness & safety; subject nevertheless to such restraints as the govt. may
justly prescribe for the good of the whole.”
• Baldwin
o The clause applies “only with respect to those P & I’s bearing on the vitality of the nation as a
single entity.”
• Mayor of Camden
o “The issue is whether the interest is sufficiently fundamental to the promotion of interstate
harmony.”
136
Ct.’s Application of P & I’s Framework
• Ct. has primarily applied the P & I’s Clause in 2 Contexts:

o (1) When a state is discriminating against out-of-staters w/regard to constitutional rights;
o (2) When a state is discriminating against out-of-staters w/regard to important economic
activities.
• Doe v. Bolton, 410 U.S. 179 (1973) [Ct. invalidates a state residency requirement to
obtain abortions based on the P & I’s Clause]
o Facts:
 GA passed a law that allowed GA citizens to obtain abortions when a Dr. deemed the
procedure medically necessary due to: threat to the health or life of the mother, serious
defect of the fetus, or rape.
o Holding:
 S. Ct. held that a state could not limit the ability of out-of-staters to obtain abortions in
the state. Ct. declared the law unconstitutional and invalidated the residency requirement
for GA abortions based on the P & I’s Clause.
• “Just as the P & I’s Clause protects persons who enter other States to ply their
trade, so must it protect persons who enter GA seeking the medical services that
are available there. A contrary holding would mean that a State could limit to its
own residents the general medical care available within its borders. This we
could not approve.”

