con law case streams

8/8/2019 Con Law Case Streams

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Article III Cases

Marbury v. Madison and Notes (pp. 1-9) a law repugnant (Section 13 of theJudiciary Act of 1789) to the constitution is void, and courts, as well as other departments, arebound by that instrument. The court can have jurisdiction over the case but not the particular

case in controversy, because this is a political decision regarding the executive appointmentpower see Article III, Cl. 2 this case not among the original jurisdiction as specified

in Art. III. Judicial Review is established here.

It creates the authority for judicial review of executive actions. Individual rights andgovernment duties clash along with those duties that the executive has discretion to act.

The only political process is the check on the executive branch (so as to prevent abuse of

power?).

Congress cannot expand the original jurisdiction of the Supreme Court. Article III

authorizes the maximum jurisdiction of the federal courts. Congress cannot authorize

federal courts to hear cases beyond what is specified in Art. III, and federal courts cannotgain jurisdiction by consent.

Establishes the authority for judicial review of legislative acts. It declaresunconstitutional a provision of federal law (The judiciary Act of 1789, that authorizes the

supreme court to grant mandamus on original jurisdiction.)

Mainly, it establishes the authority for judicial review ofexecutive and legislative acts.

Holds that Art. III is a ceiling for the courts jurisdiction to hear cases andcontroversies to only those enumerated by the constitution.

Caveats: Judges are the counter majority, they are not accountable, and we worry aboutthem imposing their own policies on the public without being responsible for their

actions politically.

Cases and controversies:

-congress cannot allow original jurisdiction beyond the situations enumerated in the constitution.

Enumeration marks the extent to which the court has jurisdiction over cases.

-the judges oath to uphold the constitution allows for judicial review and the judge would not be

doing that if he were to uphold unconstitutional laws.

-constitution reigns supreme as the constitution is held a s the supreme law of the land.

-the duty of the judicial department is to determine what the law is.

-Marshall established judicial review while declaring unconstitutional a statute (judiciary act of

1789) that he read as expanding the courts power (before being struck down the court, the act

held that the court could review political decisions and grant mandamus). He basically said that


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we have the power to strike down laws as unconstitutional that expand our power. We are

making a power and taking a power simultaneously, however, the power that allowed them to

take a power away from themselves proved to be an enormous power for the history of the courtand our nation.

Martin v. Hunters Lessee The constitution creates a supreme court and gives congressdiscretion whether to create lower federal courtsstate attachments, prejudices, jealousies,interests might sometimes obstruct, or control, or be supposed to obstruct or control the regular

administration of justice. Furthermore, supreme court judicial review is essential to ensure

uniformity in the interpretation of federal law. The supreme court can review state decisions

because otherwise the court could not hear any decisions other than those within original

jurisdiction.

McCardle v. U.S. congresss intention to restrict the courts jurisdiction for appellate review

pursuant to the exceptions clause is constitutional and the court finds it irrelevant to question

congresss intent to impact subsequent laws, as the court will not have jurisdiction to hear the

case anyway as the constitution allows for its jurisdiction to be stripped. In this case, the court

held that congress repeal of their jurisdiction on a particular issue was express and precludedthem from hearing this case.

VS.

United States v. Klein (pp. 37-39)President could pardon those who had propertyseized in the civil war so they could have their property returned. Congress adopted a statute thatsaid a pardon was inadmissible as evidence for a claim because it was an express disclaimer of

guilt, therefore, the supreme court would have no jurisdiction over claims for the return of

property.

The court does not have jurisdiction here so it must dismiss the case and cannot rule any which

way because it does not have the authority to hear the case. The court notes that the congress is

infringing on the executive branch by trying to restrict its powers by saying that pardons will bedeemed invalid. The issue was not justiciable by the courts

Can Congress strip the federal courts of jurisdiction pursuant to the "exceptions clause" in

Art. III?

-In McCardle the court held congress can limit the court's appellate jurisdiction, where

congress repealed a law that granted the court jurisdiction to hear habeus corpus cases,

and because congress did not have the authority to hear McCardle's case, the takeawaywas that congress has the authority to prevent the supreme court review of constitutional

issues. Therefore, the fact that congress intends to change the substantive law by limiting

jurisdiction is deemed irrelevant, as the court can only examine congress power under theconstitution--and the power to make exceptions to the appellate jurisdiction is express.

Some proponents argue that McCardle holds that congress has the authority through the

exceptions clause to limit the court's jurisdiction to not hear constitutional issues. Thiswould essentially overrule Marbury and preclude the court from checking the


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congressional power and subject the executive branch to blindly enforce unconstitutional

laws that the court could have no power to review.

-In Klein, however, the court found that congress cannot limit the court's jurisdiction in a

manner that violates other constitutional provisions, like due process and takings without

just compensation, and it cannot limit an executive power, like the pardon power."

This issue remains unresolved in a couple of respects. While under the exceptions clause,

congress can legislate limitation on the court's appellate jurisdiction to hear certain cases,however, it cannot do so if congress is seeking to advance its goals to violate other constitutional

provisions like DPC or takings or infringe on solely executive powers like the "veto power" or

"pardon power."

Justiciability Doctrine (5)

most important limit on the federal judicial power. constrains courtspower of judicial review and operate before the court hears the case based on the merits. Whilejurisdiction might be good, the court lacks the ability to hear it.

Cases and controversies enumeration constrains the courts actions and determine whocan sue and where they can sue.

The prohibition against:

1. Advisory opinions courts cannot offer prospective commentary because that isbreaching the lines of the legislative branch and this does not include giving congress

advice on what is constitutional. The court can only decide something when a case is in

dispute.

2. Standing -ELEMENTS:

a. a plaintiff must allege personal injury;

b. fairly traceable to the defendants allegedly (CAUSATION); and

c. unlawful conduct and likely to be redressed by the requested relief.

i. Generalized Grievance doctrine: claim cannot be based on what ishypothetical. Damage or harm must be based on ACTUAL HARM or

IMMINENT HARM. SeeMA v. EPA cases must show clear injurythat the plaintiff will suffer personally or will suffer imminently. Global

warming injury upheld for MA against EPA because harm was imminent,despite the court having definitive proof that MA was actually being

harmed by greenhouse emissions.

3. Ripeness determines when review is appropriate and when litigation may occur. Theplaintiff must demonstrate that harm has occurred or will occur imminently. Its unfair to


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require a person to violate a law in order to challenge it, therefore the Declaratory

Judgment Act permits people to avoid this option and obtain pre-enforcement review of

statutes and regulations. EXCLUDES MATTERS THAT HAVE YET TO BEENFORCED. WHEN SOMEONE CHALLENGES A LAW THAT HAVE NOT BEEN

ENFORCED YET, ITS NOT RIPE TO LITIGATE.

