con law devlin 2009

8/12/2019 Con Law Devlin 2009

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Constitutional Law I

I. Introduction: To the Course and to United States Constitutional History

a. What Constitutions are and their function

i. They are about power

ii. Creates the mechanisms/organs of goernment

iii. !llocates power among the organs of goernment and empowers

these organs

i. "oernments can do anything unless constrained. So a

constitution allocates powers# a distribution function.

. !llocate power among the following:

$. !mong organs of goernment %creates and empowers &

separation of powers'

(. )etween goernment and people %rights protection'. This

restrains goernmental power.

*. )etween central goernment and states %federalism in the

U.S.'

i. +eta,issue: Who interprets

b. )ac-ground U.S. history

i. The nglish colonies in the $th,$0th century.

$. Some were founded as proprietary colonies# some were

corporations of merchants# some founded by religious

groups# some founded by con1uest

(. )y the beginning of the $0th century# all the colonies wereunder the Crown to some e2tent. The nglish -ing

appointed goernors

*. The colonies had limited self,goernment because the

geographical distance made some self goernment

$



necessary. 3et )ritain wanted to retain most of the control.

ach indiidual colony had a relationship with )ritain

4. Colonial Tensions

a. Initially# the colonies were happy to be under )ritishrule

i. 5rotection from foreign enemies was one

reason. The 6rench# allied with natie

!mericans# were a threat within the continent.

)ut in $78# the nglish won the 6rench and

Indian war# putting an end to the 6rench threat

in !merica. Therefore# the colonies did not

need protection by the nglish from the

6rench.

b. !fter $78# there was a steady deterioration of

relations between the colonies and mother ngland.

ii. Independence

$. In $4# there was the 6irst Continental Congress

a. Up until that point# there had been little cooperation

among the colonies. !t this Congress# delegates

from the $* colonies came to meet about the problem

of )ritain

b. They came up with a declaration of the rights of

colonists and issued a call for a Second Continental

Congress# which met in $8 and actually had

delegates from all of the colonies.

c. The colonists that met were self,appointed

reolutionaries with no legal authority

(. In $7# there was the Second Continental Congress

a. The Congress in 9uly $7 responded to war with the

eclaration of Independence

b. Congress agreed that the colonists would fight

against )ritish rule

(



i. States Surrender Certain Bights

$. !rticle >I

a. The ability to maintain armies e2cept for defense# the

right to declare war# the right to enter into treaties# etc

b. The states gae these rights to the new Continental

Congress.

(. !rticle I>

a. ! series of agreements among the indiidual states to

each other so they can more easily lie together.

b. ! certain amount of free trade# giing full faith and

credit to each?s Audicial decisions# etc.

. )ranches of 6ederal "oernment Created

$. The !rticles only created one organ of goernment# the

Congress.

a. !rticle I declares the powers granted to Congress

i. These include the power to declare war# enter

into treaties# regulating state ersus state

disputes.

ii. There were conflicts among the states that

pree2isted the Beolution among the colonies

regarding boundaries. There was a fear that

the )ritish could use this disunity among the

colonies to turn them against each other.

(. The Committee of the States was a 1uasi,e2ecutie branch

that managed the general affairs of the U.S. during the time

Congress was not in session

a. +anagement of day to day affairs.

b. Consisted of one delegate from each state. ! sort of

plural e2ecutie

*. Do federal Audiciary was created# so the indiidual state

courts had to handle all matters.

4



4. There was a proision for an arbitration panel to decide on

matters of international law.

i. 5owers and Bights

$. 5owers

a. +any of the federal powers enumerated were powers

necessary to unify the seeral states %common

system of weights and measures# postal serice#

roads# coinage# etc.'

b. 5owers granted to states

i. Do federal power to raise money was

enumerated. The indiidual states had the

responsibility to ta2.

ii. !lso the state had the responsibility to raise

troops.

c. Do general power to regulate economic affairs or

trade.

d. So the powers of the central goernment were fairly

limited under the !rticles.

(. Bights

a. Dot much is said about the rights of citi;ens in the

document

i. +ost of the state constitutions had declarations

of rights# so it was e2pected that the states

would protect indiidual citi;ens? rights

ii. This goernment did not operate based on

indiiduals at allEcould not directly raise ta2es#

could not raise a militia# etc.

ii. Strengths/Wea-nesses

$. Strength: This is the goernment that created a new nation

and fought the biggest military in the world.

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content of state powers are in the

absence of Constitutional te2t.

iii. !rticle I# Section 0 lists Congressional powers

$. There are some things new from the!rticles: the power to create tribunals#

the ability to ta2 indiiduals rather than

as-ing the states for contributions#

authority to regulate both international

and interstate commerce.

(. The Decessary and 5roper Clause

a. Dot a freestanding authori;ation

for Congress to pass any law. It

is an authori;ation for Congress

to do things which might not be

e2pressly listed.

b. Under the !rticles# Congress did

not hae any implied powers at

allG Whereas Dand5 Clause

allows Congress to pass other

laws necessary to carry out

powers in the Constitution

i. Supremacy Clause ma-es federal law trump

state law

. Congressmen are made a legislature for the

nation# not Aust ambassadors from the states.

i. Soereignty

$. Under the !rticles# the states were

soereign it was unclear if the federal

got. was.

(. Under the Constitution# the states are

still soereign# but E Soereignty

conceied as not unitary



(. It is immediately clear that this

goernment has legislatie powers. !FF

legislatie powers are ested in the

Congress. This implies that only the

legislatie branch may e2ercise

legislatie powers.

*. )icameral legislature & ( houses

a. @ne house is more

representatie of <the people=

and was intended to trac-

changes in popular sentiment

ery closely %short ( year terms'.

5eople were constantly able to

change the ma-eup of theHouse. The House represents

the will of indiiduals.

b. The Senators were not elected#

but appointed under the original

Constitution. This changed with

!mendment $8# ma-ing them

elected

4. ach house determines the rules of itsown proceedings and is the ultimate

authority oer its election and in

disciplining its members. This is a

protection of the independence of each

house from outside influence.

iii. 2ecutie )ranch

$. The e2ecutie branch is much different

from the !rticles

a. The nature of the e2ecutie is

different

b. Under the !rticles# the e2ecutie

power was in a committee# but

under the Constitution the powers



are ested in one man# the

5resident. The unitary e2ecutie.

c. Howeer# the 5resident may

deputi;e other indiiduals to be

agents on his behalf# carrying oute2ecutie functions

d. The concept is that a single

indiidual is more efficient than a

committee ma-ing decisions.

!dditionally# there is a reduced

diffusion of responsibility. If

things go bad# we -now who to

blame# the 5resident.

(. !rticle II Section ( is in ( paragraphs.

a. The first paragraph lists powers

5resident can use without any

other input.

b. Second paragraph lists powers

that he must authori;e in

conAunction with Senate approal.

This paragraph also constitutes

not merely his powers# but his

duties.

i. 9udiciary )ranch %!rticle III'

. Chec-s and )alances

$. Separation of powers and system of

chec-s and balances coe2ist under the

Constitution & they must be reconciled

(. Historical @rigin

a. The notion of chec-s and

balances comes from the )ritish

goernment

$J



i. +onarchy# house of

commons and house of

lords. There was oerlap

among the * branches in

terms of functions

performed

ii. 6or e2ample# the -ing had

some legislatie power

and set up courts of

chancery. )ut the mi2ed

goernment wor-ed

because of chec-s and

balances

iii. 6or e2ample# Commonscould legislate# but could

not legislate alone. King

could appoint Audges# but

Commons had some input

as well.

*. 2amples in U.S. Constitution

a. 5resident can eto legislation.

5resident can call Congress intosession. He can propose

legislation.

b. Congress can impeach the

5resident and Congress has to

appropriate money for

5resident?s use. !lso the Senate

has to consent to 5residential

treaties and appointments.

Congress has control oer the

federal subAect matter Aurisdiction

of federal courts

c. The Audiciary has the power of

Audicial reiew to nullify

unconstitutional laws.

$$



$. The people get to ote for their

representaties to represent their rights

(. That political chec- is still there. So

what does adding a )ill of Bights

actually addL

b. It gies a second aenue of enforcing these rights

i. !lternatie to enforcing rights through political

processes

ii. 5olitical processes tend to faor large numbers

of people. If the goernment abuses a small

number of people# it is harder to use the

political process to enforce indiidual rights

iii. !s +odified by the Beconstruction !mendments# $078,$0J

$. $*th !mendment abolished slaery

(. $4th dealt with pent,up issues %confederate war debts# etc.'

a. Section $?s modern significance

i. Coneyed citi;enship to e2,slaes

ii. !lso# this section establishes constitutional

means for people to go to the federal

authorities if a state iolates a person?s rights

$. 5rior to this amendment# the person

would hae to go to the state to address

a iolation

*. The language is that <no person= shall be denied due

process. The protection is not Aust of citi;ens# but of all

peopleEery broad

i. !s Understood Today

$. !fter Beconstruction# the Constitution has eoled more

based upon Audicial interpretation

(. In $*Js there was the Dew eal. Though there was no

change in te2t of the Constitution# the S.Ct. interpreted the

$*



Constitution differently# giing the federal got. more power

to regulate certain affairs.

*. In $8Js & $Js# there was an e2pansion of protection to

indiidual rights. !gain based upon S.Ct. interpretation

4. Important 5oints:

a. The te2t does not Aust gie phrases# but also a

conte2t. The pieces of the document fit together and

are interrelated.

b. The Constitution is an eoling document# changing

oer time. @ur interpretation of it changes. The ne2t

chun- of discussion will# therefore# be who interprets

the Constitution.

II. 9udicial Beiew of Constitutionality: 5ower and Constraints

a. The @rigin of the 5ower of 9udicial Beiew

i. Beiew of the Constitutionality of the !cts of @ther )ranches of the

6ederal "oernment

1. Marbury v. Madison

a. The notion that legislatures are not omnipotent and

the Audiciary can reiew their acts

i. The Court can declare a legislature?s action so

contrary to Austice that the legislatie act is

undone.

$. This notion was not un-nown but was

controersial prior to this case.

(. There were some nglish precedents

for this notion

*. This power was not e2plicitly stated in

the Constitution because there was

disagreement oer it.

ii. Controersy

$4



$. What gies laws legitimacy is the will of

the people in electing the

representaties

(. If the unelected Audges get to oerturn

the legislatie enactments# then the willof the people is iolated.

b. Case )ac-ground

i. The federalists made a last,minute effort

before leaing office to pac- the courts with

federalists through appointing Audges.

$. @utgoing 5res. !dams made a number

of appointments and signed the

commissions

(. 9ohn +arshall?s brother failed to delier

a number of the signed and sealed

commissions. They were left on the

des- of the new Sect. of State# 9ames

+adison.

*. 9efferson tells +adison not to delier the

commissions

ii. +arbury did not hae his commission deliered

to him# so he brought suit for a writ of

mandamus. The case was brought in the

Supreme Court

$. 9ustice +arshall had a conflict of

interest he had been the Sect. of State

under the preious administration and

was now on the Court deciding if the

commissions should be deliered.

(. There are some who hae suggested

that +arshall should hae recused

himself because of the conflict of

interest. )ut he could not be re1uired to

recuse himself.

$8



c. The Court?s <* issues=

i. Whether +arbury has the right to the

commission

$. It is strange that the court addressedthis issue first because the ultimate

conclusion was that the court lac-ed

subAect matter Aurisdiction to hear the

case

(. Through the court deciding the case on

Constitutional grounds# the issue

becomes finally decided.

*. Court answer the 1uestion in the

affirmatie

a. The Court says that +arbury has

a ested right to the commission

because the document was

signed and sealed.

b. This was contrary to the common

law rule that re1uired the

commission to be deliered for

the right to be ested.

4. Court also mentions that the term of

Austice of the peace is fi2ed at 8 years.

!llegedly this is an irreocable 8 year

appointment

ii. Whether +arbury has a remedy afforded by

law

$. ery citi;en has the right to claim the

protection of law wheneer a right hasbeen iolated

(. Court answers the 1uestion in the

affirmatie

$7



*. ! counterargument is that it was not a

legal right that was iolated# but that this

is a political issue and the Court does

not hae the right to address this issue

4. Court says that the deliery of thecommission is something that the

5resident has a legal duty to perform

%ministerial duty as opposed to

discretionary decision'

a. If the act is a discretionary

decision# the 5resident cannot be

forced to delier the commission

b. If +arbury?s harm had resultedfrom failure to perform a

discretionary act# there would be

no remedy in court

8. The ultimate answer to the 1uestion of

whether the law affords remedies for

wrongs to indiiduals is <usually# but not

always=

iii. Whether mandamus from the Supreme Court

is the appropriate legal remedy

$. Whether mandamus is appropriate

remedy

a. 9udiciary !ct of $0

i. The same people who

wrote the Constitution

were in Congress to pass

this act

ii. !llowed Supreme Court to

issue writs of mandamus

in cases <warranted by the

principles and usages of

law Mthe common law of

nglandN=.

$



b. These common law re1uirements

were:

i. irected to appropriate

goernmental official

ii. 5erson see-ing writ must

hae no other aailable

remedy

iii. +atter of ministerial duty

and not discretionary

choice.

c. The re1uirements are met# so the

mandamus is the appropriate

remedy

d. Ouestion answered in the

affirmatie

(. Whether the Court can issue the

mandamus is a separate issue# really

d. Whether mandamus can issue from Supreme Court

i. Statutory !uthori;ation

$. 3es# there is statutory authori;ation for

the Court to e2ercise original

Aurisdiction# the court says.

(. Howeer# the 9udiciary !ct of $0

gies the Court appellate# not original#

Aurisdiction oer writs of mandamus#

according to the plain language

a. Donetheless the Court interprets

the statute as authori;ing original

Aurisdiction to issue writs of

mandamus

b. This interpretation is 1uestionable

ii. Constitutional !uthori;ation

$0



$. The Court says since cases oer which

the Court has original Aurisdiction are

enumerated in !rticle III Section ( of the

Constitution# this is an e2haustie list. It

is a ceiling# rather than a floor.

a. There may be arguments that the

list is actually illustratie

b. Howeer# the te2t of the

Constitution seems to indicate

the list of original Aurisdiction

cases is e2haustie

(. Therefore# the Court says that the

portion of the 9udiciary !ct of $0giing original Aurisdiction oer issuing

writs of mandamus is unconstitutional

a. This is an interesting conclusion#

in that the legislature had seen

the !ct as constitutional when it

passed the act

b. The 1uestion in this case

becomes who has the power to

determine the constitutionality of

a legislatie !ct

c. The Court asserts that it has the

constitutional power to determine

a legislatie act unconstitutional

iii. !rguments that +arshall ma-es that the Court

has the power to refuse to enforce legislation

that it deems unconstitutional

$. The framers wrote down limits on the

powers of Congress & topics they could

legislate on

a. The framers would not hae

written them down if they were

not intended to be limited

$



b. )ut this argument may not be

conincing & the limits may hae

been guidelines to future

Congresses# rather than

coneyance of authority to the

courts to enforce the limits

c. +aybe the limits on the Congress

were meant to be self,enforced#

by the Congress upon itself

(. Dature of the Audicial function

a. To determine what the law is

b. 9udicial interpretation

c. !n argument that <we can?t help

but interpret=

i. Hae to loo- into the

meaning of statutes to

apply the statute to the

case in front of the Court

ii. !nd if there is an

inconsistency between

legislation and the

Constitution# the Court

must enforce the

Constitution

*. Te2tual argument

a. The Constitution says that the

Court gets to hear cases arising

under the Constitution

i. This has to mean that the

Court was empowered to

decide whether or not

legislation is Constitutional

(J



b. 9udges ta-e an oath to uphold

the Constitution

i. The counterargument is

that the legislature and the

e2ecutie branch ta-e thesame oathG

c. Supremacy Clause

i. The Supreme Faw of the

Fand consists of the

Constitution# as listed first#

and then statutes enacted

in pursuance of the

Constitution# as listedsecond in the te2t

ii. The idea that statutes are

therefore subordinate to

the Constitution

i. !rguments we might ma-e today in faor of the

Court?s opinion

$. In order to retain the relatie e1uality of

power among the three branches# weshould infer the Court?s power of Audicial

reiew

a. There is the possibility that

modernly the Court has achieed

more power than may hae been

intended

(. Society has remained prosperous oer

the past (JJ years under the regime of

Audicial reiew

*. +aybe Audges are more 1ualified to

interpret the Constitution since they

hae a legal education

($



i. The Treaty of 5aris that ended the war had a

proision that the assets of loyalist )rits could

not be sei;ed

ii. Therefore# the >irginia act of sei;ure iolated a

federal treaty

iii. The Supremacy Clause ma-es the Constitution

and treaties/statutes made in pursuance

thereof the supreme law of the land

b. 5rocedural )ac-ground

i. >irginia state supreme court holds that the

parcel of land belongs to Hunter?s lessee# not

the )ritish landholder

ii. >irginia court claims that $0 9udiciary !ct#

Section (8 is unconstitutional# which re1uires

that the Supreme Court rule on

Constitutionality of state decisions that are in

contradiction of federal treaties/statutes/the

Constitution

iii. S.Ct.: >irginia did not hae title to the land# so

the sei;ure of the land was unconstitutional.

