con law i outline redacted

8/10/2019 Con Law I Outline Redacted

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CONSTITUTIONAL LAW OUTLINE

I. CONSTITUTION’S TEXT, HISTORICAL CONTEXT, AND INTERPRETIVE METHODOLIGIES

A. Methods of Analysis: The Court has adopted several diverse methods of interpreting theConstitution. However, courts decide cases on the narrowest grounds possible.

1) Text : The Textual Method looks to the words in the Constitution as playing a central role inthe interpretive analysis, looking directly at the textual provision.

2) Original Intent : The Original Intent Method shares the same goals as the Textual Methodand seeks to learn the Framers’ original intent by looking to the debates and the FederalistPapers preceding the adoption of the Constitution.

i) Claims to discipline Judicial review

ii) District of Columbia v. Heller : The District of Columbia has a ban on handguns,and in addition prohibits them from being in the home unless they are disabled.Respondent Heller brings an action claiming that this complete ban violates the 2ndAmendment right to keep and bear arms. He applied for a license under the act, butwas denied despite being a policeman. Licenses available for 1 yr periods

a. Heller follows this → "we are guided by the principle that "[t]heConstitution was written to be understood by the voters; its words and

phrases were used in their normal and ordinary as distinguished fromtechnical meaning" – Doesn't allow for change of the times. We are fixedinto the social norms of when it was created

b. The Right Is Not Unlimited - “not a right to keep and carry any weaponwhatsoever in any manner wha tsoever and for whatever purpose”

i. Limits are “dangerous and unusual weapons” & “prohibitions on possession by felons, mentally ill, or carrying in sensitive places”

c. Varietiesi. "original intent" → discern the intent of the authors (Stevens

dissent) -- Relies on the original drafts from Madison who wrote

the Bill of Rightsii. "original public meaning" → discern the understanding of the

public (Court)1. Discerned by looking at dictionaries and literature during

the timeiii) Non-Originalism: the meaning of the Constitution may change over time, evolving

as social conditions and values changea. "Living Constitution"

b. "Translation" → translating the social intents into ones for the currentsociety

c. Says that originalism is doomed to failure

3) Constitutional Structure : The Constitutional Structure Method seeks to decide cases based

on: a) the Constitution’s maintenance of separation of powers or b) the Constitution’sfederalism framework. The Court will decide if a particular result is implicit in the structureof the Constitution.

4) History and Tradition : The History and Tradition Method looks at the historical backdroparound which a particular Constitutional provision was adopted. As far as tradition, the Courtmay grant protection based upon traditional societal needs.

5) Political Theory : The Political Theory Method may seek analysis based on “principles of ourdemocratic system.”



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6) Social Policy: (Fairness/Justice) : The Social Policy Method seeks to construe theConstitution in a light that creates sound social policy.

7) Precedent and Doctrine : The Doctrine Method focuses on the pattern and practice that hasworked and is largely Stare Decisis or the Rule of Precedent. The Court may wish to adhereto a previous decision. As Brandeis said, “Stare decisis is usually th e wise policy, because inmost matters it is more important that the applicable rule of law be settled than be settledright.” The court may also choose to revoke precedent. In ignoring precedent, the Court isfreer in Constitutional Law than other areas of law.

B. Historical Foundation: The Constitution came about after dissolution of the Articles ofConfederation. The Constitution is designed to simultaneously: a) strengthen government and b)weaken government.

1) Problems in 1787 : The Articles of Confederation, ratified in 1781, plagued the young countrywith several problems.

i) State Protectionism : In the Articles, there was no supremacy clause, no powerto tax and no power to regulate commerce. Problems arose because states“mucked” around with commerce instead of leaving it to the nationalgovernment

ii) Extreme Populism : There was a lack of protective property rights, and other problems such as states creating their own currency, which triggered inflation(which was good for debtors but bad for creditors).

iii) Uncertainty : There was a general feeling that the federal government wasincompetent, unable to govern and that there was a need for structure. Regionaldifferences mired the country in squabbling as autonomously-acting statesundermined and undercut the federal government.