4. Mootness a plaintiff must present a live controversy at all stages of the court litigationfor the legal issue to not be deemed moot. If an event subsequent to the initiation of thelawsuit occurs that resolves the matter, the conflict is moot.

a. There are three exceptions to the mootness doctrine:

wrongs capable of repetition but evading review.

Short injuries that will be resolved before the case is heard

if there is an injury likely to recur in the future and it is possible that it

could happen to the plaintiff again.

5. Political Question: Baker v. Carr Test determined for knowingwhen an issue falls under the Political Question Doctrine of non-justiciability:

Textually demonstrable commitment of the issue to a political branch

o Impeachment

o Foreign Policy

o Executive War powers

Lack of discoverable and manageable standards

Involves an initial policy determination more appropriate for non-judicial

discretion

Would involve lack of respect for other branches

Would involve adherence to a political decision already made

Would result in embarrassment from multiple pronouncements from eachdepartment on a constitutional question

ESSENTIALLY:

1. FOREIGN POLICY2. IMPEACHMENT

3. CONGRESSIONAL SELF-GOVERNANCE

4. SOME ELECTORAL PROCESS QUESTIONS


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5. ARTICLE V. PROCESSES.

6. VETO POWER

These arguments are prudential as they define separation of powers and prevent the court frominterfering in other branches.

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Commerce Clause Cases

Gibbons v. Ogden (pp. 141-145) NY/NJ Ferry Case defines congresss

commerce power court says that the federal government has broad power here. SeeAmendments 13-15. The court uses commerce clause and the 10

th

amendment. (PROFEDS)

Carter v. Carter Coal Co. (pp. 145, 147-149)Case invalidates an important pieceof New Deal legislation. Interstate commerce is not directly affected here! (PRO STATE)

A.L.A. Schechter Poultry v. United States (pp. 151-154) Rejects the stream ofcommerce approach that would allow federal regulation to intrastate trade. (PRO STATE)

Hammer v. Dagenhart(pp. 154-157)YES, they do have the power per theCommerce Clause in the constitution. And, the court notes that congress has the incidental

power to prohibit movement of ordinary commodities between states. This is a matter of

LOCAL regulation. So, basically, if they do actually cross state lines, then the Feds getthem, but if they are just being made and nothing else, then its subject to the states

authority. PRO TENTH AMENDMENT CASE; LAST OF ITS KIND. (THIS IS BAD

LAW) (PRO STATE)

NLRB v. Jones & Laughlin Steel Corp. (pp. 159-163) This case is distinguishablefrom Carter Coal because this corporation is a HUGE presence in the national product

distribution. EXPANSIVELYDEFINE THE SCOPE OF CONGRESSS

COMMERCE POWER. They reject the 10th amendment. (PRO FEDS)

United States v. Darby(pp. 164-166) Without a national standard, the states

would engage in a race to the bottom (issue 1: goods)(issue 2: employees).CONGRESS CAN REGULATE BOTH GOODS AND EMPLOYEES ENTERINGAND MAKING PRODUCTS ENTERING INTERSTATE COMMERCE becauseevery state undercutting each other in trade process would have a

SUBSTANTIAL EFFECT on Interstate commerce.EXPANSIVELY

DEFINE THE SCOPE OF CONGRESSS COMMERCE POWER. They

reject the 10th amendment. THIS CASE IS STILL GOOD LAW (PRO FEDS)


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Wickard v. Filburn (pp. 166-168) (BROADEST CASE) wheat farmercase.AGGREGATION JUSTIFIES GOVERNMENT ENCROACHMENT. THE COURTCONSIDERS THE SUBSTNTIAL EFFECTS TEST:THAT HIS EFFECT ON THEDEMAND MAY BE TRIVIAL IS NOT ENOUGH TO REMOVE HIM FROM THE

SCOPE OF FED REG WHERE HIS CONTRIBUTION ALONG WITH OTHERS IS FAR

FROM TRIVIAL.EXPANSIVELYDEFINE THE SCOPE OF CONGRESSSCOMMERCE POWER. They reject the 10th amendment. (PRO FEDS)

INSERT The 14th Amendment of the ConstitutionHeart of Atlanta Motel Inc. v. United States (pp. 169-171) Civil RightsCase of 1964 The court uses evidence that expresses the disruptive effect racialdiscrimination has on interstate commerce. Court upholds the act as constitutional. (PRO

FEDS) (GOOD LAW)

Katzenbach v. McClung (pp. 171-172) THE COURT APPLIES HERE A

RATIONAL BASIS THAT BROADLY ALLOWS CONGRESS TO FIND A WAY TOIMPART ITS LAWS OVER THE STATES IF COMMERCE IS FOUND TO BE

AFFECTED ON A RATIONAL BASIS GIVEN THE CIRCUMSTANCES. Just because

the food purchased alone from out of state does not, by itself, meaningfully affect interstate

commerce, under Wickard, if considered among all of the other places that also

discriminate, the aggregate would disrupt interstate commerce and therefore Congress

does have authority here. The court finds that there is a rational basis under Gibbons to

interfere as the government is protecting commerce on the whole even if each of the

infractions are occurring within the states. (PRO FEDS)

National League of Cities v. Usery(pp. 174-178) (CATEGORY GAMES) the10th amendment between 1937 & 1990s: this case invalidates a federal law for violating the

10th amendment. Court holds that the roles of fire, police, sanitation and public health

should be left to the states to control. If Congress were to step in here, there would be little

left of the separate and independent existence. There is also a historical argument to be

made here about how states have always governed their own government entities.

CONGRESS INFRINGES ON STATES ABILITY TO MAKE POLICY DECISIONS

THEREBY AFFECTING THAT BUDGETS OF THE STATE. TAKEAWAY HOLDING:

the commerce clause does not empower congress to enforce the minimum wage and

overtime provisions of the FLSA against the state in areas of traditional governmental

functions (Distinguishing Factor from Darby). THE FEDERAL GOVERNMENT

CANNOT GOVERN THESE EMPLOYMENT DECISIONS. (THIS IS BAD LAW) (PROSTATE)

Garcia v. San Antonio Metropolitan Transit Authority(pp. 178-183)

(OVERRULES USERY) (THIS IS STILL GOOD LAW)The court should rule ona case by case development that would lead to a workable standard for determining

whether a particular governmental function should be immune from federal reg under the

CC. The court rejects the rule of state immunity from federal regulation that turns on a

judicial appraisal of whether a particular government function is traditional or

integral. The 10th amendment asks unelected judges to make decisions that should be


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deferred to the states. The political process will work out the issues affecting the state when

congress imposes laws on them. (PRO FEDS & PRO COMMERCE CLAUSE).