Court ordered >! to reerse.

i. >! court refused# and the issue went bac- to

the S.Ct.

c. >irginia?s !rguments

i. The state is a separate soereign S.Ct. does

not get to tell the state what the law means

ii. 2pressio unius argument. The drafters did

not state the S.Ct.?s right to e2ercise appellateauthority oer state courts.

d. Holding: S.Ct. is supreme interpreter of the

Constitution and has appellate authority oer state

Audgments interpreting the Constitution

e. S.Ct. Holding arguments

(*



i. Te2tual: The framers e2pected that state

courts would hear Constitutional cases. The

S.Ct.?s appellate Aurisdiction e2tends to all

cases arising under the Constitution.

Therefore# the S.Ct.?s appellate Aurisdiction

e2tends to state court Constitutional

interpretations.

ii. Structural: States are only partially soereign

there are chun-s in the Constitution in which

the states are forced to surrender some of their

soereignty

iii. 5olicy: If each state is allowed to ma-e its own

e2clusie interpretation of the Constitution#

there will be no uniformity in interpretation inthe seeral states

$. 9udge Story thin-s that in the long run#

differences must be reconciled

(. S.Ct. must step in to resole

diergences

*. There is no guarantee that Audges of

e1ual learning will reach the same

conclusion in different states

a. )ecause maybe there is no

single direct answer

b. Constitutional interpretation leads

to different conclusions

c. This seems to brea- from the

+arbury reasoning# which was

that the S.Ct. stated what the

obious interpretation of the

Constitution was

iii. 9udicial 2clusiity in Constitutional Interpretation

$. +arbury

(4



a. ! narrow reading of +arbury does not find the Court

saying that the S.Ct. is e2clusie in interpreting the

Constitution

i. The Constitutional interpretation only binds the

parties inoled in the case

ii. 9udicial reiew is simply a byproduct of a

court?s duty to decide cases within its

Aurisdiction# including cases arising under the

Constitution

b. ! broad reading is that courts hae special

competence to interpret law according to the

Constitution and so they are the ultimate# supreme

interpreters of the Constitution

(. )inding upon 2ecutie )ranchL

a. Seeral 5residents hae 1uestioned S.Ct.?s

supremacy in interpreting the Constitution

b. 9efferson# 9ac-son# Fincoln# and 6B

c. 2amples

i. The red Scott decision held that Congress

lac-ed the authority to preent slaery in theterritories

ii. Fincoln ocali;ed opposition

*. 2clusiity is controersial

a. eryone agrees that Constitution is supreme law of

the land

b. )ut notion that Supreme Court interpretations of

Constitution are supreme law of the land iscontroersial

c.

4. Cooper v. Aaron

a. 6acts

(8



*. This was a prophylactic rule to protect

4th !mendment rights

4. Then Congress passed $0 USC *8J$#

which only re1uired a statement to be

oluntarily made to be admissible

a. !pparently Congress belieed

that the +iranda ruling was not

re1uired by the Constitution

b. S.Ct. said that Congress cannot

by statute change the meaning of

the Constitution by passing a

statute oerruling a S.Ct.

interpretation

ii. Whether or not +iranda ruling goes beyond the

Constitution is the 1uestion

$. S.Ct. asserts that +iranda does not go

beyond the Constitution# and is re1uired

by the Constitution

(. Therefore# Congress may not oerturn a

S.Ct. Constitutional decision by passing

a statute

iii. Types of arguments the S.Ct. may ma-e:

$. Te2t

(. Structure

a. Whole goernment

b. ocument

*. 6ramer?s intent

4. 5recedent

a. Fegal

b. Historical

(



8. 5olicy

b. Constraints on 6ederal 9udicial 5ower

i. Statutory and 5olitical Constraints

$. 5olitical Constraints on the Court

a. Domination and Confirmation 5rocess

i. 9udges hae to be appointed by the 5resident

and confirmed by the Senate

ii. )efore $0(# the 5residents did not refuse to

appoint based on potential Audges? iewpoints

iii. +odernly# 5residents do refuse to appoint

based on potential Austices? ideologies

i. Senate refused to confirm Beagan?s

appointment of )or- because of his ideology

b. Congress etermining Si;e and )udget of Court

c. The !mendment 5rocess

i. Has only been used 4 times to oerturn S.Ct.

decisions

d. Impeachment

i. Has neer happened

e. Fimited 5olitical Capital

i. o not control the troops# the money# etc.

ii. What gies them power is the belief that if a

political actor defies the Court# the people will

reolt

iii. Howeer# if the Court renders decisions that

are ery unpopular# their power erodes

f. 2ceptions to Supreme Court !ppellate 9urisdiction

(0



(. Congress? Control oer Court?s SubAect +atter 9urisdiction

%S+9'

a. !rticle III# Sect. ( sets out the -ind of federal cases

that courts can hear

i. Congress cannot e2pand the S+9 of federal

courts

ii. Whether Congress can limit the S+9

$. !rt. III# Sect. ( says that the Audicial

power of the Court shall e2tend to all

cases arising under the Constitution

a. This is an argument that the S+9

may not be limited

(. !rt. III# Sect. ( also says that Congress

can ma-e certain e2ceptions

a. This is an argument that the S+9

may be limited by Congress

*. 9urisprudence has held that Congress

can limit the S+9 of the federal courts

b. !" #arte McCard$e

i. 6acts

$. Under Beconstruction Faws# defendant

was incarcerated for publishing

incendiary and libelous articles

(. efendant brought a writ of habeas

corpus under a Congressional act

allowing a case to be heard where the

defendant is restrained in iolation of theConstitution

*. Congress was concerned that if this

case got to S.Ct.# the S.Ct. might rule

that all of the Beconstruction !cts were

unconstitutional

(



(. 5opulation shifts brought une1ual

distribution of population in the oting

districts

*. 5laintiffs bring the suit under 1ual

5rotection Clause# that haing improperdistrict si;es dilutes a citi;en?s oting

right

ii. Whether or not this is a political 1uestion

$. +aAority found it not to be

(. Dot eerything that inoles a political

issue is a political 1uestion

3. Six earmarks of a political question

a. Constitutional demonstrable

te2tual commitment of an issue to

a different branch of goernment

b. Fac- of Audicially discoerable

standards for resolution

i. If there is no articulable

legal principle then the

decision is Aust a matter ofdiscretion/choice

c. Impossibility of deciding without

an initial policy determination

i. 6or e2ample# someone

brining a suit that the

statutorily set minimum

wage is too low because it

puts people beneath anacceptable standard of

liing

ii. Society ma-ing rules for

itself that inole

*$



cost/benefit analyses are

political 1uestions

d. Fac- of respect for other

branches

i. Interference with core

powers of other branches

ii. When the court is inited

to interene in the

procedures of a coordinate

branch

iii. 6or e2ample# 5resident

has almost sole authority

to determine the inner

wor-ings of the e2ecutie

branch

e. When the nation needs to spea-

with a unified oice among the

branches to aoid potential of

embarrassment

f. When the nation needs to act

1uic-ly

4. If arguing that this is a political 1uestion:

a. There may be a lac- of standards

that shows which districting

schemes are legal and which are

not

b. +ay be an inappropriate policy

1uestion# in that districting

schemes are based on politicaltheory

c. #owe$$ v. McCor&ack

i. 6acts

*(



$. House rep accused of misappropriating

campaign funds

(. The House wanted to e2clude him from

haing a seat in the House

*. He brought suit saying this was

improper

ii. Whether the 1ualifications of admitting a House

Bep constitutes a political 1uestion

$. Support in faor of political 1uestion

a. Te2tual commitment: ach

branch shall be the Audge of the

1ualifications of its members

b. Fac- of respect for a coordinate

branch: Court would interene in

inner disciplinary proceedings of

the legislature

(. Court held this was not a political

1uestion

a. The te2tual commitment did not

include anything other than age#citi;enship# etc.# the 1ualifications

for office

b. !lso# after Congress had to seat

him# then there were other

mechanisms# i.e. the House

doing an ethics inestigation of

the Bep

d. 'o$dwater v. Carter

i. 6acts

$. Di2on started negotiations with China

(. U.S. had entered into seeral treaties

with Taiwan

**



*. The 1uestion was how such a treaty can

be abrogated

ii. Faw

$. Constitution says a treaty is negotiatedby the 5resident and then (/* of the

Senate must concur

(. Constitution does not say how to get out

of a treaty

iii. Issue: Whether the Senate had to be

consulted to abrogate a treaty

i. Whether this was a political 1uestion

$. 3es

(. There needs to be a unified oice on

whether or not the treaty will remain

*. The Constitution does not specify an

issue as to how this should be resoled#

so there is a lac- of Audicially

determinable standards

4. Inappropriate policy 1uestion becausetreaties may need to be abrogated in

one way in one instance# and another

method of abrogation may be necessary

in other situations

e. (i"on v. United tates

i. 6acts

$. Impeachment of a federal Audge

(. Constitution ma-es the House the sole

power to impeach and the Senate

haing the sole power to try

impeachments

ii. Issue: Whether a committee of the Senate is

sufficient to try the impeachment*4



iii. Whether a political 1uestion

$. +aAority says yes

(. The Constitution says that the Senate

shall hae the <sole= authority to tryimpeachments# so the Court cannot

interene. This is a matter of internal

processes.

*. There would be policy 1uestions it would

be inappropriate for the Court to decide

a. The Senate has the authority to

determine what constitutes an

offense worthy of impeachment

b. 6ramer?s intent argument: That

the criminal proceeding and the

impeachment trial are two

separate proceedings the Court

should stay separate from the

impeachment proceeding

(. Case or Controersy Be1uirements

a. 5rohibition on <adisory opinions=

i. The Court declined comment on Washington?s

war powers

$. 5resident wanted adice on whether or

not to remain neutral from the war

between ngland and 6rance

(. The Court says that the 5resident can

see- adice from his own e2ecutie

departments# per the Constitution

ii. !rticle III mentions that the Audicial power

e2tends to cases and controersies

$. The Court sei;ed upon these two words:

cases and controersies# reading them

as words of limitation

*8



(. The Court can only interene if

presented with a <case= or <controersy=

a. Beal parties with real and

opposed interests

b. !rgument about how the law

should apply to a concrete set of

facts already in e2istence

c. !ctual inAury or inAury li-ely to

happen in the immediate future

iii. Beasons for the prohibition

$. Fimiting Constitutional interpretation

through the Court to when there areactual parties with real interests at sta-e

(. Interpretation only ma-es sense with

concrete facts

*. It helps the Court aoid political

controersies & deciding based upon

principles rather than a set of facts

b. Timing issues: <mootness= and <ripeness=

i. +ootness

$. When the court?s decision will no longer

hae any impact in the real world

(. ue to changing circumstances# the

dispute has effectiely been ended

*. 2ample:

a. If a prisoner brings a habeascorpus petition see-ing to be

released# if he is released while

see-ing habeas corpus# the

habeas petition is moot

*7



b. With a suit for specific

performance# if the promisor dies#

the case is moot

4. De)unis v. *de+aard

a. White male refused law school

admission and claimed racial

discrimination

b. Trial court granted preliminary

inAunction while the case was

pending to allow him admittance

c. )y the time case got to Supreme

Court# the guy was in his last

semester# so the case was moot

8. Ashwander

a. If case can be resoled on either

Constitutional or non,

Constitutional grounds# always

will choose to resole the case

under non,Constitutional grounds

7. 2ceptions to +ootness doctrine

a. ,oe v. -ade

i. )y the time the case

reached the Court# the

woman had already gien

birth# so the claim that the

state was not allowing her

to hae an abortion was

moot

ii. The case says that the

human gestation period is

shorter than the time the

appellate process ta-es#

so all such cases would be

*



moot without this

e2ception

b. The 2ception: ! set of cases

that is are capable of repetition

yet eading reiew.

i. Boe

ii. !lso# when the cessation

of the actiity being sued

upon is at the discretion of

the defendant %sue for

preliminary inAunction

defendant stops# but then

starts later again'

c. Continued harm to the plaintiff or

li-elihood of reoccurrence will

defeat the mootness issue

ii. Fac- of Bipeness

$. When the facts hae not deeloped

enough for the Court to answer the

Constitutional 1uestion being as-ed

a. @ne factor is the harm if the

Supreme Court waited to decide

the case

b. Waiting itself to decide the case

has a <chilling effect= on

preenting people from iolating

the statute

(. Hypo %Mitche$$ '

a. Statute passed that prohibits

federal employees from engaging

in political actiities

i. To preent 5residents

from putting all the

*0



campaign wor-ers on the

federal payroll and then

haing the employees

campaign for 5resident

ii. +aybe Constitutionalproblem with this & the $st

!mendment

b. Constitutionality of the !ct went

to the Supreme Court

i. Three plaintiffs had not

worn political buttons and

handed out pamphlets

because they were afraidof disciplinary action

ii. The court said the case

was not ripe# because the

court did not -now the

actiities they would hae

engaged in or what

response they would hae

gotten from the ciil

serice authorities

*. 2amples:

a. Statute that preents farmers

from dumping fertili;er & any

challenge to the statute is unripe

until someone tells the farmer to

stop

c. The re1uirement of <standing=

i. efinition

$. Who has the right to raise a certain

issue in court

*



(. lements mandated by the <case or

controersy= re1uirements of !rt. III.

Sect. (

a. Injury in fact or other personal

stake in the outcome

i. @riginal notion was that

someone had to be

depried of a legal right.

ADA#* case & the data

processing companies that

rented out time using

computers sued ban-s

that were selling e2cess

use of computer time.!lleged that ban-s had

unfair competitie

adantage. The court said

that een though there

was no legal right# the

arguable iolation of an

!ct was harming them

%law preenting ban-s

from entering into certain

businesses'.

ii. It came to be that any

inAury would count &

psychological# aesthetic#

etc.# een if the inAury was

not monetary.

iii. Congress can create a

legal entitlement# which

can be iolated# and ifiolated gie rise to inAury

in fact

i. 2ample of personal

sta-e: !nyone can sue if

they hae -nowledge of a

4J



ii. The third party might hae

some other iew of the

harm

iii. The third party might want

to sue for himself

i. Someone with his own

personal interest at sta-e

will do the best Aob

. 2ample# bar,owner sued

because of a statute that

prohibited boys from

drin-ing# but not girls# at a

certain age. The bar,owner claimed lost

reenue because of the

statute the court allowed

an e2ception to the third,

party constraint.

!. &o standing !ased upon

generali(ed injuries

i. If the plaintiff has no inAury

greater than that of any

other citi;en

ii. )ecause the political

process %election of

Congressmen' can

remedy this

iii. 2ception# allowing

ta2payers to sue because

the goernment hasmisspent funds

ii. Why hae the re1uirement

$. The plaintiff should be one that has a

sta-e in the controersy# someone who

will be motiated correctly

4(



(. Dot Aust an abstract political type of

1uestion

iii. Luan v. De/enders o/ -i$d$i/e

$. 6acts

a. efenders of Wildlife sue to hae

the original interpretation of the

ndangered Species !ct

reinstated: that the Secretary of

the Interior has to consult with

federal agencies about their

actions not Aust in the U.S. but

also abroad

b. efenders claim that if a

regulation is not promulgated that

interprets the S! thusly that

they will no longer be able to iew

and enAoy endangered species

because federal agencies are not

re1uired to ensure that their

actiities abroad are not -illing off

endangered species

(. Court says that it is enough that one

person out of the group %efenders of

Wildlife in this case' suing hae

standing

*. !bsence of concrete inAury

a. Scalia says that the desire to

obsere or use an animal species

for aesthetic purposes is

<undeniably a cogni;able interestfor purpose of standing=

b. Howeer# in this case there was

no immediacy or imminence of

the possibility of inAury

4*



c. The plaintiffs did not buy a plane

tic-et or do anything affirmatiely

suggesting that any time in the

imminent future they would be in

a place to obsere endangered

species abroad

d. Compare with cho-e,hold case

i. Statute allowed police to

cho-e,hold arrestees

ii. "uy who had been subAect

to this torture sued

iii. He lac-ed standing

because the inAury had

already occurred & did not

hae standing to sue for

preliminary inAunction

because there was no

imminence of inAury

4. Fac- of Bedressability

a. 5rospectie effect only & if the

court ordered the agencies to notfund proAects that would

endanger animals# the new

regulation would hae

prospectie effect only and not

heal past harms

b. Wrong party & The Secretary of

the Interior is the party in the suit

if the court ordered the secretary

to issue a new regulation# there isa 1uestion as to whether the

agencies will be bound by the

regulation

8. 5rocedural InAury

44



a. Congress cannot pass an act

purporting to gie eeryone

standing unless the nature of the

concrete inAury is defined or the

plaintiff has a personal sta-e in

the outcome

b. !llowing Congress to do this

would iolate the case or

controersy re1uirements of the

Constitution in !rt. III# Sect. ( the

re1uirements re1uire that there

be a concrete inAury

i. Massachusetts v. !#A

$. 6acts

a. State suing to re1uire the 5! to

raise the emissions standards for

automobiles

b. +ass. claims that the failure of

5! to raise the standards is

causing global warming# which

has led to a measurable increase

in the height of the seas#

encroaching on the +ass. shore

(. !rguments for +ass. standing# that

there is a concrete inAury

a. +ass. owns the lands it has a

proprietary interest that is being

damaged through the 5!

causing global warming# which

causes loss of shore to the sea

b. 5arens 5atriae & the state has

the right to sue on behalf of its

citi;ens in their interests

c. Soereignty & +ass. has a law,

ma-ing interest as a soereign

48



*. Court

a. Holds that there is a concrete

inAury to the plaintiff# who does

hae standing

b. Causation and Bedressability

i. The dissent?s argument

against is that the 5! is

not the sole cause of the

rise of greenhouse gas

leels in the atmosphere.