Toomer v. Witsell, F: Group of GA shrimpers sued for an CJ Vinson: The P & I’s clause
334 U.S. 385 (1948) injunction & declaratory relief against SC due SC Code §3379 is unconstitutional under is not an absolute,
to §3379 of the SC code, which required Art IV § 2, cl. 1 of the Constitution, the P but it bars
[SC disparate fees for “payment of a license fee of $25 for each & I’s clause, b/c the law is “plainly and discrimination
shrimp boat licensing, shrimp boat owned by a resident, and of frankly discriminatory against non- against citizens of
based on in-state v. $2,500 for each one owned by a nonresidents, and the record leaves little doubt other states where
out-of-state residency resident.,” in order to shrimp in SC waters. πs but that the discrimination is so great that its there is no
is unconstitutional contended: “The purpose and effect of this practical effect is virtually exclusionary.” substantial reason
under the P & I’s statute is not to conserve shrimp, but to beyond the mere
Clause b/c the law is exclude non-residents and thereby create a P & I’s Clause was designed to: “insure to fact that they are
plainly discriminatory commercial monopoly for SC residents.” SC a citizen of State A who ventures into State citizens of other
& SC has no contends: §3379 is a conservation measure B the same privileges which the citizens of states.
“substantial state State B enjoy.”
interest” at stake.] I: But it does not
(1) Under §3379, has SC discriminated against Barnes says: Corp. co-party was dismissed preclude disparity
If yes to issue 1. get out-of-staters w/regard to P & I’s it extends to b/c it was not a “citizen.” Like Hughes. of treatment in the
analysis close to DCC its own citizens? many situations
strong presumption (2) If there is such discrimination is it justified where there are
that rule will fail. by a “substantial state interest?” perfectly valid
independent
reasons for it.
137
United Bldg. & F: Camden, NJ passed a Municipal Rehnquist: Camden’s Construction Application of P & I’s
Constr. Trades Ordinance requiring that “at least 40% of Ordinance is unconstitutional under the clause entails two-step
Council of Camden v. employees of contractors and P & I’s clause b/c (1) we have never inquiry:
Mayor & Council of subcontractors working on city construction narrowly limited the P & I’s clause to (1) whether ordinance
Camden, 465 U.S. 208 projects be city residents.” State Treasurer solely state-wide govt.; (2) Camden’s burdens one of those
(1984) approved the ordinance. πs contend: the ordinance has the effect of discriminating P & I’s protected by
Camden Ordinance violates the P & I’s against out-of-staters b/c out-of-staters, clause, and;
[SJ was improper b/c clause by preventing out-of-staters from an by definition, do not live in Camden, and; (2) if so, whether there
the ordinance equal shot at Camden construction jobs. (3) Camden does not have a “substantial is substantial reason
discriminated against NJ/Camden contends: (1) the P & I’s interest” in this discrimination based on for discrimination
pursuit of livelihood, clause was only intended to apply to state the incomplete trial proceedings alone. against citizens of
one of the P & I’s laws, not municipal ordinances, and; (2) the Reversed & Remanded. other state.
protected by the P & I’s Clause only applies to laws that
clause, and the trial discriminate based on state, as opposed to “Certainly, the pursuit of a common Similar to White v.
proceedings did not city, residence. calling is one of the most fundamental Mass, but here the ct.
provide enough info to of those privileges protected by the was addressing a P &
determine whether I: Clause.” I’s Q not a CC Q [i.e.
Camden has a (1) Does Camden’s ordinance discriminate “market participant”
“substantial against out-of-staters w/regard to P & I’s it The ordinance was not immune from exception does not
reason/interest” for the extends to its own citizens? review under P & I’s Clause merely b/c apply to P & I’s Qs.].
discrimination.] (2) If there is such discrimination is it some in-state residents were similarly Barnes
justified by a “substantial state interest?” disadvantaged. Lower ct in white no
(PI corp gets knocked P&I mass was dicrim
out and ind remains Barnes- Imposs to justify b/c not enough info in against both/in and out
also looks like DCC DCC market participant the facts. camden says doesn’t
problem) P&I No pwr to vilate Art IV matter but was not
infront of the supreme
If you see DCC prob you need to ask if PI ct but dicta in white
problem as well says theat if this were
in front of us it would
be diff for out of
staters to prevail b/c
they would have to
effect out of state so
bad if the rule was so
burdomsome on out of
state interest if they
seek instate instead of
out of state (to the
event dealing w/set
aside high burden of
proof inside interest
prevailing.
138
Baldwin v. F: In its hunting licensing Blackmun: Distinguishable from Application of P &
MT, 436 U.S. system for elk-hunters, No, the MT Hunting Licensing System does Toomer b/c that case I’s clause entails
371 (1978) the MT required not violate the P & I’s Clause b/c: involved the pursuit two-step inquiry:
nonresidents to pay a (1) access by nonresidents to recreational big of economic (1) whether
[MT Disparate substantially higher fee game hunting in Montana did not fall within livelihood, or ordinance