United States v. Lopez(pp. 183-196) (Gun Free School Zone Act UNCONSTITUTIONAL) federal law exceeds congress commerce clause authority. Looksto (1) Channels of interstate commerce; (2) Instrumentalities; (3) Substantial Effects (1)

Congress may regulate the use of the channels of interstate commerce. Darby, Atl hotle (2)

Congress is empowered to regulate and protect the instrumentalities of interstate commerce

or persons or things in interstate commerce, even though the threat may come only from

interstate activities. (3) Congress commerce authority includes the power to regulate those

activities having a substantial relation to interstate commerce. (In the past its been unclearwhether an act must affect or substantially affect.) This court holds that is must

SUBSTANTIALLY AFFECT). LAW IS UNCONSITTUTIONAL the governments argument

to be too far reaching as if the government is interested in the national productivity, theres nostopping as to where they would be able to influence with its laws (e.g. family law). This

slippery slope argument stretches to the government then trying to make a federal educational

curriculum. -Too many inferences would have to be made to link the guns in schools to

interstate commerce. (PRO STATE)

United States v. Morrison (pp. 196-201) congress cannot regulate non-economicactivity based on a cumulative impact on interstate commerce. The 14th amendment only

prohibits state action. So basically, in my own words: under the commerce clause and the

appropriate legislation clause of the 14th amendment, congress can only pass laws that

deal with regulating state government behavior that will have an effect on interstate

commerce, and NOT laws that deal with private individual actions that have no substantial

or direct affect on interstate commerce. The amendment only applies to Government

conduct. See Congress commerce authority includes the power to regulate those activities

having a substantial relation to interstate commerce. (In the past its been unclear whether an

act must affect or substantially affect.) This court holds that is must SUBSTANTIALLYAFFECT). gender crimes are not, by themselves, sufficient to sustain a the constitutionality of

the commerce clause. (PRO STATE)

1. there is no link between gender violence and interstate commerce.2. Gender crimes are not economic at all

3. And they do not substantially affect interstate trade.

4. While congress argues that it prevents business transactions and national productivity,there is no evidence to prove that and the inferences are too extenuated.

5. If congress were to regulate this kind of crime, they would be able to regulate anytype of crime. The congress wants to use the commerce clause to obliterate the

relationship between states and federal authority.

Pierce Country, Washington v. Guillen (pp. 203-205) (DID NOT DISCUSS)

Gonzales v. Raich (pp. 205-216) (POT CASE) (COURT FOLLOWSWICKARD) (RATIONAL BASIS TEST; SUBSTANTIAL AFFECTS TEST)(ECONOMIC v. NON-ECONOMIC CATEGORIES) THE JURISDICTIONALHOOK needs to have some kind of travel in interstate commerce. It must have some kind


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of substantial affect; instrumentality; where the words of the act are constitutionally based.

Court says congressional categories of regulation under the CC are broken into 3 groups:

1. congress can regulate CHANNELS of interstate commerce.

2. congress has authority to regulate and protect the

INSTRUMENTALITIES OF INTERSTATE COMMERCE, and persons orthings in interstate commerce

3. congress has the power to regulate [a class of] activities that

SUBSTANTIALLY AFFECT interstate commerce. THIS CATEGORY IS

AT ISSUE.

Court cites WICKARD as noting that even the aggregate can be considered to equate to a

substantial affect and therefore falls on the commerce clause.

THE COURT HOLDS THAT: it need not determine whether the patients activities taken

in the aggregate, substantially affect interstate commerce in fact, but only whether a

rational basis exists for concluding. RATIONAL BASIS STD. Because pot is a fungiblecommodity and difficult to distinguish what is grown in state and out, congress worries

about a black market that might form that would affect governmental economic activity

and therefore the necessary and proper clause allows for commerce to step in and regulate

interstate commerce.

IF ACTIVITY HAS A SUBSTANTIAL AFFECT ON INTERSTATE COMMERCE, THE

RATIONAL BASIS STANDARD WILL BE IMPLEMENTED SO THAT COURTS CAN

REGULATE INTRA-STATE COMMERCE.

IF NON-ECONOMIC THE COURT WILL APPLY A TON OF SCRUTINY OF HOWITS ALL NON-ECONOMIC

YES, the CSA is a valid exercise of fed power. (PRO FEDS) (STILL GOOD LAW)

New York v. United States (pp. 216-226) Held for NY, congress cannot compelthe states to enact a federal regulatory program. congress may encourage and influence

states to act but they cannot compel them to do anything. Congress does not have the

constitutional authority to compel states to dispose of radioactive waster generated within

its boarders. (PRO STATE)

Printz v. United States (pp. 226-236) (FBI Background Check onhandgun sales by state agencies w/o pay from govt DMV disclosure of

personal records is not allowed to be sold, also, no one can sell personal information that isrequired to get a license. State argues: enforcing this would take time out of our budget and

money to enact. The state legislature would have to pass a new law to enforce this one. )THIS IS UNCONSTITUTIONAL BECAUSE STATE OFFICIALS CANNOT BE

FORCED. (PRO STATE)

Reno v. Condon (pp. 236-238) (DMV Info Case) THIS ISCONSTITUTIONAL BECAUSE THIS IS A LAW OF GENERAL APPLICABILITY. IT


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RELATES TO ALL DATABASES AND ITS DOESNT TELL THEM THAT THEY

MUST AFFIRMATIVELY DO SOMETHING; ONLY THAT THEY CANNOT DO

SOMETHING. Upheld fed law that prohibited states from selling personalinfo collected by DMV b/c sale of info is considered interstate commerce as

used for marketers for solicitation. (PRO FEDS)

The Taxing and Spending Power; PostCivil War Amendments XIII-XIV( pp. 238-239)

South Dakota v. Dole (pp. 245-247) affirms congresss power to place conditions ongrants to state and local governments. Reasoning for holding for Fed Govt: The power ofcongress to condition/withhold the allocation of its monies is incidental to the powers granted

by the spending clause of the constitution. the exercise of the spending power must be in thepursuit of the general welfare. To determine what this is, the court should defer to the

judgment of congress

1. if congress does condition the states receipt of federal funds, it must do sounambiguously and allow the states to exercise their choice knowingly cognizant of the

consequences of their participation.2. Grants will be illegitimate if they are unrelated to the federal interest in national projects

or programs

3. Other constitutional provisions may provide an independent bar to the conditional grant

of fed funds.