! court inAunction re1uiring

the 5! to change its

standards would hae anegligible impact on the

rise of the waters. @ther

countries will continue to

emit large amounts of

gases. !lso# causation is

too attenuated# in that

there are too many other

factors contributing to

global warming for the

alleged 5! actions to besaid to cause +ass.?s

inAury.

ii. The maAority holds that Aust

because the remedy is

<partial#= the remedy does

e2ist and standing e2ists.

9ust because defendant?s

action contributes to small

amount of plaintiff?salleged harm does not

mean causation is lac-ing.

III. 6ederalism: The !llocation of 5owers )etween the 6ederal and State

"oernments

a. Constitutional "rants of Begulatory 5owers to the 6ederal "oernment47



i. The basic concept: Interpreting Constitutional "rants of 6ederal

5ower

$. Beasons for split soereignty

a. Fiberty protection

i. Haing both states and federal system to

protect due process of law

ii. @nly wor-s in one direction. If the state

depries of due process# the federal got. can

gie remedy.

b. +ore direct democracy

i. In theory we are more directly connected with

the state than national goernment# but this

may not necessarily be true

ii. There is the possibility of more direct

participation in goernment with a state

system

c. fficiency

i. Useful to hae goernmental units that can

goern smaller areas of land

d. >ote with the feet

i. Citi;ens can leae a state if they do not li-e the

way one state?s laws are

e. 6osters innoation

i. 5ossibility of e2perimentation

ii. @ne state tries out something and other states

can either follow or reAect the policy based on

whether it succeeds or fails

(. The balance of power has changed oer time

a. ery time there has been a national crisis# the power

of the federal goernment has grown

4



+ to pay a ta2 %there was only the second

U.S. ban- that fit this description'

iii. The ta2 was hefty. ery single iolation

resulted in a huge ta2. +aryland was trying to

run the ban- out of town. + wanted localinstitutions to get the depositsG

i. +cCulloch refused to pay the ta2. Charges

were brought against him.

. Two issues

$. oes Congress hae the power to

incorporate a national ban-L

(. Can the State of +aryland ta2 the ban-constitutionallyL

c. Court

i. oes Congress hae the power to incorporate

a national ban-L

$. The first ban- was successful and

Congress lawfully passed it into

e2istence. This is an intro proiding

eidence that the ban- is a useful thing#to persuade that this is constitutional.

(. +aryland argues the agency theory: the

states created the national goernment

under the Constitution and that therefore

the principal# the states# hae the

ultimate authority.

a. +arshall responds that though

the Constitution was enacted bystate delegates# the delegates

were elected by <the people=

b. Therefore# the allocation of power

is not something the states can

decide the allocation of powers

4



to the states is something done

by the Constitution

*. +aryland says that !rt. I Sect. 0 does

not list the power to charter a ban- as

an enumerated power. !nd the federalgoernment can only do what is

enumerated.

a. Court?s rebuttal is that the $Jth

!mendment language is deried

from the !rticles# but different

from them. !rticles said powers

not e2pressly gien to Congress

are resered to the states. $Jth

!mendment dropped the word<e2pressly.=

b. The $Jth !mendment says the

feds can do whateer the

Constitution allows them to do#

but this doesn?t answer the

1uestion of whether or not the

feds are limited to enumerated

powers.

c. $Jth !mendment opens up the

possibility of implied powers.

d. If the Constitution listed out the

details of eery single power the

feds hae# this would create a

comple2 and unreadable Code.

Therefore# there must be implied

powers.

4. Fogically# when creating a soereign

goernment to accomplish certain

things# there must be the power to do

the things that they are gien.

8. efining <necessary= in the Decessary

and 5roper Clause

8J



a. When the aerage person says

<necessary= he actually means

something different. The word is

used more broadly than only that

which is direct and simply needed

to carry out enumerated powers

b. istinguished from the phrase

<abso$ute$y necessary= as used

elsewhere in the Constitution

i. Where the framers only

wanted the fed to act

where it was absolutely

necessary# they clarified &

therefore in the DP5Clause Aust saying

<necessary= is some lesser

degree of necessity

ii. ! counterargument is that

<necessary= cannot be

modified & it only means

one thing

c. 5olicy argument & it would be agood thing to not gie

<necessary= too restrictie a

meaning

d. 2ample of the post office

i. Constitution gies the

power to establish post

offices# but not the power

to issue stamps.

ii. Issuing stamps is not

indispensably necessary#

but it is necessary and

proper.

8$



iii. Therefore necessary

should be defined to mean

<useful= or <appropriate=

e. Interpret the phrase <necessary

and proper= together# thecombined meaning of the words

to mean <useful=

i. Counterargument is that

this interpretation really

ma-es the word

<necessary= mere

surplusage

f. Decessary and proper clause isan enlargement# not a restriction#

of federal power. The clause is

located at the end of Section 0#

which contains the list of federal

powers.

7. The ends and the means

a. +arshall says that as long as the

end %one of the enumerated

powers' is being sought# then as

long as the means are necessary

and proper# the means are o-ay

b. +arshall says that the end%s'

sought here consist%s' of the

following enumerated powers:

Collecting ta2es# aiding in

borrowing money# establishing

the alue of coinage

c. The means# incorporating a

second national ban-# is

necessary and proper to lead to

these ends

8(



ii. Is +aryland Constitutionally prohibited from

ta2ing the ban-L

$. +aryland argues it has the power to ta2

under the general police powers it has.

+aryland also would argue that the listof prohibitions that states cannot ta2

does not include a prohibition from

ta2ing federal institutions# i.e. ban-s.

(. +arshall:

a. States impliedly gae up any

powers that would be

inconsistent with the powers of

the national goernment. Thefederal goernment has an

implied power to incorporate a

ban-# and since the state?s

ta2ation of the ban- threatens the

federal power# the ta2ation is

unlawful.

b. The power to ta2 is the power to

destroy. To allow the state to ta2

the federal institution would beinconsistent with the e2istence of

the federal goernment.

c. When the federal goernment

imposes burden on the states#

Congress does this# and

Congress is elected by the

5eople. )ut when +aryland does

something that imposes a burden

on the national scene# only

+aryland oters elected the

+aryland legislature. Do political

chec- e2ists on the state

legislature.

d. Slippery slope argument: If

+aryland is allowed to ta2 the8*



ban-# it might ta2 a ;illion other

federal powers.

4. er& Li&its v. hornton

a. "enerally

i. !r-ansas passed an amendment to the

constitution of the state limiting representaties

as to how many terms they could run for office

in Congress

ii. Court held the amendment iolated the

Constitution

b. Constitution specifies the 1ualifications for being in

Congress as age# citi;enship and residence asre1uirements for office

i. The Constitution is silent as to whether term

limits are 1ualifications

ii. !r-ansas argues that under the $Jth

!mendment# since the power to establish term

limits is not resered to the fed.# the states

hae that power

iii. +aAority arguments

$. There is the need for uniformity in

setting Congressional 1ualifications

(. Congressmen are meant to be

independent of their home states# as

indicated by the Constitution. This

might mean independence from state

authority to set 1ualifications.

*. The $Jth !mendment does not apply:

5owers cannot be <resered= to the

states because the states neer had

that power to begin with# historically

a. The states neer had the power

to establish Congressional

84



1ualifications before the

Constitution was ratified

b. ! counterargument is that

<reseres= refers to the police

powers that are inherent to thestate goernments

ii. The olution of 6ederal 5ower Under the Interstate Commerce

Clause

$. "eneral bac-ground

a. The power to regulate is seen as included in the

generali;ed police power that is possessed by the

states

b. The notion is that eery goernment has certain

powers# including police powers# Aust by the fact it is a

goernment

c. 5olice power includes power to regulate health#

safety# and welfare %and sometimes morals'

d. Under the !rticles of Confederation# the generali;ed

authority was presumed to hae remained with the

states

e. With the Constitution came the commerce clause#

granting power to regulate among the states to the

federal goernment

i. Howeer# the states still possess the general

police power to regulate

ii. States did not gie the federal goernment

general police power

iii. If the federal goernment wants to e2ercise

police power# there must be some direct te2tual

commitment in the Constitution# unli-e the

states who hae general police powers without

Constitutional commitment

f. Two types of 1uestions:

88



i. 6ederal goernment wants to act: Is the act

authori;edL %chapter * & Constitutional

authority'

ii. State goernment wants to act: Is the act

prohibitedL %chapter 4 & Constitutionalprohibitions'

(. The original claim for e2pansie federal powers: the

+arshall court and 'ibbons %the CF!SSIC!F iew'

a. 'ibbons v. *+den

i. 6acts

$. The D3 legislature granted licenses to

Fiingston and 6ulton as hainge2clusie rights to operate steamboats

in D3 harbor

(. Fi/6ult gae a license to @gden# who

began operating a monopoly "ibbons

was @gden?s partner who then left and

obtained a federal coasting license

a. The federal coasting license is a

license to engage in either

international commerce or to go

down the U.S. coast

b. "ibbons used the license to set

up a competing ferry in D3

harbor

*. @gden obtains a state court inAunction to

force "ibbons to stop operating

4. "ibbons appeals to U.S.S.Ct.# arguingthe monopoly to be in iolation of federal

law

ii. Court

$. How to interpret the Commerce Clause

87



a. Te2t: <To regulate commerce

with foreign nations# and among

the seeral states# and with the

Indian tribes.=

b. efining <commerce=

i. The narrow interpretation

would be buying and

selling of goods# which

would not include a

steamboat license

ii. The broadest

interpretation would be all

economic actiity

iii. +arshall defines

commerce somewhere in

between these two

interpretations.

i. He says that commerce

certainly includes

naigation because there

can be no transaction

unless the thing is

deliered %in this case

people'

c. efining <among the states=

i. Darrowly: The terms and

conditions of border

crossing

ii. 6or the feds to effectiely

regulate# they hae to

reach into the doc-s that

are completely within Dew

3or- and regulate what

occurs inside Dew 3or-

8



iii. )roadly: !nything that

affects more than one

state

i. +arshall ta-es the broad

interpretation.

d. efining <regulate=

i. Darrowly: Stating terms

and conditions

ii. )roadly: 5lenary. If

Congress has any power

at all# they can do anything

they want.

(. Holding: The federal law giing "ibbons

the license to operate in all the waters is

Constitutional under the commerce law.

)ased on the Supremacy Clause# since

the federal license is alid# this is

according to supreme law of the land

and the D3 statute is inalidated.

*. What if there was no federal licensing

lawL Can the D3 law be alid becauseof the absence of the law# though

Congress has the power to regulate in

this areaL

a. This case did not ta-e the stance

that if the feds can act# that the

states cannot act.

b. This case argued that there are

concurrent powers unless and

until there is a conflict# the feds

can act also.

b. irect . Indirect ffects Test %U.. v. !.C. 2ni+ht '

i. 6acts

80



$. Sherman !ntitrust !ct made monopolies

illegal

(. The Sugar Trust bought up other

companies and came to control 0Q of

sugar production in the country

*. The trust argued that Congress could

not regulate this actiity because it was

outside of the commerce power

ii. Issue: oes the Commerce Clause allow

Congress to regulate manufacturing

$. !rguing for regulation

a. This is commerce# in that amonopoly on a good causes a

high price# which leads to a

reduction in consumption

b. This is among the states# in that

monopolies affect more than one

state

c. This falls within the meaning of

<regulate=

(. The court says there is no authority to

regulate

a. Court says that

production/manufacturing is not

interstate commerce. The

producer?s intent %to sell items

outside the state' does not ma-e

it part of commerce. 5roduction

includes farming# mining# etc.

b. The fi2ing of prices by

manufacturers will hae an

indirect result on interstate

commerce. )ut Congress cannot

8



regulate actiities that do not

hae a direct effect.

*. It is hard to define what the distinction is

between direct and indirect effects

4. It seems li-e the feds being able to

regulate in this instance is a desirable

result# because no one state could

regulate a multistate monopoly

a. Howeer# the court did not want a

slippery slope. The Court

thought that if the feds could

begin to regulate primary

production# that the feds wouldcompletely displace the state

from a traditional area of state

regulation.

c. Substantial conomic ffects Test %Houston ,ai$road

Case'

i. 6acts

$. Bailroad charged much lower rates to

ship between points within Te2as thanfrom a point within Te2as to Fouisiana

(. The feds re1uired the railroad to cease

this discrimination in price

ii. Court

$. The feds stepped in to regulate because

they argued the intrastate actions had a

substantial negatie economic effect on

commerce between Fouisiana andTe2as

(. ! modern argument is that there are

different instrumentalities of interstate

commerce

7J



a. Teleision# the internet# etc.

b. !ir traffic

c. Boad traffic and railways

i. ! railroad is an

instrumentality of interstate

commerce# so therefore by

definition it may be

regulated

d. Stream of Commerce Test %wi/t v. U..'

i. 6acts

$. "oernment imposed restrictions on

price fi2ing for cattle at stoc-yards

(. 6rom there# the cattle are shipped to

other states

*. Suit filed against distributor who would

buy cattle# butcher them and then sell

the meat elsewhere

4. istributors claimed the federal

goernment was acting outside of thecommerce clause?s power

ii. !rgument against Begulation

$. The slaughtering and butchering of

cows ta-es place entirely within a state

iii. Court

$. Stoc-yards for cattle can be regulated

(. The court loo-s at the process of

gra;ing cattle to the selling of meat to

the consumer and says the entire

process is interstate in nature

a. The selling of the butchered meat

within the state is part of the

7$



policing of what it deems to be immoral

products

a. This raises a fourth issue# in

addition to commerce# among the

states and regulation:

b. Can Congress use the commerce

power to achiee a certain

<purpose#= regardless of whether

or not it is to regulate commerce

*. The era of limited federal power: from the Ciil War to the

"reat epression %the !BF3 +@BD phase'

a. Ha&&er v. Da+enhart %Child Fabor Case'

i. 6acts

$. Statute forbade the interstate shipment

of goods made with child labor

(. !lso prohibited child labor

ii. Court

$. Under C Knight# the statute could not

regulate child labor# because this isregulating primary production

(. !lso# Congress cannot forbid the

interstate shipment of goods produced

by child labor

*. In Champion# the lottery tic-ets# the

goods# themseles were reprehensible

but in this case# there was nothing

wrong with the goods# Aust how the chair

was made

a. Congress can regulate goods

bad in themseles# but not goods

made in a bad way

7*



b. Court addressed the argument

that feds not being allowed to

prohibit child labor would create a

competitie disadantage for

states that did not allow cheap

child labor. The Court said# <too

bad#= this is an indirect effect on

interstate commerce. Congress

cannot regulate.

b. The "reat epression

i. The 6irst Dew eal# Dational Industrial

Becoery !ct

$. !imed at stabili;ing wages# prices andproduction. Stopping the spiraling down

through gathering sta-eholders to

negotiate a code of fair practices in each

industry.

(. @nce the code was approed# it became

binding upon all members of the

industry# whether those members were

present at the code approal meetings

or not.