Hunting than residents for a the category of rights protected by the P & commercial unreasonably
License Fees hunting permit. The I’s clause, and enterprise the burdens one of
based on state nonresident paid 7 1/2 (2) the efforts of MT to allocate access to shrimpers were not those P & I’s
citizenship was times as much as the recreational hunting were rationally related shrimping for fun, it protected by clause,
not resident, and if the to the preservation of a finite resource and was work. Here, and;
unconstitutional nonresident wished to hunt to a substantial regulatory interest of the these hunters kill elk (2) if so, whether
under the P & only elk, he paid 25 times state and did not violate the EP clause. for sport. there is substantial
I’s clause b/c as much as the resident. reason for
sport hunting P & I’s Clause only applies to activities Only with respect to discrimination
is not “one of I: Does the MT law which bear "on the vitality of the Nation as those "privileges" against citizens of
those P & I’s violate the P & I’s Clause? a single entity." Since elk hunting is a and "immunities" other state.
protected by (i) Does it discriminate recreational activity and not fundamental to bearing upon the
clause.” against out-of-staters? the survival of nonresidents of MT it does not vitality of the nation Barnes says: no
(ii) Does MT have a fall w/in the scope of the protections as a single entity standing problems
Barnes: substantial interest that guaranteed by the Constitution. must a state treat all here  capable of
Bit of a DCC justifies the law, despite its "Equality in access to MT elk is not basic to citizens, resident and repetition yet
issue as well discrimination against out- the maintenance or well-being of the nonresident, equally. evading review.
But everyone of-staters? Union.”
gets treated the Barnes: talk about
same residents approximation and
regarding the does this go to the
spoils of the core or square in the
natural ambit of commercial
environment activity.
139
S. Ct. of NH v. F: VT resident/attorney Powell: Yes, NH’s Bar Residency Rehnquist: NH has a Application of
Piper, 470 U.S. brought action against NH Requirement violates the P & I’s Clause “substantial interest” P & I’s clause
274 (1985) S. Ct., challenging NH’s b/c: (1) the pursuit of economic livelihood in restricting its bar entails two-
residency requirement for is one of the P & I’s protected by Art. IV, membership to state step inquiry:
[NH’s Bar admission to the bar. NH and; (2) NH’s arguments for a “substantial residents b/c the law (1) whether
Residency argues that the reason” fail. varies from state to ordinance
Requirement is requirement is necessary state and the states burdens one of
unconstitutiona b/c nonresident members (i) Unless a lawyer has, or anticipates, a should have the those P & I’s
l b/c the pursuit would be less likely to (i) considerable practice in NH ct.s, he is discretion to determine protected by
of economic become, and remain, unlikely to take the bar examination and who is best suited to clause, and;
livelihood one familiar with local rules pay the annual dues of $125. practice and enforce (2) if so,
of the P & I’s and procedures; (ii) to (ii) A lawyer will be concerned with his their respective laws. whether there
protected by behave ethically; (iii) to be reputation in any community where he is substantial
Art. IV & NH available for local court practices, regardless of where he may live. (regulatory and reason for
did not use the proceedings; and (iv) to do (iii) a high % of nonresident lawyers constituency discrimination
“least restrictive pro bono in the State. willing to take the state bar & pay the argument) against citizens
means” in annual dues will reside in places of other state.
pursuing its goal I: Does NH’s requirement reasonably convenient to NH. And when Applying a “least
of ensuring its that an attorney be a nonresident counsel will be unavailable on restrictive means”
bar members are resident of the state for short notice, the State can protect by analysis is improper
effective admission to the state bar allowing the trial ct. to require any out-of- here b/c the ct. is 2nd
attorneys.”] violate the P & I’s Clause? state lawyer to retain a local attorney who guessing the
(1) Does the requirement will be available for unscheduled meetings legislature, this is
Barnes: 2 part burdens one of those P & and hearings. improper judicial
analysis. Not I’s protected by clause, (iv) Most non-resident’s will still likely do activism.
really diff from and; pro bono work and the state can require (Rehnquist says who
DCC test at the (2) if so, is there a them, from time to time, to represent appoved this analysis)
end if ct says substantial reason for indigents.
think of ways discrimination against (STRUCTURAL/
reasons do not citizens of other state. NH has not show that is used the “least PROCEDURAL)
hold much water restrictive means”or non-discriminitory
and weighted. means in pursuing its goal of ensuring There are legit reasons
its bar members are effective attorneys. for requiring
Barnes says the residency, e.g. short
purpose as (court raises DCC language here and the notice ct. proceedings,
legitimate or if test feels the same) whether it effects and requiring the
it is pretextual interstate commence is difference appointment of local
co-counsel will
interfere with the
attorney client-
relationship.
Barnes follow up on Piper