INSERT The 14th Amendment of the United States ConstitutionKatzenbach v. Morgan (pp. 253-257) under section 5 of the 14th amendment,congress may independently interpret the constitution and even overturn the supreme

court!! This accords congress the right to define the meaning of the 14 th amendment. 14TH

AMENDMENT IS A FLOOR. THE LINE IS WHAT IS LEGAL UNDER 14TH AMENDMENT.

IF CONGRESS WANTS TO REGULATE WHAT IS ABOVE BOARD IN 14TH

AMENDMENT TERMS; THE COURT WILL TAKE A LOOK @ CONSTITUTIONALITYWITH A RATIONAL BASIS.

SO; COURT SAYS LITERACY TESTS ARE ABOVE THE LINE (OKAY).

CONGRESS IS REGULATING WHAT IS ABOVE THE LINE AND THEREFOREPROTECTING MORE CITIZENS RIGHTS. WHAT IS THE ENUMERATED POWER

HERE?

THIS FIGHTS THE COUNTERMAJORITARIANISM DIFFICULTY BECAUSE

IT ALLOWS ELECTED CONGRESSMEN TO SAY WHAT IS CONSTITUTIONAL

REGARDLESS OF WHAT THE COURT HAS TO SAY. SEPARATES THE POWERS

BECAUSE THIS GIVES PEOPLE MORE RIGHTS BY CONGRESS DECLARING


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UNCONSTITUTIONAL COURT HOLDINGS THAT SAY WHAT IS

CONSITITUTIONAL. THIS IS A NATIONALIST PERSPECTIVE THAT THE COURT

TOOK:

CONGRESS IS ACCORDED THE POWER TO USE 5 AUTHORITY TO EXPAND

THE SCOPE OF RIGHTS. (PRO FEDS)

City of Boerne v. Flores (pp. 258-264) RFRA: THE COURT DECLARES THISACT UNCONSTITUTIONAL as it exceeds congresss power. this case rejects the

NATIONALIST view and holds that congress may not use its section 5 powers to expand

the scope of rights or to create new rights. Congresss section 5 powers may NOT create

new rights or expand the scope of rights, and congress is limited to laws that prevent or

remedy violations of rights recognized by the supreme court and these remedies must be

narrowly tailored as proportionate and congruent to the constitutional violation.

Congress has been given the power to enforce, not the power to determine what constitutes

a constitutional violation. Therefore, congress is limited to enacting laws that prevent orremedy violations of rights already recognized by the supreme court.

There must be a CONGRUENCE and PROPORTIONALITY between the injury to be

prevented or remedied and the means adopted to that end. This makes the court the

authoritative interpreter of the constitution (see Marbury v. Madison). If congress wants

to change the constitution (like giving itself more power under the 14 th amendment section

5, then it should go through the arduous amendment process. RFRA was unconstitutional

because it makes any law subject to challenge at any time by any individual who alleges a

substantial burden on his free exercise of religion. This remedy was not determined to be

congruent or proportional to the harm that the law enacted to address. As such, this was

not appropriate legislation that could be passed under the 5 of the 14 th amendment

pursuant to the courts Equal Protection Clause Enumerated power.

General Rule: the constitutions protection of rights is a floor; meaning that if the court

reads the constitution to not include a right, congress or the states may act to create and

protect that right.

Congresss Power to Authorize SuitsAgainst State Governments

INSERT The 14th Amendment (5) of the United StatesConstitution

INSERT The 11th Amendment of the United States ConstitutionFitzpatrick v. Bitzer(pp. 264-268) (held that Congress in acting pursuant to its 5powers of the 14th amendment may authorize suits against state governments. we think that


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congress may in determining what is appropriate legislation for the purposes of enforcing the

provisions of the 14th amendment, provide for private suits against states or state officials which

are constitutionally impermissible in other contexts. (MINORITY VIEW, PRO FEDS, PRO 14th

Amend)

Seminole Tribe of Florida v. Florida (pp. 268-273) (RACE) (1996)CONGRESSCAN ONLY AUTHORIZE SUITS AGAINST STATE GOVERNMENTS AND

OVERRIDE THE 11TH AMENDMENT WHEN IT ACTS PURSUANT TO SECTION 5

OF THE 14TH AMENDMENT So, even when the constitution vests in congress complete law

making authority over a particular area, the 11th amendment prevents congressional authorizationof suits by private parties against un-consenting states (MAJORITY VIEW, PRO STATE, PRO

11th Amend). STATE OFFICER CANNOT BE SUED TO ENFORCE A FEDERAL LAW

THAT CONTAINS A COMPREHENSIVE ENFORCEMENT MECHANISM. THE GUISE OF

SUING A STATE OFFICER CANNOT PREVAIL IF IT ESSENTIALLY HALES A STATE

INTO FEDERAL COURT THIS IS PRECLUDED BY THE 11TH AMENDMENT.

-majority determines that 5 is meant to limit states and that the 14th amendment modifies the

11th amendment.

-questions whether congress can authorize, at all, in federal statutes, the abrogation of statesovereign immunity in federal court. Or, should the supreme court protect state sovereignty?

INSERTSee, City of Boerne v. Flares (1997) the court limited the scope of congressspower under 5 of the 14th amendment. Congress only may provide remedies for rights

recognized by the courts and that congress may not create new rights or expand the scope of

rights. Any law must be NARROWLY tailored to solving constitutional violations, therefore it

must be proportionate and congruent to preventing and remedying the constitutional violation.Here RFRA was considered unconstitutional because it exceeded the scope of congresss power

under 5 of the 14th

amendment, as its purpose was not proportional and congruent to thereligious discrimination that the statute was enacted to remedy.

Following this case came:

1. Kimel (Age Discrim.) (2000) the law enacted exceeded congress 5 power and statescourt not be sued for age discrimination. Age discrimination receives only a rational

basis review, and the legislative record did not document a pattern of unconstitutional age

discrimination by state governments.

2. Garrett (Disability Discrim. Under ADA Title I) (2001) the law enacted exceededcongress 5 power, and states could not be sued for disability discrimination. Disability

discrimination only receives a rational review under the EPC. The legislative record didnot document unconstitutional disability discrimination by state governments that madethe law enacted proportionate or congruent to the problem the law was addressing.