*. chechter #ou$try case tried the

constitutionality of the chic-en code:

a. Schechter was conicted of not

complying with the poultry code

b. Congress was regulating to try to

reduce prices to increase

spending# which would hopefully

end the epression

i. Increased spending would

increase purchases

among the states

74



c. !lso# regulating ma2imum hours

of wor- forces employers to hire

more# which creates Aobs

d. The maAority held the law

unconstitutional

i. 2traordinary conditions

%"reat epression' should

not affect Constitutional

interpretation

ii. Schechter as a wholesaler

is the end of the stream of

commerce. 9ust as C

Knight reAected regulationof production at the

beginning of the stream of

commerce# this case

reAects the end of the

stream of commerce

%wholesale selling of the

chic-ens'.

iii. 6eds cannot regulate Aust

due to necessity.

i. The effect upon interstate

commerce would be an

indirect effect. !ny effect

would not be dependent

upon Schechter?s

practices but upon other

people?s choices.

e. The concurrence agreed that the

DIB! was obAectionable

4. Carter v. Carter Coa$

a. +ini,DIB! Aust for the coal

companies# attempting to

stabili;e coal prices

78



b. +aAority says this legislation is

aimed at regulating the general

welfare of the people# which is

not allowed by the feds: the

general welfare can only be

regulated by the police power

%the states'

i. The maAority is saying that

if the end %or purpose' of

the regulation is

inappropriate# Congress

cannot use the means of

regulation een if they are

allowed under the

Commerce Clause

c. This is not commerce because it

is primary production

d. Dot among the states because

the mining ta-es place wholly

within single states

e. The effect on interstate

commerce is indirect

f. Cardo;o?s issent too- issue with

the focus on direct/indirect effects

i. Instead should focus on

the magnitude of the

effect. If there is a big

effect of the actiity upon

interstate commerce# then

regulation is appropriate

ii. Indirect effects might not

be large in magnitude# so

the focus should be on

how much effect there is

on interstate commerce

77



ii. The <Second= Dew eal

$. 6B has discoered that passing

legislation that would be reAected by the

Court made the legislation ineffectie

(. 6B had a court,pac-ing plan to replace

the old Austices

a. 6B phrased the bill as

increasing the si;e of the court

from to $8 to proide

assistance for the poor old fol-s

with a heay load

b. Intent was to add Austices with

6B?s iews on the commerce

power

c. The plan was oted down by

Congress# which was largely

comprised of 6B?s own

democratic party because this

was a disguised plan to

effectuate 6B?s plans

*. Howeer# the Court itself began to morebroadly construe the commerce clause

4. Second Dew eal inoled more bodies

and boards intended to impose direct

regulation. Dot by cooperation as in the

6irst Dew eal# but rather through

e2ecutie power: creating

administratie agencies that made these

choices directly. Second Dew eal was

the Dational Fabor Belations !ct%DFB!'.

4. The post,Dew eal reformulation and the decline of limits on

federal commerce power %+@BD phase'

a. (L,% v. 3ones Lau+h$in tee$ Corp.

7



i. 6acts

$. Fabor )oard ordered the defendant

steel company to stop discriminatory

employment practices %firing employees

who Aoined unions'

(. The Dational Fabor Belations !ct was

intended to regulate the terms of the

conflict between employer and

employee

a. The terms of the act try to

establish the connection between

the act and the effects upon

interstate commerce

b. The Court is not forced to buy the

statute?s language

*. !bout the company in this case

a. +anufacturing is strictly within the

State of 5ennsylania

b. 4th largest producer in the U.S.

c. @wns and controls mines in otherstates

d. @wns warehouses in other states

e. @perates fabrication shops in

other states

ii. Faw

$. !rguing for the manufacturer:

a. This is not commerce

i. It inoles employment

practices# which is not

commerce

70



ii. This is a manufacturer and

therefore outside of stream

of commerce

b. Dot among the states# in that the

industrial labor relations areentirely within the State of

5ennsylania

c. +anufacturer would win under

prior case law

(. +aAority %holding against manufacturer'

a. oes not address whether or not

this is actually commerce.

Instead focuses on different

1uestions. The real issue the

court says is whether or not the

actiity to be regulated affects

commerce.

b. The 1uestion is not whether or

not this is commerce# but whether

the actiity to be regulated has a

substantial effect on interstate

commerce

i. There are effects on

interstate commerce:

firing employees and

employee conflicts causes

stoppages in commerce

ii. The shift is from focusing

on what commerce is to

whether the actiitysubstantially affects

interstate commerce

iii. The difficulty with this

reasoning is that it is easy

to imagine eery human

7



actiity as haing a

substantial effect upon

interstate commerce , if

this is the test# it seems

that the states cannot

regulate anything and the

feds can regulate

eerything.

b. U.. v. Darby

i. 6acts

$. efendant# state lumber manufacturer#

charged with iolation of federal 6air

Fabor Standards !ct

(. The !ct regulated minimum wages#

ma2imum hours and child labor

*. Two prohibitions in the statute:

a. Do shipping goods made in

iolation

b. Do ma-ing of goods in iolation

c. 5erhaps Congress put bothprohibitions in the statute

because it wasn?t sure if one of

them would be struc- down by

the court

ii. Court

$. Can Congress prohibit the shipment of

goods in interstate commerce of goods

made under unfair labor conditionsL

a. 3es# the court reerses the

holding of the child labor case

%Hammer . aggenhart'

i. Congress has total power

to determine the terms and

J



conditions of what can

cross interstate

boundaries

ii. Congress has plenary

power oer bordercrossing# including

prohibitions of shipments

(. Can Congress directly prohibit the

manufacture of goods in contraention

of the !ctL

a. 3es# because a portion of what is

manufactured in the state

crosses state borders

b. Congress can regulate the

actiity wholly within a state:

because the court is not able to

regulate Aust the items to be sold

out across state boundaries. The

Court has to regulate all

production in order to regulate

the portion of goods that is

destined for interstate commerce.

c. !llowing long hours or low pay in

"eorgia will hae effects in other

states other states would be at a

competitie disadantage & they

would e2port fewer goods than

"eorgia. Therefore# these

prohibitions are Constitutional

because they regulate wor-ing

conditions that hae an effect on

interstate commerce.

c. -ickard v. )i$burn

i. 6acts

$



$. The !gricultural !ct aimed to raise the

prices of agricultural commodities to

sae farmers from ban-ruptcy.

Therefore# the act aimed to lower the

supply to raise prices.

(. eryone who raised wheat was gien a

1uota. If you raised more than that

1uota# you suffered a penalty.

*. This farmer raises wheat oer his 1uota

for personal uses: feeding his own

liestoc-# use for seed# ma-ing flour.

ii. 6armer?s argument

$. Cannot regulate because he is raising

the wheat to support his own farm#

which is not interstate commerce

(. The argument is not that the farmer can

raise howeer much wheat he wants. It

is that only the state can tell him how

much wheat he can raise.

iii. Court

$. The wheat that the farmer grew for

himself affects interstate commerce.

The farmer did not buy the wheat# which

made the supply too high.

a. The problem with this logic is that

there is no substantial affect on

interstate commerce.

b. Howeer# the aggregate effect is

that the statute applies to all thefarmers. The aggregate effect of

all the farmers raising aboe their

1uota does hae a substantial

effect on interstate commerce.

(



c. !lso the federal goernment

could not hae effectiely

regulated the price of wheat

without regulating the 1uota of

wheat that each farmer could

raise

d. Don,Commerce= !ctiities regulated through the

Interstate Commerce Clause

i. Ciil Bights

$. Heart o/ At$anta Mote$ v. U..

a. 6acts

i. +otel wanted to refuseblac-s

ii. The act at issue federally

outlawed discrimination

based upon race

iii. The act was legitimi;ed

under the Commerce

Clause# not the $4th

!mendment# because $4th

said no <state= could

deprie of liberty. $4th

does not prohibit the

federal goernment.

i. Congressional findings

showed that the motel?s

refusal had a great effect

on interstate commerce:

blac-s couldn?t trael and

therefore did not spend

money

b. Court

*



i. The motel?s prohibitions

hae a substantial effect

upon interstate commerce

ii. Holding is critici;ed

because it allows the fedsto regulate with legitimate

means under the

commerce clause but to

achiee an end that has

nothing to do with

commerce

(. 2at6enbach v. McC$un+

a. 6acts

i. The act allowed regulation

of restaurants if customers

were people traeling in

interstate commerce or if

the restaurant bought food

from out of state

ii. The restaurant

discriminated in this case

iii. The restaurant was near

the interstate and bought a

large amount of food that

deried from out,of,state

suppliers

i. The court allows the

restaurant?s discriminatory

practices to be regulated

b. Court

i. Bacial discrimination in

restaurants places a

burden on interstate

commerce

4



ii. This restaurant purchased

a substantial amount of

food from out of state.

Theoretically# regulating to

allow blac-s increases

number of customers#

which has effect on

amount of food that must

be purchased from out of

state.

iii. The Court says that there

Aust has to be an effect

upon commerce the effect

can be either positie or

negatie. 6or e2ample#

een if the effect was that

allowing blac-s would

decrease the number of

white customers# the

restaurant?s discrimination

could still be regulated.

ii. nironmental Faw

$. Hode$

a. 6acts

i. 6ederal statute re1uired

strip mining companies to

restore the land to

preious condition after

done with a mine

b. Court

i. Begulating an actiity that

does hae a substantial

effect upon interstate

commerce

8



ii. Be1uiring the land to be

restored allows people to

build on the land# isit it#

etc.

iii. Criminal Faw

$. <+ar-et= Crimes

a. Crimes that are inherently a part

of the interstate mar-et

%securities# commodities# etc.'

b. Don controersial under the

commerce clause

(. Using <instrumentalities=

a. 2ample# crime to commit fraud#

if using interstate mechanisms of

communication %using federal

mails or telephones'

b. Don,controersial

*. )order Crossing <hoo-=

a. Crimes that hae transportationacross state lines as part of the

definition

b. 6or e2ample# crimes inoling the

moement of persons across

state lines

c. +a-ing it a crime to illegally sell

firearms across state lines

d. Don,controersial

4. Controersial cases %#ere6 v. U..'

a. 6acts

i. 6ederal statute ma-es

loanshar-ing illegal

7



ii. idence that

loanshar-ing affects

interstate commerce & the

actiity proides interstate

organi;ed crime with

reenue

b. Court

i. @rgani;ed crime uses and

creates funds through

loanshar-ing# and this

money flows across

interstate lines

ii. Do proof in this case thatthe funds at issue were

inoled in interstate

commerce. Howeer# in

the aggregate#

loanshar-ing across the

country has an effect on

consumers spending

money in interstate

commerce.

iii. !lso# cannot segregate the

two# intra and interstate.

Hae to regulate both to

effectiely regulate the

interstate component.

8. The Behn1uist Court and the reimposition of some minimal

limits on federal commerce power %$Js till today'

a. U.. v. Lope6

i. 6acts

$. Congress passed the "un,6ree School

Rones !ct that forbade -nowingly

possessing a firearm in a school ;one



(. ! high school senior was conicted

under the statute

ii. Three areas that Congress can regulate under

interstate commerce:

$. Channels of commerce %border

crossings'

(. Instrumentalities of commerce

*. conomic actiities that hae a

substantial effect upon interstate

commerce

iii. The regulation of guns in school ;ones does

not meet the third area. It is not an actiity thatCongress can regulate.

i. "oernment?s !rgument

$. >iolent crime can handicap the learning

process and result in less productie

citi;enry which has a negatie effect on

interstate commerce because citi;ens

will spend less and goods in interstate

commerce will not be transferred as

much.

(. >iolent crime will spread high costs

throughout the economy. >iolent crime

reduces people?s willingness to trael

across the country.

. The holding in this case stops the slippery

slope and distinguishes from Wic-ard:

$. In Wic-ard the effects were attenuated#as in this case# yet Wic-ard allowed that

actiity to be regulated.

(. Wic-ard is distinguished# in that it

included economic actiity# in a way that

possession of a gun does not. Wic-ard

0



was engaged in growing of the crops#

which had to do with Wic-ard?s

economic actiity as a farmer. )ut

merely possessing something is not an

economic actiity.

*. Hypo: if the statute had forbade

borrowing or buying a gun and then

bringing into a school ;one# this would

hae been an economic actiity.

4. Hypo: If the statute forbade use of the

gun to engage in forced buying or

selling# this would hae been an

economic actiity.

8. Dote that the economic actiity is a new

limit# but does not oerturn the holding

in any of the preious cases %5ere;#

Heart of !tlanta# etc.'

i. ducation is a traditional area of state concern

and within state power. This is a reason to

loo- more closely at the bases of federal

power.

ii. The statute perhaps could hae been reformed

to sustain federal power if the statute contained

a Aurisdictional ne2us %<possessing a gun that

has traeled in interstate commerce.= This

would hae been true in 4 states because

only three states manufacture guns'.

b. U.. v. Morrison

i. 6acts

$. Congress passed the >iolence !gainst

Women !ct# which made it illegal to use

any physical iolence against women

because of their gender

(. The rationale of the statute was based

upon the commerce clause because of



the belief that the states were not

regulating the actiity well enough

*. In this case# the woman at the college

was raped by football players

ii. Congress in the statute set forth how gender,

based iolence affects commerce

$. The congressional findings were

e2tensie

(. Women miss wor- because of being

hurt

*. Women don?t graduate from college and

get Aobs

4. The causal relationship between the

actiity and effects upon commerce is

much stronger than what e2isted in

Fope;

iii. Though the causal relationship is strong# the

feds still do not hae the power to regulate

$. This is a traditional area of state

regulation

(. This is not an economic actiity %i.e.

beating up a girl is not an economic

actiity'

c. 'on6a$es v. ,aich

i. 6acts

$. Congress passed the Controlled

Substances !ct %CS!' criminali;ing themanufacture or possession of mariAuana

(. California passed an initiatie %a

plebiscite' allowing production and use

of mariAuana as a medicinal agent

0J



*. The 1uestion is whether the federal

statute falls within federal power

ii. efendant?s argument

$. "rowing mariAuana for personal use isnot commerce

(. There is no substantial effect of the

mariAuana growth upon interstate

commerce & in the aggregate# there are

not that many people growing mariAuana

for medicinal uses# so there will not be a

substantial effect upon the interstate

mar-et for an illegal drug

iii. Court

$. There are effects on interstate

commerce: through growing# not buying

the mariAuana from out of state %Wic-ard

type argument & growing a commodity

that can moe in interstate commerce'

(. Congressional findings established that

the actiity of growing mariAuana has

substantial effects

*. The growing of mariAuana is an

economic actiity %production of a

commodity for which there is a mar-et'

i. Scalia?s Concurrence

$. Congress can use the Decessary and

5roper Clause to regulate although the

growing of mariAuana does not hae a

substantial effect upon interstatecommerce. It is necessary to regulate

the national illegal drug mar-et# so

Congress can regulate the intrastate

actiity of growing in California.

0$



(. Counterargument is that you can

distinguish between those who are

growing for personal use and those who

are growing for illegal use in California.