Piper Case follow-up: There was no Dormant Commerce Clause (DCC) issue raised in the case. The Court does
not discuss why, but commenters have speculated that prior to Piper, there was no indication that the Court
considered law licensing requirements to be an issue pertinent to the national economy or interstate commerce.
Related to our discussion today, there are at least two ways to consider the DCC issue on these facts. First, despite
the Court’s recognition that the practice of law affects the national economy, you could argue—as the Court did in
the Lester Baldwin case—that New Hampshire’s requirements for individual’s to be licensed to practice law were
not tantamount to regulating the business enterprise of law practice. Hence, the claim would be that New
Hampshire’s rule really didn’t limit the ability of attorneys to do business across state lines; it only required that
140
members of the NH bar maintain a residence in NH. Second, in the alternative, you could argue that NH facially
discriminated between in-state and out of state residents in a way that impeded the business enterprise in the practice
of law across state lines. Then your next step would be to do the DCC burden shift and analysis that is substantially
similar to the analysis under Privileges and Immunities.
Summary: An Art. IV P & I’s Inquiry Is Really a 3 Step Process
• (1) Does the state/local law discriminate against out-of-staters?  If yes continue.
o If no  Constitutional under P & I
• (2) Does the state/local law burden one of those P & I’s protected by clause.  If yes continue.
o If no  Constitutional under P & I
• (3) Does the state have a substantial reason/interest justifying the discriminatory treatment of out-of-
staters?
o If yes, the state has a substantial reason/interest the ct. will balance the state interest against the
federal & individual interest in equal treatment.
 State wins the balance  Constitutional under P & I
 Federal/Individual interest wins the balance  Unconstitutional under P & I
o If no, the law is automatically Unconstitutional under P & I at this point.
• Barnes Exam Review:
o Write your confusion, if you need 1 or 2 additional facts specify them and qualify your answer based upon those
assumptions.
o Always state the correct doctrine!
o 3 purposes:
 est. natl. govt.
 allocate power amongst diverse branches
 limit the scope of govt. power
o A “lynch pin for relationships”:
 Fed Govt. v. Itself (horizontal relationships)
 Fed. Govt. v. States
 Fed. Govt. v. Citizens
 States v. Citizens (vertical relationships)
 Citizens v. Citizens
See critical instances where monumental turns have come w/either horizontal or vertical relationships but at the end of the day learn some method
for saying not random there are repeated central themes
o Bring all materials!
o Talk about structure, use as inter-doctrinal glue!
o Fed. Jud. Power:
 Origin
• Art. III
• Federalist Construction from Marshall (of federal judiciary/ yes case law gives us scope but mainly
art III and largely federalist national jud to decide what law is
 Breadth- can talk about in in lmts/how the ct defines there own role
• The foundational cases [Marbury; Gibbons; McCulloch; Baker] how ct conseves of there own pwr of
judicial review(baker the creation of pol question doc) (mucullahc how to use nec/proper to prop up
sup) (breadth what ct does for us to prop up pwrs)
 Limits
• Art. III Congressional Exceptions (checks art III)
• Self-imposed limitations (Justicablity)
o No advisory opinions
o Standing
o Ripeness
141
o Mootness
o PQD/Sep. of Powers:
 Brennan's PQ test:
 (1) a constitutionally demonstrable commitment of the issue to a coordinate
political department (more constitutional);
 (2) a lack of judicially discoverable manageable standards for resolving it
(more prudential);
 (3) the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion (more prudential, but C/P);
 (4) the impossibility of the ct.s undertaking independent resolution without
expressing lack of the respect due coordinate branches of Govt. (more
prudential);
 (5) an unusual need for unquestioning adherence to a political decision
already made (more prudential);
 (6) Sees potential for embarrassment from multifarious pronouncements from
different branches (more prudential, but C/P).
 Courts (your) Tools!: (methods of interpretation: orginialism, mod orig, use of text v structure but we explicitly
look at how methodology looked at text and outcome “text never does all of the work for us” 2nd AM cases
• Interpretation
• Structure/Sep. of Powers (where does ct yield/cong weigh in)
• Barnes Structure [pick & choose, do not regurgitate]: DO NOT SPIT BACK UNLESS RELEVENT
not for class to repeat back to him about trying to contextualize what we learned but use in a manner
that makes sense.
o Context-
o Content-
o Progression-
o Non-resolute nature-
o Fed. Leg. Power: (would organize this inquiry as follows)
• Authority [Enumerated Powers] more then other branches has authority more specific then other
branches textual art I authorization.
• Taxing & Spending
• Enforcement under §5 14th Amendment
 Scope- ct defining in shifting contours for the textual authorization
 Commerce- we see swing backs or cong all pwrful Mcullach cong not states nec/prop life- 10th and 11th have
teeth, scope is def by ct contours
• Determined by the S. Ct.
• Shared Powers Federalism v. Supremacy