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3. Hibbs (Gender discrim.) (2003) constitutional because it was within congress 5powers because it involved a gender discrimination claim that would receive heightened


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judicial scrutiny under the EPC.

4. Lane (Disability Discrim under ADA Title II) (2004) with regard to fundamental rights

with access to the courtsNARROW constitutional because it was within congress5 powers because it involved a claim that would receive heightened judicial scrutiny

under the EPC & DPC. Because there is a fundamental right of access to the courts, and

congress may enforce that right via 5 to ensure Due Process and Equal Protection underthe laws.

Kimel v. Florida Board of Regents (pp. 278-282) (AGE DISCRIMINATION)

STATES MAY DISCRIMINATE BASED ON AGE WITHOUT

OFFENDING THE 14TH AMENDMENT IF THE AGE CLASSIFICATION

IS RATIONALLY RELATED TO LEGITIMATE STATE INTERESTS.

THEREFORE THE BROAD PROHIBITION AGAISNT AGE DISCRIM

EXCEEDS CONGRESSS SCOPE OF 5 POWER. Only state courts will be

able to entertain age discrimination suits by their employers. the court holds thatthe ADEA is not appropriate legislation under 5 of the 14 th amendment because age is not asuspect classification under the equal protection clause, as older people have not been subjected

to a history of purposeful unequal treatment. Therefore, state that age discriminate can do so

without violating the 14th amendment unless the age classification is rationally related stateinterest. Race and Gender are special, as they perpetuate discrimination, whereas states could

have a legitimate role or interest in hiring elderly people.

The ADEA, therefore, is so out of proportion to a supposed remedial or preventative object thatit cannot be understood as responsive to, or designed to prevent unconstitutional behavior. There

is no evidence that congress had reason to believe that broad prophylactic legislation was

necessary in the private sector of age discrimination.

THE ADEAS ABROGATION OF THE STATES SOVEREIGN IMMUNITY IS INVALID

(PRO STATE; PRO 11th Amdnement)

Board of Trustees v. Garrett(pp. 282-289) (Disability discrimination)courtholds that such suits are barred by the 11th amendment. If congress truly understood that

there was a pattern of unconstitutional behavior by the states, they would have made mention in

the acts legislative findings. Legislative history in crafting the statute that looks to remedy adiscriminatory problem in light of the EPC, is importing in determining what is appropriate

legislation for the court to enforce 5 of the 14th amendment.

In order for individuals to recover money damages against the States, there must be a pattern of

discrimination by the states that violates the 14th amendment and the remedy imposed bycongress must be congruent and proportional to the targeted violation.

As such, since that is not present here, and the act is prophylactic, 5 cannot enlarge

constitutional authority to make a federal remedy to make a state susceptible to recovery byindividuals

Garrett (Age discrimination) and Kimel (Disability discrimination) comparison: in these cases


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there is no heightened standard applied. In order to impugn the constitutionality of state

discrimination against the disabled or the elderly, Congress must identify, not just the existence

of age or disability based state decisions, but a wide spread pattern of irrational reliance on suchcriteria. There was no such showing in these two cases. The laws were upheld as constitutional

as the discrimination was not wide spread enough.

Nevada Dept. of Human Resources v. Hibbs (pp. 289-295) statutes were

within the scope of 5 powers because they concerned claims that would

receive heightened judicial scrutiny basically, congress has a much broaderauthority to legislate if it is a type of discrimination or a right that receives

heightened scrutiny. But if it is a type of discrimination or a claim that

receives only rational basis review, congresss ability to legislate under 5 is

very narrow.

employees of NV may recover money damages in the event of the states failure to comply with

the family case provision of the act.

1. THERE MUST SHOW A PATTERN OF UNCONSTITUTIONAL DISCRIMINATION

2. MUST SHOW THAT THE REMEDY OFFERED IS CONGRUENT ANDPROPORTIONAL TO THE HARM CAUSED.

Tennessee v. Lane (pp. 295-302) statutes were within the scope of 5

powers because they concerned claims that would receive heightened judicial

scrutiny basically, congress has a much broader authority to legislate if it isa type of discrimination or a right that receives heightened scrutiny. But if it isa type of discrimination or a claim that receives only rational basis review,

congresss ability to legislate under 5 is very narrow.

Alden v. Maine (pp. 303-314) Holds that congress cannot authorize suits against stategovernemnts in state court. State govts may not be sued in state court, even on federal claimswithout their consent. Because ME has not consented to suits for overtime pay and liquidated

damages under FLSA, the court affirms the judgment of the lower court and sustains dismissal of

the suit against the state. SOVEREIGN IMMUNITY BARS SUITS AGAINST STATE

GOVERNMENTS IN STATE COURT WITHOUT THEIR CONSENT. (STATES CANNOT

BE SUED IN STATE COURT WITHOUT CONSENT! UPHELD FOR THE STATES)

UNDER THE 11TH AMENDMENT THERE MUST BE A CLEAR STATEMENT

TO ABROGATE STATES SOVERIGN IMMUNITY IN THE ACTUAL

STATUTE ITSELF.

14TH AMENDMENT:


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KATZENBACH: CONGRESS HAS BROAD POWER UNDER 5

BORNE: CONGRUENCE AND PROPORTIONALITY TEST THAT WAS

APPLIED IN KIMEL AND GIBBS:

1. WHEN LOOKING AT TEST, YOU MUST LOOK AT EVIDENCE

OFFERED BY CONGRESS

2. SCRUTINY OF THE COURTS:

a. HEIGHTENED: NEED TO SHOW. GARRETT SAYS THAT

ENFORCEMENT POWER IS APPLIED NARROWLY: LEWAY

IS GIVEN TO ISSUES THAT CLEARLY FALL UNDER STRICT

SCRUTINY.

b. RATIONAL BASIS: ONLY FOR SUBSTANTIVE PORTION OF

THE 14TH AMENDMENT.

3. 2 STREAMS:

a. THE FIRST IS: HIBBS/LANE

b. THE SECOND IS: KIMEL/GARRETT.

Executive Power CasesYoungstown Sheet & Tube Co. v. Sawyer(See other sheet) (Jacksonsconcurrcence and the tripartite approach)

Nixon v. United States (pp. 327-333) : the right to presidential confidentiality isstrong, but when weighed against the interests of criminal justice, justice prevails. Withoutaccess to facts specific to a criminal prosecution, justice is frustrated. The generalized assertion

of privilege must yield to the demonstrated, specific need for evidence in a pending

criminal trial.