. issent

$. !llow states to pursue different policies

and function as laboratories

7. 2trinsic limits on federal commerce power: the $Jth

!mendment

a. Fimits on federal power in general

i. !rticle I# Section

ii. $$th !mendment

$. eals with federal courts Aurisdiction

(. Chisho$& v. 'eor+ia

a. Citi;en of South Carolina sued

the State of "eorgia

b. The $$th !mendment oerturned

this decision and forbade the

citi;en of one state from suing

another state

iii. $Jth !mendment

$. oes it by its terms or by its spirit create

a limit on the e2pansion of federal

powerL

a. The te2t itself does not indicate

this

b. )ut the idea e2pressed is of <dual

federalism=:

i. )oth the states and the

federal goernment are

soereigns

0(



ii. There is a central essence

of state soereignty that

the feds may not infringe

upon# een if they were

otherwise authori;ed to act

(. Therefore# the $Jth !mendment brings

in a second 1uestion. The first 1uestion

is <!re the feds authori;ed to actL= )ut

the second 1uestion is <oes this

infringe upon state powerL=

a. The problem is that the court has

to go far outside constitutional

te2t to determine what is at the

core of the states? powers

b. )ecause there is no listing of

core state powers in the

document

b. (ationa$ Lea+ue o/ Cities v. Usery

i. 6acts

$. 6air Fabor Standards !ct %6FS!'

originally applied only to priateemployers

(. Howeer# 6FS! was amended to e2tend

minimum wages and ma2imum hours to

employees of states and local

goernments

ii. Issue: Can Congress e2tend regulation to the

states? hiring practices of its own employees

iii. Court

$. Besurrection of the $Jth !mendment

re1uirement that there be a recogni;ed

core area of state power

0*



(. Begulating state employees? pay

significantly impacts state policy and

impairs the state?s soereignty in

implementing its own policies

*. The problem with the case holding isthatE

c. 'arcia v. an Antonio Metropo$itan ransit Authority

i. 6acts

$. 6FS! imposed minimum wage and

oertime re1uirements on a municipal

transit authority

ii. Court

$. (ationa$ Lea+ue oerruled

(. The distinction between actiities

integral and non integral to state

soereignty is not wor-able

a. +ost actiities that were once

thought of as inherently state,

regulated are now actiities

regulated at a national leel

b. 6or e2ample# education used to

be solely an area of state

responsibility but the modern

public school system is a national

enterprise

*. Court cannot rule on which state

functions are integral this would be a

policy 1uestion decided by unelected Audges

4. 5rocedural safeguards inherent in

federalism preent intrusions into state

autonomy

04



a. 5olitical process preents laws

burdensome to the states

b. Congressmen from states are

elected by statesmen

8. Court finds no substantie limits on

federal regulation in the $Jth

!mendment howeer in subse1uent

cases the Court found in the $Jth

!mendment a methodological limit on

federal regulation

d. (ew 7ork v. U..

i. 6acts

$. Fow,leel nuclear waste needed to be

disposed of

a. +edical waste from 2,rays# for

e2ample

b. Dot nuclear power plant waste

(. !t the time of this case# only * states

had dump sites they accepted waste

from other states

*. The states that had the dump sites were

threatening to close them because of

the accumulation of waste

4. The goernors of the states met to

address this problem they decided on a

plan to create a policy for all the states

a. !rticle I prohibits such an

agreement among the states

without the consent of Congress

b. So Congress passed a statute

that eery state had to deal with

its own waste:

08



i. nter into regional

compact# or

ii. Hae waste disposal plant

within the state

8. This system wasn?t wor-ing well. States

did not find dump sites or enter into

regional compacts. "oernors came up

with a reised plan. Congress approed

the plan as a matter of federal law. *

incenties:

a. +onetary & States with disposal

sites could charge other states

higher fees to receie waste

b. !ccess & If the state didn?t do

something to proide for its own

disposal# the receiing state

could refuse to receie any more

waste from the other state.

c. <Ta-e title= Sanction & If state did

not meet re1uirement# must ta-e

title to the waste and be liable for

all damages suffered by waste

i. This was the real hammer

that was intended to force

the states to comply

ii. This is the proision that

the Court says is

unconstitutional

7. State of D3 alleges that the whole plan

is unconstitutional

ii. Court

$. The $Jth !mendment does not pose

any substantie limit on federal

07



regulation. 'arcia is still law. Congress

can directly regulate if it chooses.

(. Howeer# there is a procedural limit in

the $Jth !mendment principle: The

feds cannot <commandeer= statelegislatie authority.

a. The federal goernment cannot

mandate that the states pass

certain legislation

b. This would remoe state

autonomy to re1uire the states to

pass laws

c. !lso# if the feds could force states

to pass statutes# there would be

diminished accountability

i. If the oters do not li-e the

legislation they cannot

change the situation.

)ecause the state passed

the laws# but the feds

authored the law

ii. State bears the brunt of

public disapproal# while

feds remain insulated from

the electoral ramifications

of their decision

iii. The * incenties

$. +onetary & either enter into the

agreement or pay the surcharge

a. This is lawful because it is a term

of border crossing

b. This falls under the commerce

clause

0



c. )ecause the feds could impose

the surcharge under commerce

power# it is lawful for the feds to

re1uire that the state pass the

legislation# or else the surcharge

will be imposed

(. !ccess & either enter into the

agreement or be forbidden from

e2porting

a. 6orbidding e2ports is lawful under

the commerce power %Fottery

case'

b. This proision is lawful for thesame reason as the monetary

incentie

*. Ta-e Title Sanction & either enter into

the agreement or ta-e title

a. The feds do not hae the power

to re1uire states to ta-e title to

the waste

b. Therefore# the feds cannotre1uire either that the state

passes the legislation or ta-e title

c. The state is gien a choice

between two alternaties# neither

one of which is allowed to be

directly imposed

i. This amounts to telling the

state it has to legislate

ii. This is commandeering of

the state?s legislatie

authority

i. issent points out that this is not a ictory for

states? rights

00



$. States bargained among themseles to

impose this regulatory scheme

(. The political process succeeded in this

case so the states? soereignty was not

inaded

*. @ne state# Dew 3or-# tried to bac- out

and successfully got the law adAudged

unconstitutional# when it originally

wanted the law to begin withG

e. #rint6 v. U..

i. 6acts

$. The feds passed a handgun iolencepreention act

(. The act re1uired bac-ground chec-s to

be performed by state and local law

enforcement officers

*. The officers are mad because they are

not getting paid to do this

4. 5olice hae to deote resources to

obeying a federal mandate# but the fedsdo not proide funding to carry out the

mandate

ii. Court

$. The commandeering principle e2tends

to state e2ecutie

(. The Court cannot ma-e state officials

enforce federal law

a. The result of this is the feds doing

it directly through creating a

federal bureaucracy

iii. 6ederal Ta2ing and Spending 5owers

$. The Ta2ing 5ower as a Begulatory eice0



a. !rticle I# Section 0# Clause $: <The power to lay and

collect ta2es# duties# imposts and e2cises# to pay the

debts and proide for the common defense and

general welfare of the United States.=

i. <)ut all duties shall be uniform throughout theUnited States= & a restriction on this ta2ing

power

ii. @ther sections also place limitations on the

types of ta2es that may be imposed

iii. )ut oerall# not may limitations in the te2t on

the power to ta2.

b. !ddressed conAunctiely with considering the

spending power# below

(. The Spending 5ower as a Begulatory eice

a. The problem is that there are always conditions to

receiing the money from the federal goernment.

This turns out being a way of regulating actiity.

i. The problem is that this has the effect of

regulating actiity that otherwise the feds do

not hae power to regulate

ii. The 1uestion is to what e2tent the goernment

can condition the payment of money to states

upon the states acting a certain way# where the

federal goernment lac-s the authority to

directly regulate

b. United tates v. %ut$er

i. 6acts

$. Dew eal# !gricultural !dAustment !ct

of $**: stabili;ed farm prices by

reducing agricultural production

(. !uthori;ed payments to farmers who

reduced their crop acreage

J



*. Ta2 on processors was used to proide

the fund to pay the farmers who

complied by reducing their crop acreage

4. So there are two separate issues: The

ta2ing power and the spending power%which ma-es payments conditionally'

ii. +aAority

$. This is regulation# in that the behaior of

the farmers is inoluntary: the farmer

has to not produce to get the payments

(. The act uses federal spending to obtain

compliance this is using the spending

power for an illegitimate end# to

effectiely regulate

*. Cannot use the ta2ing/spending power

to achiee a non,reenue raising end

4. oes not address the issue of whether

or not the spending effected the general

welfare# because this is something for

Congress to decide

8. It is a slippery slope to leae the

ta2ation and spending power unchec-ed

iii. Stone?s issent

$. There is no economic coercion of the

farmers the farmers are only promised

gain if they do comply by reducing

acreage

(. Congress? power to spend is not limitedby its effects on motiating the actions

of citi;ens. If the motiation of citi;ens

accords with Congress? purpose for

ma-ing payments to promote the

general welfare# then the spending

power is legitimate.

$



*. Congress should be able to ma-e its

payments to citi;ens conditional in order

to achiee the <general welfare= that the

payments are sought to achiee.

c. teward Machine v. Davis

i. 6acts

$. Social Security !ct set up an

unemployment compensation scheme

(. The feds subsidi;ed the state

unemployment compensation process

only for employers with employees of

eight employees or more that enacted

the federal unemployment standards at

the state leel

*. 6or states that enacted the federal

unemployment compensation

standards# employers in the state got up

to a JQ federal ta2 credit for

contributions to the state unemployment

fund certified by a federal agency as

meeting re1uirements of the !ct

ii. +aAority & Cardo;o

$. This case is distinguishable from )utler

a. Cardo;o defines coercion

differently than in )utler. This

case inoles inducement# not

duress. The states could not gie

the re1uisite relief in this case# so

the need of the nation?s help was

needed to preent people from

staration.

b. Fots of goernment programs

influence behaior. If eery

inducement counted as coercion#

this would preent the

(



goernment from doing anything

at all.

c. The goernment must gie out

money on conditions. Haing

conditions to spending isconstitutionally re1uired: the

conditions must be imposed to

ensure that <the general welfare=

will be improed.

d. The carrot is the inducement# the

stic- is coercion. If something

bad will happen upon refusal# that

is coercion if denial of a benefit

will occur upon refusal# then thisis inducement.

i. Howeer# this does not

seem to be a manageable

standard.

ii. etermining what is the

threat of loss and what is

the hope of a benefit can

be a fine distinction.

iii. This case is the basis of modern conditional

spending law.

d. outh Dakota v. Do$e

i. 6acts

$. The ($st !mendment ending prohibition

forbade the feds from regulating alcohol

consumption and sales on national leel

(. So the feds try to effectiely regulate the

national drin-ing age through

conditioning highway funds to states

upon the states? agreement to raise the

drin-ing age to ($

*



*. If the states did not raise the drin-ing

age# the state would lose 8Q of funds

ii. +aAority

$. liminating younger drin-ers fromdrin-ing would ma-e the highways

safer ma-ing the highways safer is the

aim of proiding highway funds to the

states

(. Fimitations on spending power:

a. Te2t: has to be for the general

welfare# the meaning which is

decided by Congress

b. Congress must clearly state that

payments are made upon certain

conditions %Congressmen must

be aware they are putting a

restriction upon the states when

enacting it'

i. Congress is composed of

people who represent

home states# so thecongressmen are not

going to impose burdens

on the home states unless

they are aware of those

burdens

c. The condition must be related to

the purpose of the underlying

spending program

i. 6or e2ample# feds could

not ma-e +edicaid funding

conditioned upon states

changing their sales ta2

laws & there would be no

relatedness in such a case

4



d. Cannot be coercie upon the

states

e. Cannot re1uire the states to

iolate an e2trinsic constitutional

norm

i. 2ample# feds could not

re1uire the state to iolate

the $st !mendment in

order to receie the funds

*. If the aboe 8 criteria are met# the

spending program is alid. This is the

modern rule.

4. The most contentious in this case is

whether the condition is actually related

to the underlying purpose of the

spending program

a. The maAority says that the

purpose of the spending is safety

of highways. The condition of a

higher drin-ing age is meant to

ensure greater safety# and

therefore the condition is related

to the purpose.

b. The dissent says that the drin-ing

actiity has an attenuated effect

on highway safety.

i. issent suggests that the

spending power is

effectiely regulation if the

condition does more thanspecify how the money

can be spent by the states

8. CoercionL

a. The maAority says no because it

is only the denial of a benefit if

8



(. ,eid v. Covert

a. 2ecutie agreement said that

U.S. military personnel and their

dependents that committed

criminal acts oerseas would notbe tried by local courts but

instead U.S. military courts

b. The Constitution limits the

authority of military courts & they

cannot e2ercise Aurisdiction oer

ciilians

c. Holding: that proisions of

treaties do not oerride theConstitution

*. Treaties . 6ederal Statutes

a. Treaties and federal statutes are

gien e1ual authority

b. If there is a conflict between a

treaty and a statute# the last in

time controls

iii. Self,e2ecuting treaties

$. These become operatie upon Senate

approal

(. )ut some are not self,e2ecuting. They

are promises to enact law.

b. 6acts

i. Treaty between the U.S. and "reat )ritain

ii. The treaty was to affect the protection of

migratory birds migrating between Canada and

the U.S.

iii. Treaty meant to presere the birds as natural

resources through limiting hunting

0



i. Congress did pass an !ct along with the treaty

to carry out the limitation on hunting

. The court at the time would not hae allowed

this regulation Aust on the basis of the

commerce power

c. Court

i. Dow that a treaty has been authori;ed# the

power e2ercised according to the treaty is

legitimate

ii. Fimits on treaty power

$. Cannot infringe upon the Constitution?s

prohibitions %for e2ample# giing militarycourts Aurisdiction oer ciilians'

a. Howeer# in this case# the fact

that this was a traditional area of

state regulation did not mean

there was a constitutional

iolation

(. 5rocedural limits & formulated by

5resident and approed by the Senate

*. Implied limit & the subAect matter of the

treaty must be proper as something that

should be negotiated in an international

agreement

a. It is proper in this case because

the animals go bac- and forth

between the countries

b. This is li-e a shared resourcebetween the two countries it is

appropriate for the two countries

to negotiate to regulate

c. The subAect of international

treaties# howeer# has become a



ery broad category of things

now therefore potentially this

implied limit is not much of a limit

modernly spea-ing

d. !dditionally# the states could noteffectiely regulate the birds on

their own

b. Constitutional Fimits on the Begulatory 5owers of the States

i. ! brief note on e2press constitutional limits on the states

$. The states possess general police powers without any

e2press grant of power by the Constitution. Therefore the

states hae the power unless the Constitution prohibits such

a power to the States.

a. !rticle I# Sect. $J

b. !mendment $4

c. !rticle I>

(. etermining limits on state regulatory powers:

a. +ethod of !nalysis

i. O$: Could the feds hae regulated the actiity

in 1uestionL

$. If not# then the states are free to act

%unless some other part of the

Constitution prohibits it'

(. If yes# then go to O(.

ii. O(: Hae the feds actually regulated the

actiity in 1uestionL

$. If yes# then hae to address preemption.

(. If no# this is a dormant commerce clause

1uestion.

ii. 5reemption of state regulatory power by federal regulation

$JJ



$. efinition

a. Comes from the Supremacy Clause %!rt. 7# Section

('. If state law and federal law are in conflict# the feds

win. Types of preemption:

b. Conflict 5reemption:

i. Impossibility / irect %Traditional' & It is

impossible to not iolate both the federal and

the state law.

$. Bare type of conflict.

(. 2ample# a minimum standard by one

and a ma2imum by the other# when the

ma2imum set by one is lower than theother?s minimum.

*. D@T the following: F! minimum wage if

7 and federal is 0. 3ou can comply

with both laws as an employer by Aust

paying 0 an hour.

ii. Conflict with purpose of federal law:

$. 'ade

a. 6eds set regulations for

ha;ardous materials in the

wor-place.

b. State regulation set a public

health regulation that said

anyone handling dangerous

chemicals must undergo training.

State training re1uired was

greater than training re1uired byfeds.

c. The feds wanted to %$' create a

minimum safety standard and %('

create a national scheme of

training to ma-e it easier for

$J$



companies to shift wor-ers

among different states

d. The state statute did not conflict

with purpose %$'# but it did conflict

with purpose %('

e. The state statute# conflicting with

the federal statute# was

preempted

(. )an-ruptcy case

a. 6ederal law allowed debts to be

dischargeable in ban-ruptcy

b. The !ri;ona statute did not allowsomeone to get their drier?s

license bac- if they did not pay a

Audgment from a car accident and

the debt from the Audgment was

not dischargeable in ban-ruptcy

c. The !ri;ona statute was

preempted. It conflicted with the

federal purpose of federal

ban-ruptcy legislation.

i. 6ed ban-ruptcy legislation

is meant to gie people a

fresh start so that they will

be productie in society.

ii. Dot allowing someone to

get drier?s license unless

they pay the debt preents

someone from driing. In

!R# without public

transportation# this would

ma-e people of little

productiity to society.

c. 6ield preemption

$J(



i. If the feds occupy the whole field# then the

states cannot regulate in the field.

ii. How to tell if the feds occupy the whole field:

$. 2press & when Congress specificallysays that state law in the area is

preempted.

(. Implied & Congress has not e2pressly

said so# but other indicia in the statute

show that Congress is understood to

occupy the field.

8. #aci/ic 'as !$ec. Co. v. tate !ner+y ,esources

Conservation9

a. 6acts

i. California passed a law halting certification of

new nuclear power plants until a long,term plan

for waste disposal had been deeloped

ii. 6eds passed law and established regulatory

commission to promote the ciilian use of

nuclear energy in safe ways

b. Issues:

i. The type of conflict could not be an e2press

occupation of the field or an impossibility

conflict.

ii. The two issues are implied occupation of the

field and conflict with federal purposes

c. Whether or not there is implied occupation of this field

by the feds:

i. )alance between state and federal interests

$. When the federal interest is strong but

there is a relatiely small state interest#

this weighs in faor of preemption

$J*



ii. <ensity= of federal regulation being so

complete that there is nothing left for the states

to do

$. The feds hae completely occupied the

field of nuclear safety. There is nothingleft to the states in the field of nuclear

safety.