2) Goals of the Constitutional Convention : The Framers brought two distinct notions to theConvention.

i) Limited, Enumerated Powers : Rather than living under the idea that thegovernment held all the power regardless, the Constitution a) weakened governmentin that it encompassed the idea that the people were actually giving power to thegovernment. The limited, enumerated powers b) strengthened government in thatthey were considerably broader than the power held under the Articles ofConfederation.

ii) Separation of Powers : Convention further established notion of separation of powers: one central government comprised of separate executive, legislative and

judicial branches.3) Federalists vs. Anti-Federalists : Two camps emerged with regards to the document.

i) Federalists: Pro-Constitution : The Federalists were comprised of men like JamesMadison and Alexander Hamilton who believed in the benefits the Constitutionentailed.

ii) Anti-Federalists: Anti-Constitution : The Anti-Federalists were led by men likeThomas Jefferson who believed in decentralized and smaller government; more



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“pure” democracy manifested by participation and not by just voting; a Constitutionthat could change often by successive generations; a more agrarian populace anddebt relief. (Jefferson, for example, was a tremendous debtor.)

II. JUDICIAL REVIEWJudicial Review is the power to review legislation/executive acts/regulations and declare such laws

unconstitutional. (Given by Marbury )

A. Theory of Judicial Review: Judicial Review was born with Marbury v. Madison. [ Marbury v.Madison (1803) : Marbury had been given a job as Justice of the Peace by outgoing President JohnAdams. Incoming President Thomas Jefferson’s Secretary of State, James Madison, refused to deliverthe commission. Under the Judiciary Act of 1789, Marbury filed suit in the Supreme Court for a writof mandamus directing Madison to deliver his commission. Held , Justice John Marshall reasoned: 1)Marbury did have a right to his commission; 2) Marbury did have a judicial remedy in that the Courtcan order the President to deliver the commission (but could not review political decisions); 3) the Actgiving the Supreme Court jurisdiction to decide such matters is unconstitutional. Marshall, did not getthe job.]

1) When an Act of Congress is Unconstitutional : The Court, as it did in Marbury, can rulethat a statute is unconstitutional when it violates the Constitution. [ Marbury : Held , JudiciaryAct violates Constitution because it grants powers to the Court not vested by the Constitution→ the 1789 Act authorizes an original action, but the Constitution does not ]

2) The Constitution Prevails : When a statute comes up against the Constitution, theConstitution, as supreme law, prevails.

3) The Judiciary Reviews : “It is emphatically the province and duty of the judicial departmentto say what the law is.” [ Marbury. ]

4) Review is Supreme and Exclusive Law of the Land : What the Supreme Court decides isenforceable; (though it may be difficult to enforce if the President or Congress are at odds.)Essentially, the Supreme Court is 1) the authoritative voice on the Constitution; 2) theExclusive Interpreter; 3) It can invalidate actions; 4) Compliance with Decisions can beconsensual. [ Cooper v. Aaron (1958) : Arkansas refused to enforce Brown v. Board ofEducation decision, claiming the law did not apply to the state. Held , Supreme Court is theultimate interpreter of the Constitution, law does apply to the state and is binding.]

5) Notes :

i) Case establishes that the federal courts may review1. Acts of Congress2. (Some) acts of the executive

ii) Congress lacks the right to expand the courts original jurisdiction under Art III, §21. "with such exceptions and regulations as Congress shall make" “In all other

Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such

Regulations as the Congress shall make.”2. The terms "ambassadors or public ministers" only pertains to foreigndignitaries

iii) Consequences1. Supreme Ct has a powerful check on Congress and Executive2. Ct can override preferences of majority citizens

B. Limits on Judicial Power : The Court is limited to only justiciable “cases or controversies.” Art III §2



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1) (Who?): A Party with Standing : Only a party with “Standing to Sue” may bring an actionover an issue to be decided by the Court. Additionally, the case must (usually) be appealed tothe Court (unless the Court has original jurisdiction). Certain factors can show standing.[Lujan v . Defenders of Wildlife (1992) : Wildlife organization sued Interior Department fornot following Endangered Species Act, curtailing their ability to observe wild animals in theirnative habitat. Held , The plaintiffs do not have standing to sue because they fail black letterlaw requirements: a) No injury in fact; b) No causation; c) No redressability.]

i) Injury in Fact : The plaintiff must suffer “concrete” harm, not “vague, uncertainharm .” Such harm can be “physical, economic or deprivation of a particular right.[Lujan ] An association can sue for non-monetary loss if any of its members can,as well.