Cheney v. U.S. District Court(pp. 333-334) The Sup Ct. did not address executiveprivilege and remanded. But it DISTINGUISHED NIXON. -Nixon did not satisfy exec privelege

in a Criminal case, regarding confidentiality of presidential conversations. And, the need for

information in a criminal case is much weightier.-this is a civil case, and does not share theurgency or significance of a criminal subpoena. The stickiness and precariousness of the

weighing process undertaken by the courts in an executive privilege case should be avoided at all

costs as it questions the separation of powers.

INSERT Article I, Section 7 of the United States Constitution


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Clinton v. City of New York(pp. 334-340) The president was granted the power toline item veto by congress. This allowed him to cancel particular parts of bills while allowing

the rest to go into effect. THE PRESIDENT IS VIOLATING FORMALISM THEORY. The

constitution is silent on this but if there is to be a new procedure in which the president plays adifferent role in the law making process, the constitution must be amended pursuant to the

amendment procedures. LINE ITEM VETO ACT IS UNCONSTITUTIONAL.

INS v. Chadha Unless enumerated, in a legislative action, bicameral approval andpresidential presentation is required to pass a law constitutionally. The presentation clause: all

legislation must be presented to the president and congress before any law is passed pursuant

to Art I. 7. This acts as a check to prevent oppressive law making. Bicameralism: the law must

be voted on an passed by a majority vote in both houses. By doing this the interests of both themajority and minority for larger and smaller states will be considered.

Appointment & Removal Powers Cases

Morrison v. Olson (pp. 355-361) II (pp. 367-369)Court holds that the Ethics inGovernment Act of 1978 does not interfere with the appointments clause of the constitution anddoes not interfere with the presidents power in violation of separation of powers.

Myers v. United States (pp. 361-362) SINCE REMOVAL IS NOT MENTIONEDIN ART. 1 THEN CONGRESS IS NOT INTENDED TO REMOVE. ONLY THE

PRESIDNET CAN REMOVE BECAUSE THE POWER TO APPOINT AND REMOVE

IS INCIDENTAL TO APPOINTMENT

Humphreys Executor v. United States (pp. 363-364) Even though the FTCallows for the president to remove a member of the commission, congress did not intend this, ascongress explicitly set a term limit that was supposed to act independently of the presidents

discretion.

Wiener v. United States (pp. 364-366) upholds Humphreys Ex. Thecommission was to operate independently of congress and the president and had a set term limit.

It must be inferred that congress set this limit and did not want the presidents authority to

infringe on the decision-making of the commission. They were to act independently.

Bowsher v. Synar(pp. 366-367) ONLY WHEN THE ACT IS EXECUTIVE INNATURE CAN CONGRESS ATTACH STRINGS UNLESS IT PREVENTS THE PRESIDENT

FROM DOING HIS JOB. Court says that sure, in some circumstances where the president must

take care he can remove some executive officials in order to complete his constitutional duty.But in other circumstances, when officials duties are quasi-legislative or quasi-judicial the

president cannot exercise complete control over their abilities to be removable at will.


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Separation of Powers and Foreign PolicyCases

United States v. Curtiss-Wright Export Corp. (pp. 369-373) FUNCTIONAL

APPROACH APPLIED HERE. VERY EXPANSIVE OF PRESIDENTIAL AUTHORITYIN FOREIGN POLICY. He is allowed to have confidential information and secrecy with

foreign affairs. TAKEAWAYS: -HE IS THE SOLE ORGAN AND DOES NOT REQUIRE ANACT OF CONGRESS TO ACT IN THE FIELD OF INTERNATIONAL OPINIONS; -HE

ENJOYS A LOT OF INHERENT AUTHORITY;-HIS POWER IS PLENARY ANDEXCLUSIVE.

-The federal government can exercise no powers except those specifically enumerated in the

constitution, and such implied powers as are necessary and proper to carry into effect the

enumerated power, is categorically true only in respect of our internal affairs.

Dames & Moore v. Regan EXECUTIVE AGREEMENTS WITH CONGRESSIONALACQUIESENCE IS OKAY. -JACKSONS YOUNGSTOWN OPINION IS THE

AUTHORATIVE FRAMEWORK FOR EXECUTIVE ORDERS. Executive agreements arecommon from a functional approach.

Presidential Power and the War onTerror

Hamdi v. Rumsfeld(pp. 381-393) this is Youngstown at work. This falls under

Jackson category 1, as congress approved the presidents acts in the AUMF!!

The Bybee Memo (Blackboard)

-Arguments for the president; for the BYBEE memo:

-commander in chief

-AUMF trumps this in Youngstown article 1.

-youngstown 2 as congress has never restricted detention.

-also frankfurters argument re: acquiscences is okay.

-unitary executive in curtis-wright congres cannot

-if pres exempted then anyone under the executive is also exempted from sanction

-this is non justiciable pursuant to political question defer to the president

-violates the separation of powers as congress cannot tell the president to act in military setting


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Arguments against the BYBEE memo:

-youngstown Jackson 3 congress explicitly acts against the statute on torture.

-congress declares war (structural argument)

-look at the welfare clause of the constitution in article 1.

-EMERGENCY is not in our constitution.

-we need to stay close to our pre-commitments vs. the constitution is not a suicide pact.

Boumediene v. Bush (393-411)

Pursuant to the SUSPENSION CLAUSE in Art.1, there is not invasion or rebellion.

-the fact that the executive is taking away the courts judicial power under Art. III

-Political Question? Argument that the issue is not justiciable.

-Gitmo is outside of the U.S. fed court jurisdiction

-Youngstown approach for govt: part 1 of congresss approval for the president to deny HC todetainied based on the MCA.

-congress stands up to the executive

-questions regarding the combatants, classified evidence, process go unanswered.

Prosecution and Impeachment Cases

INSERT Article I, Section 3 of the ConstitutionNixon v. Fitzgerald (pp. 354-357) absolute immunity from civil suits for apresident for all official action taken while in office. (5-4 split). Functional argument: the

court by entertaining this infringes on the core executive function as written in the

constitution.

Clinton v. Jones (pp. 357-360) while yes, its a unique office, it wont take up toomuch of his time, and looking at history, (this being the third suit involving a president), this

wouldnt be an over burdensome precedent to make.

Materials on Impeachment (pp. 360-364) Art. 1I 4: The P, VP and all civilofficers of the U.S. will be removed from office on impeachment for and conviction of treason,

bribery and other high crimes and misdemeaoners.