(. The feds hae not# howeer# occupied

the field of the economic iability of

nuclear power plants.

a. The court beliees the legislatie

history of the state statute# that

the statute had the purpose ofregulating the construction of

nuclear power plants# though

there is other eidence that the

state?s purpose was to promote

nuclear safety

b. It is appropriate to beliee

legislatie history

d. Whether or not there is a conflict with the purpose of

federal law

i. The purpose of the federal law was to promote

safe use of nuclear power

ii. California is ma-ing it impossible to promote

the safe use of nuclear power in California

through preenting the use of any power in

California

iii. Howeer# the Court says that the feds? purpose

of promoting safe use of nuclear power is not

at any cost. Therefore# the state?s law does

not frustrate the purpose of the federal law.

e. Court says there is no preemption of state law. Close

case.

$J4



iii. Implied limits on state regulatory authority arising from the

Interstate Commerce Clause: the so,called <dormant= commerce

clause

$. Introduction

a. Why Constitution gae commerce power to feds

i. States put up trade barriers and instituted

protectionist policies that hindered national and

international trade

ii. This would reduce the oerall amount of trade

iii. The framers belieed the nation would be

better off with a single national mar-et without

internal barriers to free trade

i. 6eds did not trust the states to restrict

themseles from putting up these trade barriers

b. The idea of the <dormant= commerce clause

i. !ddresses situations where feds could hae

enacted legislation in an area but did not

%dormant power'. Can the states legislate and

pass regulation in such areasL

(. arly attempts to define the implicit limits on state power

a. 'ibbons v. *+den %arly'

i. In dicta# addresses the 1uestion of what if there

had not been any federal coasting license in

this case

ii. +arshall leans in the direction of saying that

the grant of commerce power to the feds

implies the whole power and leaes no residualamount of regulation to the states

$. +arshall says he does not hae to

address the issue directly# though

iii. Is it a good idea for federal power to be

e2clusieL$J8



$. +aybe not# because if all federal power

to regulate commerce goes to Congress

and must be regulated by Congress# this

puts a huge burden on Congress to

legislate effectiely for eery problem in

the country

(. !lso# better for states to regulate when

feds hae not acted because there may

be a need for the area to be regulated

*. Howeer# allowing the states to act

absent preemption would allow states to

create a detriment to other states which

would remain until Congress has acted

b. -i$$son v. %$ack:%ird Creek Marsh Co. %5urpose'

i. 6acts

$. elaware law allowed company to build

dam across naigable stream

(. 5art of a proAect to drain a swamp for

health and agricultural reasons

*. 6ederal goernment had power to

regulate regarding a naigable stream

because this is an instrumentality of

commerce

ii. Court

$. The state was regulating through its

police power# to regulate health and

safety of the people

a. Howeer# the states beingallowed to regulate using the

police power when the feds hae

not enacted legislation may lead

to them being to regulate irtually

anything# since the police power

is broad

$J7



c. Di anto v. #A %irect/Indirect'

i. 6acts

$. State re1uired licensing fees on trael

agents selling steamship tic-ets forforeign trael

(. The purpose was to cut down on

fraudulent immigration

ii. Court

$. The federal goernment could hae

regulated because the commerce

clause allows it The feds had not

enacted any licensing statutes forbro-ers

(. State statute is alid because the effects

on interstate commerce from the state

acting is an indirect effect on interstate

commerce

*. issent pointed out that the difference

between direct and indirect effects was

too slight

d. Coo$ey v. %oard o/ -ardens %Inherently local/national'

i. 6acts

$. 5ennsylania law re1uired the plaintiff to

hire a pilot to guide him through the 5!

harbor

(. 5laintiff iolated the law

*. The feds could hae regulated but didnot enact any legislation

4. 5! had an interest because there was

speciali;ed -nowledge needed to safely

pass the 5hiladelphia waterway

ii. Court$J



$. The state?s law is alid because local

authorities are more aware of local

conditions

(. Where local conditions ary# there must

be room for local regulation

*. The counterargument is that there are

situations where a national standard is

needed

a. 6or e2ample# the width of railroad

trac-s. en though railroad

trac-s are seemingly a local

issue# a train traeling across the

country cannot use trac-s instates of different width from the

state of departure

b. The Coo$ey principle does not

apply in such cases

c. !iation flight patterns

d. !ll airline pilots are re1uired to

spea- nglish with air traffic

controllers because of need foruniformityG

*. The modern analysis:

a. 5rohibiting state <protectionism=

i. 6acial iscrimination !gainst @ther States

$. #hi$ade$phia v. (ew 3ersey

a. 6acts

i. D9 operated a number of

garbage dump sites.

+uch of the garbage came

from 5!. 5! authorities

concerned that the dump

sites were filling up.

$J0



ii. D9 passed a statute

ending the importation of

garbage from other states.

b. Issue: Whether D9 statute is

permissible under commerceclause

c. Court

i. This is an area of potential

federal authority because

there is an interstate

mar-et for refuse. 3et the

feds had not passed any

regulation in this case.

ii. State is not allowed to

regulate in this area. The

one thing a state may not

do is discriminate between

other goods and serices

because of where they

came from.

iii. Cannot discriminate

against goods and

serices simply because of

the point of origin

i. There are alternaties that

D9 could hae pursued:

shutting down the dumps

altogether and sending its

garbage out of state

d. The blac- letter rule is that astate cannot discriminate

between instate and out of state

parties in commerce

i. )ut this potentially

infringes upon state police

$J



powers to regulate the flow

of garbage into the state

ii. Howeer# the Court is

interpreting the commerce

clause structurally sayingthat the Constitution

intends to create a

national mar-et and the

commerce power preents

the states from interfering

with this national mar-et

e. Beasons for prohibiting facial

discrimination:

i. It is an illegitimate means

of isolating the state from

the national economy

ii. It is an attempt by one

state to isolate itself from a

common problem faced by

all the states through

erecting a barrier against

moement of interstatetrade

(. iscrimination Issues %State of @rigin'

a. <9ustification=

b. Ta2es/Subsidies

c. <Focal= iscrimination

d. Don,6acial iscrimination

*. Maine v. ay$or %<9ustification='

a. Bules goerning constitutional

cases

i. 5laintiff must ma-e prima

facie showing that a

$$J



constitutional iolation

occurred

ii. efendant has to show

that iolation is Austified

b. 6acts

i. +aine passed state

regulation prohibiting

importation of baitfish

purchased in other states

ii. ery la-e has its own

population of fish and

parasites in +aine. +aine

is trying to inade

nonnatie parasites from

inading +aine waters# to

protect the fish population.

c. !nalysis

i. The statute definitely

facially discriminates

ii. The <ends= or purpose is

to protect the fish the

means is closing the

borders to baitfish from

other states

iii. +aine had a legitimate

enironmental purpose.

5rotecting goernment

ecology is something a

goernment is allowed to

do.

i. !dditionally# the

discrimination is allowed in

this case because there

were no other

$$$



nondiscriminatory means

aailable.

d. 5roing that the state has a

legitimate purpose is easy. )ut

proing that there are no otheraailable means of achieing the

purpose is hard.

i. This is one of the rare

cases where the court has

upheld a facially

discriminatory statute

ii. It would not be practical to

use another means toachiee the ends for

e2ample# inspecting eery

tourist?s baitfish

e. Dote that a legitimate end is not

protecting state commerceG

4. Ta2es/Subsidies

a. Ta2 imposed on out of state

businesses and not on instatebusinesses iolates the strict

prohibition on facial

discrimination

i. Howeer compensating

use ta2es are permissible.

6or e2ample# out of state

ehicles registered in the

state being subAect to a

ta2.

ii. The out of state buyer is

treated the same as in

state because in state

buyers hae to pay sales

$$(



ta2es on ehicles

purchased in the state

iii. The same theory applies

to the difference between

instate and out of statetuition charged to

uniersity students. The

instate students in theory

already hae been paying

ta2es to fund their

education# so charging out

of staters a higher tuition

amount puts them on a

leel playing field.

b. States may proide subsidies to

instate but not out of state

producers without facially

discriminating# een though

subsidies hae a similar

economic effect as ta2es

i. There is no political chec-

on the legislature when it

ta2es out of staters

ii. Howeer# there is a

political chec- on the

legislature giing out

subsidies to in staters.

The oters in the state

hae to pay for the

subsidies.

iii. Subsidies are sufficiently

self,limiting that they are

-ept within reasonable

bounds through the

political process.

c. -est Lynn Crea&ery v. Hea$y

$$*



i. Combination of ta2 and

subsidy

ii. Ta2 was placed on all

consumers. @n the

proceeds of the ta2#subsidies were gien to

instate producers.

iii. 5lacing the two together

iolates the Constitution

i. The net effect is only

ta2ing the out of staters

8. <Focal= iscrimination

a. Dean Mi$k Co. v. Madison

i. Do sale of mil- in +adison#

WI was allowed unless it

had been processed within

8 miles of the town s1uare

of +adison

ii. The plaintiff is an Illinois

producer of mil- that

pasteuri;ed in Illinois and

wanted to ship to and sell

the mil- in +adison

iii. The category of those

e2cluded is not only out of

staters but also instaters

that are not within 8 miles

of +adison

i. This is not facialdiscrimination# in that it

does not faor instaters#

but Aust producers on a

local leel. The statute

discriminates against both

$$4



all out of staters and most

instaters

. The maAority says that this

local discrimination is

improper under thedormant commerce

clause. !

counterargument is that

there is a sufficient political

chec-# in that all other

people of Wisconsin

outside of the +adison

area could lobby to hae

the +adison people to

ote against the

ordinance.

i. The court treats this with

rigor to find a form of

interstate discrimination.

ii. The state?s interest here is

to allow for inspection of

mil- sold in +adison to

meet +adison standards.The court# though# points

out that there are

alternaties# such as

Wisconsin hae its

inspectors inspect out of

state mil- and then impose

the cost to the mil-

producers.

b. CA Carbone; <nc. v. C$arkstown

i. Clar-stown# D3 built a new

trash transfer station and

shut down landfill

$$8



ii. !morti;ed the cost through

charging a fee to haulers

depositing garbage there

iii. @rdinance re1uired trash

to be sent there

i. 5laintiff recycler sent trash

out of state# disobeying the

ordinance. 5laintiff

wanted to haul his trash

elsewhere# to a location

that would charge a lower

price. )ut plaintiff could

not due this because of

the ordinance.

. issent tries to distinguish

from ean +il-: this case

inoles establishing a

monopoly. Though a

monopoly discriminates

against eeryone else in

the world# this is not the

discrimination prohibited

by dormant commerceclause.

i. The maAority says this puts

a barrier upon the trash

that would normally flow

across interstate lines so

there is discrimination.

ii. There is discrimination and

it is not Austified because

there are other

alternaties# e2ample#

subsidi;ing the facility

through municipal bonds.

)ut this might not be a

alid option because the

$$7



ta2payers did not support

the facility in the first place

and probably wouldn?t ote

for a subsidy.

c. United Hau$ers Ass’n. v. *neida:Herki&er o$id -aste

i. Similar to preious case.

ii. City came up with state of

the art trash processing

facility. The county built

the plant itself and

charged a high fee

compared to otherdumpsites. 5assed a

similar ordinance re1uiring

that trash produced in

these counties had to go

to this particular trash

facility.

iii. Court says this is

distinguishable from

preious case becauseCarbone was legislation in

faor of priate economic

actor %comm. cl. forbids

this'# but present case is

goernment regulating and

acting itself.

i. +aAority says that trash

collection is a traditional

state function %this is

1uestionable because

"arcia said that the Court

cannot distinguish

between integral and

nonintegral state

functionsG'.

$$



. The court through

alidating the statute

suggests that there is a

difference between a

state,owned and priately

owned facility that

discriminates against out

of state commerce.

ii. Don,6acial iscrimination !gainst @ther States

$. %a$dwin v. '.A.). ee$i+; <nc.

a. 6acts

i. D3 law set minimum

prices to be paid to mil-

producers for mil- sold in

D3

ii. ! D3 buyer bought mil- in

>ermont and paid less

than the D3 minimum. D3

then said this mil- could

not be sold in D3

iii. D3 passed the law tostabili;e mil- prices to

-eep mil- farmers in

business.

i. The law had the effect of

out,of,state producers

haing to raise prices to

sell mil- in the D3 mar-et.

>ermont lost its

competitie adantage.

b. Court

i. The economic effect is

discriminatory against mil-

from >ermont.

$$0



plants from going out of

business. If there are too

many plants it might

negatiely affect the

practices of the plants.

i. 5laintiff was denied the

permit to build a 4th new

center. He was a )oston

mil- distributor who

obtained mil- from D3

producers.

b. !nalysis

i. There is no facialdiscrimination.

ii. There was no

discriminatory intent.

Court beliees D3 that D3

intended to regulate the

mil- distribution in D3.

iii. Donetheless the act is

discriminatory in effect.

c. iscriminatory ffect

i. Cuts off the flow of mil-

from D3 to +assachusetts

ii. Beduces the olume of

mil- flowing across state

lines

d. The outcome seems ine1uitable#

in that if it was a D3 entity denieda permit# they would hae had no

constitutional claim. The plaintiff

only had a claim because he was

selling the mil- out of state#

meaning he had a iolation of

dormant commerce clause claim.

$(J



*. Hunt v. -ashin+ton tate App$e

Advertisin+

a. 6acts

i. Washington State is aprimary apple producer

ii. DC statute re1uired closed

shipping bo2es of apples

to hae either US! grade

stamp or no grade mar-

iii. DC said they were doing

this to aoid consumer

confusion

i. W! system of labeling was

different

b. !nalysis

i. Do facial discrimination

ii. iscriminatory effects are

present

c. iscriminatory effects

i. Ta-ing away W!

competitie adantage that

it would ordinarily hae#

and benefiting instate

competitors

d. <Beal= intent

i. Court does not beliee that

the law was enacted topreent consumer

confusion

ii. The law inoled shipping

crates# which consumers

will neer iew

$($



iii. The real intent is to

preent competition from

out of state

4. %acchus <&ports v. Dias

a. 6acts

i. Heay Hawaii ta2 on

alcoholic products# but

e2ception for fruit wines#

which were indigenous to

Hawaii

b. !nalysis

i. Do facial discrimination

ii. )ut the intent was

discriminatory/protectionist

. Intent was to protect the

locally produced product

from competition of out of

state products.

8. Minnesota v. C$over Lea/ Crea&ery

a. 6acts

i. +D statute banned the

sale of mil- in plastic

nonreturnable containers

but permitted pulpwood

containers

ii. +D had small plastics

industry but heay

pulpwood industry

iii. +D?s alleged reason was

to preent buildup of

nonbiodegradable waste

b. !nalysis

$((



i. +D?s argument is that

these are two different

products. 5lastic is a

different product# so it

ma-es sense to

distinguish between mil- in

plastic and pulpwood

containers

ii. The counterargument is

that the statute faors in

state pulpwood producers

and burdens out of state

plastic producers wanting

to sell their products into

+D.

c. Court

i. The law is alid

ii. 5lastics are different from

paper products# therefore

it is appropriate for the

state to distinguish

7. !""on Corp. v. 'overnor o/ Mary$and

a. 6acts

i. + got all of its gas from

out of state

ii. + legislature found that

during gas shortage#

manufacturers that were

ertically integrated

faored their own retail

outlets# selling gasoline

only to their retail outlets.

roe local gas station

retailers out of business

for lac- of gasoline.

$(*



iii. + passed statute

re1uiring all retailers in

+ass. to be independent.

b. !nalysis

i. 22on?s argument is that

local stores were

benefitted but the

manufacturers# all out of

staters# were burdened

ii. Court says there is no

discrimination

c. Court

i. The out of state

manufacturers can still sell

their gasoline into +. !ll

that changes is who sells

the gasoline once it is in

the state.

ii. The dormant commerce

clause does not protect

particular competitors.

iii. The statute is not treating

out of staters different from

instaters. It only treats

producers of gasoline and

retailers differently. This is

not discriminatory.

b. 5rohibiting e2cessie <burdens= on interstate

commerce

i. outhern #aci/ic v. Ari6ona

$. 6acts

a. !ri;ona train limit law

$(4



b. Imposed ma2imum number of

cars

c. @ut of state railway carriers

would be forced to brea- down

the trains into smaller units

d. The claim was that longer trains

are safer than shorter trains.

Shorter trains can stop more

1uic-ly

(. !nalysis

a. This is an impediment to

interstate commerce

b. Faw inalidated

ii. outh Caro$ina tate Hi+hway v. %arnwe$$

%ros.