o McCulloch [Supreme] (Constitution as an organizing structure, its not a damn statute!)
 “plainly adapted” under Necessary & Proper Clause
 Limits
• Limits: 10th & 11th, Presidential Veto, Judicial Review
 Commerce Power!: (Hard Mapping doc diff b/c change in eras and what looks like a pronounced test (and then
a case which brought market analysis which disturbed linerar direction of the doc. Is ct creating a zone
of activities or ignoring it we keep questioning at any moment. Gonzolas)
• 3 Qs
 14th § 5 Rule Development:
• a) Congress may abrogate 11th when: (federalism and comp notions of fed supremecy)
o (1) Clear Statement
o (2) Valid Exercise
 (a) § 5 enforcement (can’t be creation) of legislation remedying §1 14th
amendment violations of:
• (i) EP
142
o Pattern of State discrimination  widespread harm 
means must be “congruent and proportionate” to the
ends desired/i.e. the violation to be remedied.
o Ct. wants remedies w/limits
• (ii) Due Process
o Whether there is a protected class does not matter.
Not as susceptible to Overbreadth as is EP.
 State Sovereignty, 10th & 11th:
o Normative Analytical Tools:
 Trends- cts dislikes or things falling into rat basis/pref perportial reg hight scrutiny
rejecting broad or unchecked leg pwr (narrow int tools)
 Preferences
 Dislikes:
• Dislikes Overbreadth of remedies purported to address state violations
of federal law.
• Ct. does not like broad Congressional power; ct. wants narrow
congressional action to address specific tangible problems.
o Theoretic Analytical Tools: (technical analytical tools)
 Formalism v. Substantive Equality [TN v. Lane (more con w/structure then content
of laws); NY v/ U.S.]
 Doctrinal Progression: (here incremental shifting over a set of cases until we get to
a finalized doctrine talking about a widespread pwr)
• §5 of 14th goes from “plainly adapted”/substantive broad power 
narrow “widespread patter of state discrimination” & robust
Congressional Record.
 What do you do w/Lopez and Morrison b/c of Reich (market analysis) unless you
really do hard work with the facts.
o 11th counter textual
o Text vs structure attp’s to justify what does this text say or supp or what does the structure
sugg it seems that the maj and dissent do whatever they want to make harmonious w/vantage
point (Alden v. Maine) and it comes out diametrically apposed.
o Exec. Power: Broad themes
 Power:
• Art. II, Textually broad due to a lack of textual limits.
• Not many enumerated powers  leads to lots of Qs
o Interpretation
o Foreign Powers context the Ct. is deferential to the Pres.
o PQD
• Issues In Paradox- pres pwr b/c broad way ART II drafted if you talk about expanse of pres pwr 1.
do to text absence pwr very braod where there is thin text pwr broad/ paradoxically due to a lack of
text absence of lang performs opposite functions when contextualized prime example is foreign
affairs vs dom affairs lmt talk about notions of exec privillage exists in absence but lmt, notion any
inherent pwr at all is very broad
• Issues in power delegation:
o Textual limits- cant upset presentment and bicamarlizm
o Structure- pwr of exec to execute laws not create them is pres legislating only can enforce
the law
o Disputes over power sharing (def of scope)
 Line item veto
 War Powers- cong or pres
 Removal-
 Treaties – who decideds treaty/exec orders
 Legislation v. Enforcement- could not deligate pwr to legislate and then could
not keep the remainder pwr (but we did talk about those cong lmt)
o Analytical Tools Cont.
 Doctrinal Convergence- notion of ct taking justiciability off the table and jumping into the fray w/pres cong
whether exec had pwr to decide this or if pres could make a claim against this (ct says province of ct to say what
law is Marbury)
143
• Clinton v. Jones
o Sep. of Powers  PQD
• Hamdi
o Sep. of Powers  PQD
Exam- in question regarding the Keith case (ct would need to find a party meeting standing/injury ect if not maybe cong person could bring on
the behalf the of party.
In question regarding the Hamdi- Hamdan stuff you could illustrate how the court when it has seen fit to go around justiciability does so and then
punts on the issue or depending on the ct itself would step in and it is not my role to really determine how this can be decided possibly but based
on how the ct has decided in the past what could be done to address issue. Ct did side step sep/pwr issue in Hamdi and then now may deal with
having to confront that here. (but remember we have seen cases i.e. Goldwater where problem) DO NOT FORGET TO GET INTO NON-
JUSTICABLE PQD (SEE CASES)
SHOULD ASK QUESTION TO BARNES IF CONGRESS DELIGATED WAR PWR SO TO SPEAK
ALSO- WHEN DEALING AND WILL DEAL WITH QUESTION ON LOPEZ ANALYSIS/REICH (MARKET) NEED TO GET INTO THE
STRUCTURE OF THE ARG/ANALYSIS HOW THE CT HAS DEALT WITH EACH FACET OF THE TESTS THE (ANALYSIS IF IT IS
STRUCTURAL….) AND THEN NEED TO MAKE A DETERMINATION THAT DEPENDS ON CT’S CURRENT POSITION OF
FEDERALISM SEE (BOOK CLASS NOTES) AND ALSO HIGHLY FACT SPECIFIC DETERMINATION THAT TURNS THE
ANALYSIS AND COULD PUT IN ONE DIRECTION OR ANOTHER
TAKE CASES USED IN EACH LOPEZ/MORRISION- A LOT OF THE FACTS AND ANALYSIS- AND DISTINGUISH FROM
WHAT OCCURRED IN REICH ON THE FACTS WHILE USING AND ANALYZING MAJORITY AND DISSENT VIEW OF THE
SITUATION AND ULTIMATLY EITHER CONCLUDE BASED ON FACTS GIVEN IN QUESTION AND CT’S POSITION THIS IS
HOW CASE SHOULD TURN OUT
11th am may also want to compare board of trustees and tenn v lane
144