Art. 1 2: The HOR has the sole power to impeach. Then the trial is held by Senate


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Art. 1 3: The senate has the sole power to try impeachments and no person will be convicted

without the concurrence of 2 thirds of the members present.

Issues:

1. What are high crimes and misdemeanors?

2. What procedures must be followed when there is an impeachment and removalproceeding?

3. Is the presidents actions in some regards a political question and non justiciable by thecourt?

Dormant Commerce Clause Cases

Philadelphia v. New Jersey(pp. 464-467) facially discriminatory lawtherefore its per se invalid. The legitimate goal cannot be achieved by illegitimate meansof isolating the State from the national economy. The court therefore holds that NJ may not close

its boarders to other states who seek to dump its garbage in state because it cannot isolate itself

from an interstate problem. (PROTECTIONISM DCC VIOLATION FOUND)

C & A Carbone v. Clarkstown (467-471)unconstitutional, as the ordinance is afinancing measure. Meaning its discriminatory for the purpose of protectionism. The state

cannot overcome burden of per se invalidity by proving that the benefits to local

governments does not exceed the minor impact on ISC. - DEALT WITH PRIVATE

CORPS. (PROTECTIONISM DCC VIOLATION FOUND)

United Haulers v. Oneida Hermicker(pp. 471-478) DEALS WITH STATE

CREATED PUBLIC BENEFIT CORPORATIONS. The ordinances are upheld asconstitutional, as the balancing test is applied and found that any incidental burden that the

ordinance has on interstate commerce does not outweigh the benefits they confer on the citizensof the counties. If the legislative means are themselves discriminatory, then regardless of

how legit and non-protectionist the underlying legislative goals may be, the legislation is

subject to strict scrutiny. Only discriminatory laws will be upheld if there is no other way toachieve goals other than through non-discriminatory means. This law should be subject to strict

scrutiny and should be constitutional, even though it has an incidental discriminatory burden

imposed by the state on ISC. (NO PROTECTIONISM UPHELD FOR STATE)

Hunt v. Washington State Apple Advertising Commission (pp. 479-482)

Sets the 2 part burdens test under strict scrutiny for discriminatory laws that affect ISC.COURT DETECTS PROTECTIONISM MOTIVE (SMOKE OUT THE ISSUE). the

burden falls on the state of NC to justify in terms of the (1) local benefits flowing from thestatute and (2) the unavailability of nondiscriminatory alternatives adequate to preserve the local

interests at stake. (PROTECTIONISM DCC VIOLATION FOUND)

Exxon Corp. v. Governor of Maryland(pp. 482-485) Court finds that because theact does not discriminate against other retails interstate, that it does not discriminate against


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interstate commerce. This case is distinguishable fromHuntin that the statute inHuntraised the

cost of doing business for outof-state dealers and favored the in-state dealer in the local

Market. This is not the case here, however. THIS IS A LAW OF GENERAL APPLICABILITY

& ITS FACIALLY NEUTRAL. (NO PROTECTIONISM UPHELD FOR STATE)

West Lynn Creamery v. Healy(pp. 485-487)

In response to dairy farmers beingundercut by out of state dealers in state, the governor instituted the tax to support the local dairyfarmers. This is protectionist and has a discriminatory AFFECT & PURPOSE; its notFACIALLY discriminatory because everyone is paying tax on all milk everywhere.

(PROTECTIONISM DCC VIOLATION FOUND)

Minnesota v. Clover Leaf Creamery(pp. 487-489) The court finds that the MNlaw discriminates against every plastic producer, both in state and out of state, therefore the court

must look to see if the act is clearly excessive in relation to the putative local benefits. The

court finds that the incidental effect on ISC is not clearly excessive to the local benefits and findsthe law constitutional. Plastic was not all together considered prohibited. (NO

PROTECTIONISM UPHELD FOR STATE)

Dean Milk Co. v. City of Madison (pp. 489-490) This is unconstitutional, as thisprevents milk from other states to be sold in the town. The town says its for its health, but the

milk sold by appellant is approved by the USPHS. By allowing the towns standards to be the

only standard (instead of U.S.s), this prohibits sales by other states and is against the commerceclause as it discriminates against ISC, and the town cannot overcome the strict scrutiny standard

imposed on it for discriminatory standards. (PROTECTIONISM DCC VIOLATION

FOUND)

Maine v. Taylor & United States (pp. 490-492) this is the ONLY case where thecourt finds that a statute has a discriminatory affect and purpose, but one that surmounts

the burden of essentially the Phila v. NJ Test and the court holds that its constitutionalanyway. Because the law is discriminatory and affects ISC, the state bears the burden of

proving that the law:

1. serves a legitimate local purpose;

2. the purpose could not be served by available nondiscriminatory means.

The act is constitutional because MEs parasite fear is legitimate to protect its waters and there is

no way of testing for parasites from all out of state fishes because its basically impossible. Thestate satisfied the burdens here so the act is constitutional even though it affects ISC.

PROTECTIONISM FOUND BUT FOUND TO BE LEGITIMATE AND THE COURT

UPHOLDS FOR THE STATE.

Pike v. Bruce Church Inc. (pp. 493-494) where the state regulates even-handedlyto effectuate a legit local interest, and its effects on ISC are incidental, it will be upheld

unless the burden imposed on ISC is clearly excessive in relation to putative local interests.

The extent of the burden will be tolerated if the nature of the local interests involved is

great and if the interest can be promoted with a lesser impact (REASONABLE

ALTERNATIVE) on ISC. (PROTECTIONISM DCC VIOLATION FOUND)


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Bibb v.Navajo Freight Lines (pp. 495-496) Mudflapp case that was wrong.the law is unconstitutional as the alleged safety measures do not outweighthe burden on interstate commerce. The court affirms the injunction on the

plaintiff truckers behalf. (PROTECTIONISM DCC VIOLATION FOUND)

Kassel v. Consolidated Freightways Corp. (pp. 497-500)

RULE: a law isunconstitutional if it regulates the conduct of out-of-state businesses. If thepractical inquiry is whether the law controls beyond the boundaries of the

state, then the law is unconstitutional. DCC Summary: state laws thatdiscriminate against other state law are unconstitutional. If the law is notdiscriminatory then the court weighs its burdens on ISC against its benefits.discriminatory purpose, as the statute is neutral with discriminatory

affects on out-of-staters. (PROTECTIONISM DCC VIOLATION FOUND)

Exceptions to the Dormant CommerceClause

Reeves, Inc. v. William Stake (pp. 503-506) Market ParticipantException. Cement shortage case. Because the state is acting like aparticipant in the market by actually doing the selling like a privateorganization, and its not passing legislation that discriminated on other

states, it is excepted from the DCC violation. (NO PROTECTIONISM UPHELDFOR STATE BECAUSE IT MET THE MARKET PARTICIPANT EXCEPTION TO THE

DCC)

South-Central Timber v. Commissioner(pp. 506-509) The state many notavail itself of the market participant doctrine to immunize its

downstream regulation of the timber processing market in which it isnot a participant. [this, in essence, exceeds AKs participation in the market.