$. 6acts

a. South Carolina law

b. Fimit on truc- si;e

c. Heaier truc-s are more

dangerous on the roads

d. JQ of nation?s truc-?s e2ceeded

these limits

(. !nalysis

a. Faw upheld# unli-e the

inalidation of the law regulating

train length in the preious case

b. The argument is that highways

are more a matter of local

concern that railways

$(8



i. Boads can sere purely

local purposes# whereas

railways not so much

ii. These early cases show

that early cases wrestled with what the appropriate

standard was for burdens

on interstate commerce

iii. #ike v. %ruce Church %)asis of modern

analysis'

$. 6acts

a. 5robably would hae modernly

been decided as discriminatory

law

(. )alancing Test

a. Cost,benefit analysis

b. )alance the burden on interstate

commerce %cost' with the local

interests %benefit'

c. The argument is that a balancingtest is a way of enforcing public

policy

d. Howeer# balancing tests tend to

be hard to predict# and it opens

up the charge that Audges are

engaging in legislating through

doing a balancing test

i. %ibb v. (avao )rei+ht Lines

$. 6acts

a. Illinois law re1uired that truc-s

using highways had to use

cured mudflaps to -eep dirt and

snow out of the tires

$(7



b. !r-ansas and a number of other

states passed a statute re1uiring

all truc-s to hae flat mudflaps

because it increases the

effectieness of bra-ing

c. In the $8Js switching mudflaps

too- a couple hours

d. !r-ansas freight company

brought an action challenging the

alidity of the statute

(. !nalysis

a. The benefit to Illinois in safety is

less than the burden on interstate

commerce

. 2asse$ v. Conso$idated )rei+htways

$. 6acts

a. Iowa passed a statute limiting

si;e of truc-s %no 78 foot

doubles'

b. The longer truc-s are a little lesssafe because they are more li-ely

to Aac--nife across the road

c. 2ception was that they could be

longer to delier farm e1uipment

%benefit the citi;ens of Iowa'

d. 2ception also for border cities.

The longer truc-s could come

into the border cities. !lso theborder cities could by local

ordinance opt out of the state

statute. This is to protect Iowa

economic interests.

$(



e. Iowa is a maAor state with maAor

interstates going through#

allowing cross country trael.

(. !nalysis

a. The benefit to Iowa is the state

interest in highway safety# but the

maAority doesn?t buy this

argument

i. There is no net gain in

safety because the

prohibition of longer truc-s

means that companies

hae to drie morenumerous smaller truc-s.

ii. +ore highway miles drien

actually increases the

number of accidents#

decreasing safetyG

b. Done of the states around Iowa

ban such truc-s# so this forces

the truc-s to drie all the way

around Iowa or decouple the

trailer and put the goods in other

smaller truc-s. This is a burden

on interstate commerce.

*. Safety

a. In this case# the court beliees

e2pert testimony at trial that the

statute does not increase safety

much at all

b. Is this a problem# relying upon

e2pert testimony rather than the

political process# the oters who

oted for the law who belieed

that it improed safetyL

$(0



4. )rennan Concurrence

a. !naly;es as a discrimination

case

b. I!?s real purpose is to discourageinterstate truc- traffic so

eidence on safety is irreleant

c. If in fact there is a safety problem

or wear and tear to roads# Iowa is

actually shifting the problem to

other states# which is

discriminatory

d. Would not loo- to e2pert

testimony but rather legislatie

findings

i. The issue of how to

determine what the

purpose of a statute is

ii. It is not defined whether

we should loo- to what the

legislature actually found

or what the legislaturecould hae found as the

purpose of a statute

4. The <mar-et participant= e2ception to the dormant commerce

clause

a. efined

i. The goernment acting as a participant rather

than a regulator. The goernment engages in

interstate commerce# rather than regulatinginterstate commerce.

ii. The state itself buys/sells the goods# employs

people# etc.

$(



iii. When the goernment engages in commercial

priate actiity similar to that of other priate

actors# the actiity is not harmful to commerce

clause interests

i. 5riate commercial actors can <discriminate#=or choose with whom to do business

. When the goernment is not ma-ing laws but

simply doing its own buying and selling it

should hae the same freedom as other

economic actors

b. ! good e2ceptionL

i. There is less mar-et pressure and some

susceptibility to political constraints

ii. States act in their own best interest li-e priate

corporations# but states define their interests

differently# not Aust in terms of profit

c. The e2ception only applies to dormant commerce

clause rules %not preemption# for e2ample'

d. ,eeves v. tate

i. S owned a cement factory and chose to sellonly to South a-otans

e. -hite v. Mass.

i. +ayor of )oston issued order re1uiring all

construction proAects funded by the state to

hae at least 8JQ state residents in the

wor-force

/. outh:Centra$ i&ber Deve$op&ent; <nc. v. -unnicke

i. 6acts

$. !las-a owned timber and re1uired

purchasers to process timber in !las-a

before shipping out of state

$*J



a. ! clause in the contracts that the

state entered into with

purchasers had this processing

re1uirement

(. !las-a corporation that purchasedlumber and processed in 9apan sued

under dormant commerce clause.

9apan does not import finished lumber.

Therefore# under !las-an statute#

!las-an timber could not be sold to

9apan.

*. Statute designed to protect state?s

timber processing industry

ii. Contract !nalysis

$. 5riate economic actors rarely impose

contractual conditions upon what the

purchaser must do after purchasing the

product. )ut they sometimes do.

(. The common law normally discourages

placing such restrictions in contracts.

iii. ! ownstream Begulation

$. 5utting downstream regulations on what

purchasers must do in processing

influences a transaction to which the

state is not a party

(. This is not being a mar-et participant#

but rather being a lawma-er %a

regulator'

*. The state can only impose burdens oninterstate commerce within the mar-et it

participates. !las-a is only inoled in

the timber selling mar-et# not the timber

processing mar-et.

$*$



4. So downstream regulations do not fit

within the e2ception. The state can only

discriminate in terms of who it does

business with.

8. 6ederal <consent= to state laws that would otherwise iolatethe dormant commerce clause

a. #rudentia$ <ns. v. %ena&in

i. Faw

$. Congress can authori;e states to do

what they would be unable to do without

Congressional action

(. Congress can only authori;e the statesto do what it is authori;ed to do

i. Implied limits on the states deried from the 5riileges and

Immunities clause of !rt. I>

$. "enerally

a. Te2t: !rt. I># Sect. (# Cl. $: The citi;ens of each

state shall be entitled to the priileges and immunities

in the seeral states.

b. Constitutional doctrine affecting how states regulate

economic actiity

c. 5urely a nondiscrimination principle

d. States cannot treat out of staters differently with

respect to fundamental rights %priileges and

immunities'

e. 5riileges and immunities of citi;ens# specifically

(. 6undamental rights

a. Hard to define# but contemplated by the 6ramers

b. Dot granted by the Constitution

$*(



c. Datural law rights %pree2isting legal rights without

being positiely stated'

d. The problem is that natural law is in the eye of the

beholder

e. 6undamental interests that any human has

f. Fife# liberty and the pursuit of happiness

i. @wning property

ii. Beligion# speech

iii. 6amily autonomy

i. +a-ing a liing through ordinary means

$. Certain occupations are not ordinary

occupations# but <learned professions=

that can be regulated by the states

0. United %ui$din+ Construction rades Counci$ v. Ca&den

a. 6acts

i. The issue is whether the right to wor- for a

public contractor is a fundamental right

$. @rdinarily these are not things that can

be licensed by the state

ii. Camden# D9 ordinance re1uired at least 4JQ

of contract labor in city construction proAects to

be Camden residents

iii. Camden is located right across the rier from

5hiladelphia# 5!

i. 5urpose

$. Without this specification# there would

be a rush of 5ennsylanians nabbing up

Camden Aobs

(. D9 wanted to sole its own

unemployment problems

$**



b. !nalysis

i. Commerce Clause

$. The statute did discriminate against out

of state commerce

(. Howeer# the state is a mar-et

participant.

*. The dormant commerce clause is not

iolated

ii. 5riileges and Immunities Clause

$. !rgument that the clause does not apply

to an ordinance regulating a city# not a

state

a. Court treats the local subdiisions

of the state as indistinguishable

from the state under the 5/I

Clause

(. 6undamental Bight

a. arning a liing is a fundamental

right

b. The statute prohibits out of

staters from obtaining

employment with Camden

c. The court does not say the

source of this right

i. )eing employed is a

prere1uisite to liing and

being a member of society

ii. )eing employed is a right

prere1uisite to e2ercising

all other rights

c. ( steps:

$*4



i. Is the right of citi;enship a fundamental right

under the 5riileges and Immunities Clause

$. Sources of fundamental rights:

a. What the 6ramers included in theConstitution# for e2ample the )ill

of Bights

i. th !mendment & the

enumeration of certain

rights is not meant to deny

other rights. In other

words# rights in the

Constitution are not an

e2clusie list.

b. What ordinary people thing are

fundamental rights %custom':

i. Scalia argues what

ordinary people thought in

$0

ii. Kennedy would argue

what people thin- today

c. 5hilosophical rights

ii. Whether there is a substantial reason for the

difference in treatment

I>. !llocation of 5owers )etween the 2ecutie and Fegislatie )ranches of the

6ederal "oernment

a. Introduction to the )asic Issues: 7oun+stown and Da&es Moore

i. Theories of 5ower istribution

$. Separation of 5owers: !rticles I through III say that the

legislatie power is ested in Congress# e2ecutie power is

ested in the 5resident# and Audicial power is ested in the

Supreme Court and inferior courts established by Congress

(. Chec-s and )alances

$*8



a. The 5resident can propose and suggest legislation

and eto legislation.

b. The legislature approes high e2ecutie officers#

otes the money used by the e2ecutie branch.

*. The U.S. Constitution reflects both sets of ideas# which

creates conflicts

ii. Supreme Court Besolution of Conflicts

$. The S.Ct. maybe should not interene because there are

chec-s and balances in place to regulate conflicts between

the e2ecutie and legislatie branches

(. The counterargument is that it is the proince of the Court to

state what the law is

iii. Historical "rowth of the 2ecutie )ranch

$. The power of the e2ecutie branch has increased oer the

years# which would hae surprised the 6ramers

(. The 6ramers may hae intended the legislature to become

the most powerful branch !rticle I is the longest article

*. Beasons for growth of e2ecutie branch:

a. "rowth of the federal bureaucracy

b. The 5resident?s role has become more prominent in

handling national crises

c. Congress has more stringent Constitutional limitations

than the 5resident

d. Congress neer spea-s with a single oice because

of the arious opinions# but the 5resident spea-s with

one oice

iv. 7oun+stown heet Co. v. awyer

$. 6acts

a. Dational steel union threatened to stri-e in the middle

of the Korean War

$*7



b. There were statutes on the boo-s authori;ing the

federal goernment to end stri-es for the national

good in certain circumstances# but none of those

statutes applied

c. 5res. Truman went to Congress and as-ed them topass a law permitting him to act# and Congress did

nothing

d. 5res. Truman issued an e2ecutie order to the

Secretary of Commerce to sei;e the nation?s steel

industry to aert the stri-e

e. 5res. Truman sent a letter to Congress saying that if

what he was doing was illegitimate to adise him

f. ! steel mill sues the Secretary of Commerce

(. Ta-ings

a. 8th !mendment says that priate property cannot be

ta-en for public use without Aust compensation

b. This prohibition is read to imply that if the goernment

is willing to pay# it may sei;e property

c. Therefore# the goernment is authori;ed to sei;e the

steel industry

d. The issue is solely whether the 5resident can do this

on his own

e. The Court holds this action unconstitutional

*. +aAority @pinion

a. 5resident?s power may either originate with an act of

Congress or within the Constitution itself

b. Congress has not authori;ed# so the issue is whether

the Constitution authori;es it

c. Commander in Chief 5ower

i. The 5resident must see to it that the soldiers

hae the materials they need to fight the war

$*



ii. While sei;ing mills is related to the war# the

causal connection is too attenuated

$. There is a DP5 Clause listed in !rticle I#

but not in !rticle II# which suggests that

perhaps the 5resident cannot do whateer is necessary to carry out his

commander in chief powers

(. This attests to the notion that the

6ramers might hae seen the 5resident

as an <errand boy= of the legislature

d. The duty to faithfully e2ecute the law

i. )ut this does not imply the power to ma-e law#

only to e2ecute

e. The maAority concludes that the 5resident lac-s

Congressional or Constitutional authority to ta-e the

action he too-# and therefore his action was

unconstitutional

f. 6urther# this e2ecutie order loo-s li-e a statute in its

language

i. It is essentially legislatie in nature

ii. It contains a preamble and the authori;ation to

promulgate additional regulations

iii. !dditionally# this loo-s li-e a ta-ing. ! ta-ing

re1uires the e2penditure of funds. Congress

has the power of the purse# which suggests

that this is legislatie.

4. 6ran-furter Concurrence

a. 6ocuses more on chec-s and balances approach

b. BeAects the rigidity of separation of powers theory

c. Becogni;es that 5resident action is o-ay when no

listed in the Constitution# but only if a longstanding

practice that has not been 1uestioned by Congress

$*0



d. !rgues that the powers oerlap# but in this case#

Congress has e2pressed its will through being silent

when he as-ed for permission

8. 9ac-son Concurrence

a. !pproach is that 5residential powers are fle2ible#

based upon what Congress has done

b. )eliees that there are concurrent powers

%Fegislature and 5resident'

$. Congress and the 5resident hae

concurrent powers in this case

(. Congress? power comes from the power

to maintain armies and the 5resident?spower from being Commander in Chief

c. * Situations:

i. If Congress passed a statute authori;ing

5residential action# then the 5residential action

is legitimate. 5resident can e2ercise his own

powers and the shared powers. This is when

the 5resident?s authority is at its ma2imum.

ii. If Congress has not granted the power to act inthe way the 5resident is acting# the 5resident

can e2ercise his own powers

$. It seems that Congressional silence in

this case was ac1uiescence

(. )ut the maAority finds that silence was

Congressional disagreement

iii. If Congress e2pressly/impliedly disagrees with

the 5resident# the 5resident can only do what

is enumerated in the Constitution as his own

powers less any Constitutional powers

Congress has. 5residential power is at its

minimum.

$*



$. 9ac-son reads Congress? silence as

opposition to the 5resident?s actions.

(. 8 years before there had been an earlier

bill

7. >inson?s issent

a. Says that the 5resident has the power to e2ercise

broad emergency powers in certain times

b. >inson is right that there is historical precedent for

5residents in time of war e2ercising certain powers#

een if they weren?t legal

. Da&es and Moore v. ,e+an

$. 6acts

a. Iranians held our ambassadors as hostages

b. )y e2ecutie order# 5resident fro;e Iranian assets in

!merica. The assets were set aside for the use of

!merican plaintiffs who wanted to sue Iranian

companies.

c. Iran wasn?t happy with this# so a deal was struc- in

which Iranians agreed to release hostages and!merica released Iranian assets and set up an

account in the Detherlands where they would remain

for litigation. 5ending litigation in the U.S. was

dismissed and claimants had to bring the claims in an

international arbitration forum.

d. 2ecutie agreement directed pending litigation

%!merican contractors against got. of Iran' to be

dissoled

e. 5laintiff company sued because they did not want to

hae to gie up efforts in litigation to start oer in

arbitration oerseas

f. 5laintiff asserted that 5residential orders were

unconstitutional

$4J



(. Court

a. @rder unfree;ing the assets and nullifying

attachments

i. This action was sufficient because the I5! was a Congressional statute that authori;ed

this

ii. Since Congress authori;es it and 5resident

does it# the 5resident has all of his and the

legislature?s authority

b. @rder ending pending litigation

i. 9ustice )lac- would find that this is not an

e2ecutie type of actiity# so it wasinappropriate

ii. )ut the maAority finds it is o-ay

$. Congress has not e2plicitly passed any

statute supporting 5residential action

(. Interprets Congressional silence as

Austification/ac1uiescence %whereas in

3oungstown# silence was interpreted as

Congressional opposition'

a. @ne distinction is that this case

inoles foreign affairs and

3oungstown inoled domestic

affairs

i. It seems that 5resident

has more foreign affairs

powers in the e2press

language of !rticle II

ii. Howeer# 3oungstown

inoled foreign affairs to

an e2tent# in that the steel

production furthered the

war effort

$4$



b. 5articular !reas of Conflict

i. 6oreign !ffairs and War 5owers

$. Constitutional Te2t

a. Congress

i. Begulating commerce with foreign nations

ii. eclaring war

iii. efining crimes against the law of nature

i. Baising and supporting armies and naies

b. 5resident/Congress

i. Degotiate and ratify treaties

ii. !ppointment of ambassadors

c. 5resident

i. 5ower oer e2ecutie agencies

ii. 5ower to receie ambassadors

iii. The authority to act as Commander in Chief of

the armed forces

(. Congressional !uthori;ation of 5resident to !ct %U.. v.