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CHAPTER 1

THE FEDERAL JUDICIAL POWER

Martin v. S. Ct of VA has to recognize the State Cts are bound by

• The 2nd Amendment problem, what does it mean?!

The rider proviso only bars the

o Brandeis’ Concurring Opinion in Ashwander v. TVA (1936):

a. Prohibition on Advisory Opinions: The 1st Major Justiciability Doctrine

Case Fact Nugget, Issue Holding Rule/DP

b. Standing: The 2nd Major Justiciability Doctrine

Pre-Lujan Doctrine on Con. Standing:

Con. Standing Requirements Post Lujan, Scalia’s Refinements:

ii Prudential Standing Requirements

2 Prudential Requirements for Standing:

Case Fact Nugget, Issue Holding Etc Rule/DP

Case F/I Holding Etc Rule/DP

Standing Summary: Is there a case and controversy?

• Art. III Standing? [Test Post Allen & Lujan]:

o Generally, NO 3RD PARTY SUITS.

o NO GENERALIZED GRIEVANCES [E.g. Frothingham & Richardson].

c. Ripeness: The 3rd Major Justiciability Doctrine

I: Is this case ripe for review

d. Mootness: The 4th Major Justiciability Doctrine

I: Are the π’s claims moot b/c

I: Are the π’s claims moot b/c

I: Is π’s case moot and therefore

• A case is considered "ripe" for federal Ct. purposes when:

• π must present a live controversy at all stages of federal ct. litigation.

e. The Political Q Doctrine: The 5th Major Justiciability Doctrine

Case Name Facts & Issue Holding Dissent Rule

Case Name Facts & Issue Holding Rule

Case Name Facts & Issue Holding Dissent Rule

ii The Political Q Doctrine Applied: Congressional Self-Governance

Term Limits Are Unconstitutional

U.S. Term Limits, Inc. v. Thornton (1995):

⋅ The Political Q Doctrine Applied: Foreign Policy

o Art. III Standing? [Test Post Allen & Lujan]:

o Generally, NO 3RD PARTY SUITS.

o NO GENERALIZED GRIEVANCES [E.g. Frothingham & Richardson].

o A case is considered "ripe" for federal Ct. purposes when:

• (4) Mootness Summary

o π must present a live controversy at all stages of federal ct. litigation.

4 Federalism Periods of the Ct.:

A. Introduction: Congress and the States

Case Fact Nugget, Issue Holding Etc Rule/DP

• The Constitution and laws of the Union are supreme.

⋅ What Role Should Concern over Protecting States

B. The Commerce Power

article 1, § 8 of the Constitution states:

The Daniel Ball, 77 U.S. 557 (1871) p. 105:

2. The 1890’s – 1937: A Limited Federal Commerce Power

• The 10th Amendment:

Roberts’ “Switch in Time that Saved Nine”:

3. 1937 – 1990s: Broad & Plenary Federal Commerce Power

⋅ The Meaning of “Commerce Among the States”

⋅ Heart of Atlanta, Inc. v. US

Three activities the commerce power can reach:

⋅ The Tenth Amendment between 1937 and the 1990s

Case Name Facts & Issue Holding Etc Rule

In Solid Waste Stevens

I: Is 23 USC § 409 a proper

Doctrinal Progression & Commerce Clause Qs:

⋅ United States v. Butler

Case Name Facts & Issue Holding Dissent Rule