(PROTECTIONISM DCC VIOLATION FOUND)

State Action Doctrine

INSERT

The 13th

and 14th

Amendments of the United States

The Civil Rights Cases (pp. 548-552) congress doesnt have 5 powerto regulate private conduct; but they can regulate private conductpursuant to an enumerated Article 1 power under the CommerceClause or under a comparable power. these cases held that federalconstitutional rights do not govern individual behavior and furthermore, thatcongress lacks the authority to apply them to private conduct. Therefore,


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structuring the legal relationships of private citizens for the states and not

for the national government. (UNCONSTITUTIONAL AGAINST FEDS).

Marsh v. Alabama (pp. 552-555) is private property used for a publicpurpose? If so, then it meets the public function exception and is

subject to the constitution. LARGER CONSIDERATION: THE TOWN APART OF THE LARGER NATIONAL ECONOMY. Because there is adeprivation of liberty, the state cannot allow a corporation to restrictpeoples fundamental liberties and restrain them pursuant to a state statute.This is unconstitutional, and the town is subject to state of AL law and U.S.law. (HELD FOR FEDS)

Jackson v. Metropolitan Edison (pp. 555-558) has the activity beentraditionally, exclusively done by the government? If so, then itmeets the public function exception. If not, then its a privatefunction and is untouchable under the reaches of the constitution.-Yes, the corporation is providing a service in the public interest but it is aprivate organization, and has disconnected service in accordance with thelaws of the commission. There is nothing sufficient to connect the state withthe companys actions so as to make the companys actions attributable tothe state for purposes of fitting within the exception of the SAD under the14th amendment.

Evans v. Newton (pp. 560-562) The park is considered a Public functionhere because it is maintained by the municipality. If the park is grantedmunicipal maintenance then it is not private. Here the park is municipal innature and serves the community. The park is as vital to the community justas a police or fire department. Therefore, the 14th amendment of theconstitution applies here under the public function exception of the SAD.

Lloyd v. Tanner(pp. 564-565) The court holds that on private property, theconstitutions preservation of 1st amendment and 14th amendment rights arenot enforceable per se. Because the distribution in this case was on privateproperty and not on the easily accessible public streets, the distribution ofhandbills can be properly prohibited pursuant to the owners request withoutbeing termed as a public function simply because it is a large piece ofproperty that attracts a large public crowd.

Shelley v. Kramer(pp. 567-570) courts are judicial officials and are part of

the state and therefore the amendment applies to them. By using the courtscoercive power to deny the petitioners their rights, is unconstitutionalbecause the government cannot deny people equal protection under the law.Notes: shellyis controversial because if any decision by a state courtrepresents state action, then ultimately all private actions must comply withthe constitution. Anything can be considered as a state action. MAKESPECIAL NOTE: THE COURT EXPANDS STATE ACTION DOCTRINEWHEN PRIVATE RACE DISCRIMINATION IS INVOLVED. (HELD AGAINST


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THE CONDUCT THAT WAS DEEMED S.A.D.)

Lugar v. Edmonson (pp. 570-572) Courts will consider 2 things:

1. the deprivation must be caused by the exercise of some rightor privilege created by the state or by a rule of conduct

imposed by the state of by a person whom the state isresponsible

2. the party charged with the deprivation must be a person whomay fairly be said to be a state actor.

Burton v. Wilmington Parking Authority(pp. 575-577) when the stateleases property to a private tenant, the private tenant must comply with theprovisions of the 14th amendment as it is acting on government property.

Moose Lodge v. Irvis (pp. 577-580) (DISTINGUISHABLE FROM BURTON)Because the club is private and does not hold itself out to be public at all and

because it also is on private property, the benefit the state gives it is of noconsequence, and the court cannot attribute its conduct with that of thestate to subject it to SAD under the 14th amendment. The club is, therefore,constitutional. STATE LICENSES TO BUSINESSES THAT PRIVATELYDISCRIMINATE ARE NOT CONSIDERED UNDER STATE ACTION DOCTRINETHEREFORE SUBSCRIBING THE PRIVATE ORGAINIZATION TO THECONSTITUTION.

Norwood v. Harrison (pp. 580-582) the court holds that the state isviolating the constitution by funding schools that engage in discriminatorypractices and the states facilitation is barred by the constitution. The state

must steer clear of private RACE discriminatory practices. This is mostcertainly UNCONSTITUTIONAL, as the state action doctrine applies andtherefore the EPC of the constitution is imposed on private organizations.MAKE SPECIAL NOTE: THE COURT EXPANDS STATE ACTIONDOCTRINE WHEN PRIVATE RACE DISCRIMINATION IS INVOLVED.

Rendell-Baker v. Kohn (pp. 582-585) (DISTINGUISHABLE FROM NORWOODcould be because racial discrimination was not taking place.hmmm) Simplybecause a private entity performs a function which serves the public doesnot make its acts state action, even though it is funded and regulated by thestate. The schools funding and regulation does not amount to being a public

function. THIS CASE SHUTS DOWN THE PUBLIC FUNCTION ARGUMENT ANDSHOWS THAT THE ENTANGLEMENT HERE IS NOT SUBSTANTIAL.

Other topics that should be studied

Article I McCulloh v. Maryland broad interpretation of the necessary


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and proper clause. MCCULLOGH TAKEAWAYS: Court acknowledged size offederal power. Broad interpretation of NECESSARY AND PROPER CLAUSE. Limits on

STATE INTERFERENCE WITH FEDERAL POWER

Article II Advisory Opinions Justiciability Doctrines:

o Standing Ripeness,

o Mootness, and

o Political Question DoctrineGoldwater v. Carter(breaking

treaty was non justiciable by the courts and could not arise under

the cases and controversies clause of Article III). This matter isa political question, and this was a dispute between the politicalbranches. The constitution is silent on the rescission of treatiesand the matter is a dispute between the branches that dies notconcern the courts.

Preemption

Privileges & Immunities Clause. Applies only to U.S. citizens,not corporations or aliens.

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