Curtiss -ri+ht '

a. Congress passed statute allowing 5resident to ma-e

an order suspending sales of arms to the 5araguay

war

b. Congress is allowed to ta-e such an action because it

is allowed to regulate commerce with foreign nations

c. Howeer# can the Congress authori;e the 5resident

to do something that the Constitution only empowers

Congress to doL

i. The 5resident has more authority to act

unilaterally with respect to foreign affairs

$4(



ii. !lso# the notion that the Constitution only

states a limited number of e2plicit e2ecutie

powers but that since there are seeral listed

with respect to foreign affairs# the 5resident

has a general power oer foreign affairs

iii. !lso# the need for the 5resident to spea- with

one oice# better than Congress

*. War 5owers

a. Unilateral e2ercises of military force are not e2pressly

authori;ed by the Constitution but hae occurred

historically

i. 6rom the halls of +onte;uma to the shores of

Tripoli Thomas 9efferson ordered the troops

into battle

ii. U.S. nay in the ciil war established a

bloc-ade around Confederate ports in Ciil

War.

$. The problem is that Congress had neer

declared war.

(. Howeer# sei;ures were Austified

because of 5residential order# from

where the te2t says 5resident can

suppress domestic insurrections

iii. >ietnam was the straw that bro-e the camel?s

bac-

$. Congress passed the War 5owers

Besolution

(. War 5owers Besolution

a. 5resident must notify Congress

of placing the troops into action

b. Congress has 7J days to

authori;e the 5residential use of

military force

$4*



i. If Congress fails to act# the

troops must come bac-

ii. If Congress approes# it

allows the troops to remain

for *J days

c. 5resident may introduce troops

into hostilities pursuant to

i. ! declaration of war

ii. Specific statutory

authori;ation

iii. ! national emergency

created by attac- upon theU.S.# its territories or

possessions# or its armed

forces

*. Constitutionality

a. +ost 5residents say it?s not

b. )ut it is followed nonetheless

b. 5residential detention of military combatants

i. !" #arte Mi$$i+an

$. 6acts

a. 5residential power to suspend

the writ of habeas corpus was the

issue

b. Fincoln suspended habeas

corpus without Congressionalauthori;ation

c. !rt. I# Sect. mentions that the

habeas corpus can be

suspended in time of emergency.

Sect. is a list of the things that

Con+ress cannot do# meaning$44



that the Constitution would not apply

%though the Court later held that the

Constitution did apply'

i. !pplicability of the Constitution?s Beach

$. oes the Constitution reach a defined

territory or a group of actors

(. The Court has said that the Constitution

applies to the U.S. territory# and not to

all actors

*. Whether "uantanamo is a part of the

U.S.

a. ,asu$ v. %ush said that yes# it isand the Constitution applies there

b. Though Cuba has ultimate

soereignty oer Cuba# the U.S.

has e2clusie Aurisdiction oer

"uantanamo )ay and therefore

detainees there are subAect to

Constitutional rights

. Ha&di v. ,u&s/e$d

$. 6acts

a. Inoled the only !merican

citi;en at "uantanamo

(. Two Issues:

a. Whether 5resident can authori;e

detention

b. Can the 5resident determine what procedures will be gien in

tribunals

*. 5residential authori;ation of detention

$4



a. Statute: Do citi;en shall be

imprisoned by the U.S. e2cept by

act of Congress

b. Habeas relief is aailable for this

U.S. citi;en# though the 5residentdid not agree

i. Dot Aust for indiidual

rights# but a separation of

powers issue

ii. The 5resident should not

be able to detain someone

without the right to habeas

corpus

c. !U+6 statute authori;ed the

5residential detention

i. )ut the Court ma-es a

stretch: the !U+6 only

gies the 5resident military

powers to use force

against those who are

terrorists

ii. This is not an e2plicit

authori;ation of the

5resident to detain these

people

iii. !rt. I Sect. mentions

that the habeas right may

be suspended# which

suggests that Congress

should be inoled in thedecision to suspend

habeas corpus

d. The issue is separation of

powers: whether only Congress

$40



$. !dministratie Faw history

a. In the country?s early history the federal bureaucracy

was ery small but now is huge

b. Congress creates these e2ecutie agencies iastatute

i. There is no e2plicit Constitutional te2t

ii. Uses DP5 clause

$. 6or e2ample# Congress gien power to

ta2. So it is DP5 to create an IBS# an

e2ecutie branch# for the collection of

that ta2.

(. The idea is if Congress is entitled to

regulate a certain thing# they can

establish an administratie agency to

ma-e it happen.

c. !rticle II suggests that these agencies will e2ist but

the Constitution says ery little about how the

e2ecutie branch will be set up

d. 5resident has power to appoint officers in the

agencies and superise the agencies to ensure thatthey are e2ecuting the laws

e. 9udiciary has some superisory authority oer the

agency also. Therefore it is hard to allocate among

the * powers this superisory power.

(. What 2ecutie !gencies o

a. nforce the laws

b. 5ass regulations

i. SC prohibition of engaging in fraud is a rule#

not a statute

ii. Income ta2 proisions

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ii. Hearings can also e2ercise control oer

agencies through forcing officers to answer for

their actions at hearings

8. 9udicial Control oer !gencies

a. 5assage of regulations can be appealed to the court

b. +a-e sure that agencies stay within their bounds

7. !ppointment

a. Constitutional Te2t

i. The 5resident# with adice of the Senate must

appoint:

$. Cabinet

(. @fficers of the U.S.

a. !ttorney "eneral

b. High leel military officers

c. tc.

ii. Congress may by law est appointment of

inferior officers in the 5resident# courts of law#or heads of departments

iii. There is a third category of officers that the

Constitution is silent on

$. eryone else is Aust appointed as a

matter of law

(. Congress can goern this by statute

howeer it wants

*. +odernly there is a ciil serice e2am to

become a post office wor-er# etc.

i. Who can be appointed

$. Cannot be in the e2ecutie system if you

are a Congressman

$8(



faithfully if he can remoe officers who are not

faithfully e2ecuting the laws

iii. Unitary e2ecutie:

$. 2ecutie power is ested in the5resident

(. The notion that all such power is ested

in the 5resident

c. !rgument that Congress should hae say so in

remoal

i. Senate is re1uired to confirm for appointment#

so Congress should be allowed to hae input in

remoal

ii. The 6ederal Besere )oard is not answerable

to anyone Congress creating this board under

the DP5 Clause and made it unanswerable to

the 5resident

d. Myers v. U..

i. 6acts

$. 5ostmasters were considered officers ofthe U.S.

(. 5resident wanted to fire a postmaster

*. Congress had passed a statute saying

5res. could not remoe without the

Senate

ii. Court

$. 5resident had unlimited power toremoe

(. 5ostmaster was e2ercising purely

e2ecutie powers

e. Hu&phrey’s !"ecutor

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i. 6acts

$. 5resident wanted to fire an 6TC

commissioner

(. 6TC has all * powers. Dot purelye2ecutie.

*. 6TC was set up by Congress to be

somewhat independent from the

5resident.

4. 6TC members were set up for terms

and could only be remoed for good

cause. This shifted power away from

the 5resident.

ii. Court

$. Congress can retain power to remoe

the 6TC members because their actions

are not purely e2ecutie

(. They decides rules and regulations and

particular disputes

/. %owsher v. ynar

i. 6acts

$. !ct to reduce the budget deficit by

authori;ing the Comptroller "eneral to

report conclusion to the 5resident

(. 5resident re1uired to put C"?s

recommendations into effect

*. !ct creating the C"?s office allowed the

C" to be remoable by a Aoint resolutionof Congress

ii. Constitutionality of Fegislature )eing !ble to

Bemoe the C" %e2ecutie'

$. Congress is able to effectiely e2ercise

e2ecutie power because it creates an$88



e2ecutie officer but reseres to itself

the power to e2ecute the laws through

remoing the officer

(. The power to fire is the power to control:

Congress could threaten to remoe theofficer if he did not do what Congress

wanted

*. !lso# Congress retaining authority oer

the C" effectiely ma-es the C"

legislatie in nature and therefore he

cannot wield authority oer the

e2ecutie

iii. Bule: Congress cannot resere power to itselfto remoe e2ecutie officials

i. issent says that C" uses both e2ecutie and

legislatie powers %chec-s and balances

approach'

+. Morrison v. *$son

i. 6acts

$. Dormally !ttorney "eneral prosecutes

crimes against the U.S.

(. When it was suspected that the

e2ecutie branch iolated the law# there

came a need for independent counsel to

prosecute# since the !" was part of the

e2ecutie branch

*. Statute allowed the establishment of

independent counsel by the court

4. !llowed the dismissal of the counsel by

Congress for <good cause=

8. In this case# the independent counsel

was appointed to inestigate obstruction

of Congressional inestigations

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ii. !ppointment 5ower

$. If counsel is an officer of the U.S.# he

must be appointed by the 5resident

(. )ut counsel is an inferior officer:

a. 5osition with limited duties %only

to inestigate one particular

charge'

b. 5osition with limited authority

%subAect to control by the !" &

!" able to dismiss for good

cause'

c. 5osition limited in tenure

*. The Constitution says that Congress

can gie 5resident# heads of

departments# or the courts the power to

appoint inferior officers

a. )ut there is an argument that

Congress should not hae gien

the courts the power to appoint

the independent counsel

b. )ut maAority says it is allowed in

this case

iii. Bemoal power

$. Can only be fired by the !" for good

cause

(. The independent counsel is purely

e2ecutie in nature# which would

suggest under +yers that Congress

could not limit the remoal power

a. )ut this case is an e2ception to

the <purely e2ecutie= officer rule

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a. efined

i. The legislatie power creating the agency

reseres the right to eto agency action if the

legislature disagrees

ii. This ma-es sense under an agency theory that

the agency is acting on behalf of the legislature

and cannot act unless the legislature %the

principal actor' agrees

b. <( v. Chadha

i. 6acts

$. Statute proided that isitors to the U.S.

had to hae a isa %certain amount oftime to remain in the U.S.'

(. Dormally# you are deported if you

oerstay the isa

*. The statute proided a mechanism that

someone subAect to deportation could

appeal to the IDS and as- for special

dispensation

4. Statute also contained a legislatie etoproision:

a. When agency rules who gets to

not be deported# this is reported

to the Congress

b. Congress then could determine

whether the agency properly

e2ercised discretion

8. Chadha and four others were allowed to

stay by agency# but then Congress said

this was improper and oerruled#

re1uiring deportation

ii. Unconstitutionality

$8



$. The statute is legislatie in nature and

thus must be passed as re1uired by the

Constitution

(. Whether this is legislation

a. There is a presumption since

Congress is doing it

b. This statute alters rights# and

legislation alters rights

i. Howeer# Audicial

Audgments alter people?s

rights and those are not

legislation

c. This same effect could hae been

achieed by legislation

d. This is not conincing that this is

legislation

e. 5owell concurrence sees this as

Audicial actiity because statute

was applied to Chadha

f. It could be argued that this ise2ecutie in nature because the

e2ecutie e2ercises discretion in

whom to prosecute

g. issent says that whether this is

legislation doesn?t matter

because powers oerlap

i. 5ractically spea-ing there

are many other proisionsli-e this

ii. This allows a balance of

power between Congress

and the e2ecutie branch

gies Congress bac- a

$7J



little of the power it lost

through being forced to

delegate

*. Congress can delegate the power to the

IDS to ma-e rules regarding deportationbut it cannot resere to itself the power

to eto IDS actions

(. Fine Item >eto %C$inton v. (ew 7ork '

a. 6acts

i. Congress passed Fine Item >eto !ct to control

the budget deficit

ii. The 5resident was authori;ed to cancel in whole any item of spending in a bill

iii. If Congress wanted the money restored#

Congress could oerrule the 5resident

b. Fine Item >etoes

i. Common in state goernments because of

state constitutions allowing them to balance the

budget

ii. >ery difficult for legislatie bodies to control

spending because of conflicting interests

c. Fine item eto as unconstitutional

i. +aAority ta-es a separation of powers

approach

ii. The Court sees this as legislatie in nature

because the 5resident changes the bill before

signing it

$. The change inoles spending and

Congress has power oer spending

(. Changing the bill is inherently a

legislatie act

$7$



*. The counterargument is that choosing

not to appropriate money is an

e2ecutie act %simply choosing not to

spend'

a. !lso if you ta-e a chec-s andbalances approach# a line item

eto acts as a chec- on

Congress

b. This is good because modern

Congressional bills are the si;es

of telephone boo-s# rather than

single issues

c. 6orcing the 5resident to approeor reAect a whole parcel of issues

is inappropriate# so allowing the

line item eto restores some

power to the 5resident that he

has lost in modern system

. 2ecutie 5riilege and Immunity

$. 5riilege efined

a. Dot haing to gie eidence

b. The Constitution gies immunities to Congressmen

while engaged in their wor-

c. )ut there are no listed e2ecutie immunities gien to

the 5resident

8. U.. v. (i"on

a. 6acts

i. Watergate inoled the 5resident?s agents

brea-ing into the democratic national offices

ii. 5resident had certain tapes that had

incriminating information

$7(



iii. Tapes were subpoenaed as eidence in

criminal trial of Di2on and others

b. 2ecutie 5riilege

i. 5resident is subAect to subpoena because he isnot aboe the law

ii. Whether e2ecutie priilege e2ists at all

$. Dothing in the Constitution?s te2t

(. !rgument of necessity: the 5resident

sometimes needs to maintain

confidentiality

a. The problem is that there is no

DP5 clause for the e2ecutie

branch

b. Howeer# the structural argument

is that the Constitution gies

power to negotiate treaties and

other items of national security#

so there is an implicit e2ecutie

priilege. Decessary to

accomplish the duties gien to

the 5resident.

iii. Do e2ecutie priilege to refuse subpoena

$. )alancing test: Importance of the

general priilege of confidentiality of

5residential communications against the

hampering of administration of criminal

Austice

(. Importance of 5residential confidentialitycompared with importance of

information

*. Court used this general balancing test in

future e2ecutie priilege cases

4. Deed for confidentiality

$7*



i. What constitutes public use

ii. What is a ta-ing

(. 5urpose

a. "oernmental need

b. 5ublic interest sered by allowing the proAect to go

forth

c. Usually people hae a price at which they will sell

d. The notion that it is inappropriate for the priate

person to get a windfall through demanding a high

price from the goernment

e. There must be Aust compensation# though# so that thecost can be borne by the entire community and not

Aust the person whose land is condemned

*. 5ublic Use

a. Clear cut cases

i. Schools and roads

ii. Harder 1uestions are when goernment sei;es

property to transfer to a priate owner toachiee a societal good

b. %er&an v. #arker

i. 6acts

$. .C. condemned blighted properties

(. "oernment bought up the properties at

forced sale and resold to urban

redeeloper

ii. Court

$. The nation?s capital was oercome with

being a deteriorating slum

$77



(. This was a legitimate public use to

engage in city improement

c. Hawaii Housin+ Authority v. Midki//

i. 6acts

$. Hawaii used to be a -ingdom in which

the -ing owned the island island

eentually sold to industrial deelopers

(. +ost of the land was owned by a

handful of owners# so most residents

had to rent

*. Fegislature wanted to redistribute the

land so that more people would becomelandowners

4. 5assed a law allowing buying and

reselling the land plots to the tenants

ii. Court

$. 5ublic use is determined by the state

(. There is no re1uirement that ta-en land

must be put to use for the generalpublic the use can be use to cure a

public eil

d. 2e$o v. City o/ (ew London

i. 6acts

$. City in economic decline# city deelops

reitali;ation plan

(. 5riate pharmaceutical company# 5fi;er# was to build a new research facility as

part of the plan

*. 5laintiff?s land was condemned# though

it was in a nice# non,blighted area

ii. 5ublic Use

$7



$. The legislature gets to determine

whether or not this is good public policy#

whether this will benefit the public

(. 5ure transfer from priate person to

priate person is not public use buttransferring to a priate person does not

by itself mean that the ta-ing was not for

a public use

*. The fact that no public serice is being

proided does not preent this from

being a public purpose# which

constitutes a public use

4. liminating a social eil is a publicpurpose

8. conomic deelopment is traditional

goernmental function and therefore a

public purpose

iii. issent

$. 5ublic use is different from <general

welfare= public use is narrower and

therefore the power of eminent domaindoes not e2tend oer something with

merely a public purpose

(. The main purpose is to benefit 5fi;er#

with only incidental public benefits

i. Fouisiana response was to amend the F!

Constitution to forbid e2propriation e2cept for

when the land is blighted %adopted @?Connor

analysis'

4. Begulatory Ta-ings

a. Loretto

i. 6acts

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d. @nly (Q of the coal was lost# so

there was plenty coal left to ma-e

the company profitable

e. This is the modern analysis

con law devlin 2009

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