1. Injury in fact does not include procedural irregularity, but harm. [ Lujan ,Concurrence .]

2. Two types of injuryi) Personal

i. If they could show that their school really isn't integratedii. Any person in the black race could sue if this was the

case!ii) Stigmatic

i. Though a stigma may be true, you have to show that itaffected you! The psychic effect is not an adequate injury,

but if it leads to another injury (if they applied and weredenied)

3. The Dimensions of injury: "Speculative" and "Imminent" Injuryi) Speculative

i. Los Angeles v. Lyons: choked by police and knockedunconscious, brings suit to injunct the use of chokeholds

by the police. Had standing for the damages, but not forchoking b/c unlikely he would be chocked again

1. RULE: YOU NEED STANDING FOR EACHCLAIM! (but no one would have standing here)

ii) Imminence

i. Lujan: denies standing because the members had only“some -day” intentions to visit the affected areas. Theasserted injury lacks “imminence.”

1. No Real Definition Given for “Immenence” 4. Associated Standing Rule → members of a corporation harmed

significantly enough to affect the organization [See Hunt v. WashingtonApple Advertisers]

i) An organization has standing if:i. One or more of a group’s members meet Art. III standing

requirements (injury, traceability, redressability)ii. Relief requested is germane to the organization’s purpo se

iii. Neither the claim asserted nor the relief requested requires participation of individual members

1.

For example, you can’t seek damages for injuryto a member’s property 2. Court can't regulate where the remedy would go

(goes to corp, but can't make it go to themembers)

ii) Causal Connection : The “But For” Test: would harm against plaintiff continue? →there must be a causal connection between the injury and the conduct complained of

1. Linda R.S. v. Richard D.: Mother alleged that a certain individual was thefather of her illegitimate child, that he refused to pay support, and that the



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district attorney refused to enforce art. 602 against him because illegitimatechildren were outside of the statute's scope

i) HELD: mother made an insufficient showing of a directconnection between the vindication in her interest in her child andthe enforcement of state criminal law → no standing

i. If found guilty, he would go to jail and not pay anyway2. Warth v. Seldin: Petitioners, various organizations and individuals, brought

an action against respondent town, and against members of respondenttown's planning and zoning boards. Petitioners claimed that respondents'zoning ordinances effectively excluded persons of low and moderateincome from living in the town

i) HELD: the facts alleged failed to support an actionable causalrelationship between respondents' zoning practices and petitioners'asserted injury

ii) petitioners were unable to demonstrate that unless relief from theallegedly illegal actions was forthcoming, their immediate and

personal interests would be harmedi. unlike cases where housing was intended for certain

income levels (public housing) 3. Duke Power Co. v. Carolina Environmental Study Group Inc: Appellant

power company sought review of a judgment from the United StatesDistrict Court for the Western District of North Carolina, which determinedthat appellees, environmental organizations and individuals who residedwithin close proximity to a planned nuclear power facility, had standing to

bring a claim for declaratory relief, and that the Price-Anderson Act,42U.S.C.S. § 2210 et seq., was unconstitutional

i) HELD: But for the act, the plant wouldn't be built!i. They had proof! Deposition had their statements saying

that they built because of the legislation

iii) Redressability : Even if the plaintiff sought relief they wanted, would they get the“state of the world they want?” → it must be likely that this i njury will be redressed

by a favorable decision.

iv) Constitutional vs. Prudential Standing: Prudential standing means the court ischoosing to allow at its own discretion. MUST SATISFY ALL!

1. Prudential (Discretionary) Standing Limitationsi) Bar on raising "third-party" rights

i. Exceptions [Singleton v. Wulff: refusal to extendMedacaid benefits to non-medical abortions. Physicians

bring the claim that it violates the rights of women to getabortions → court finds for exception & Art III standing (injury = no surgeries; traceability = no payment;redressability = changes if the law is changed)]

1. Special Relationships - Enjoyment of the right is

"inextricably bound up" with the activity of thelitigant [Doctor to Patient here → Doctorasserting his rights as well] AND

2. Obstacles - The ability of the third party to asserttheir rights [Women’s desire for privacy w/abortion and imminent mootness of claims - ifshe delivers the baby, no standing]

ii. Cases1. Barrows v. Jackson: White owner allowed to

raise rights of black tenants in defending breach



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of contract claim for breaking racially restrictivecovenant on home

a. Relationship → The plaintiffs desire tolease these people his land is bound bytheir ability to do so

b. Obstacles → They aren't parties to thecontract so no standing!

2. Craig v. Boren: Females could drink beer at theage of 18 but the men couldn't until they were21. Bartender brings suit

a. Relationship → ability to sell beer b. Obstacles → Court does not really

address this3. Gilmore v. Utah: Mother sued the state on her

son's behalf. He was to be executed. He didn'twant her to.

a. Mom has no Art III Standing! b. RULE: You must have Art III standing

to assert claims of third partiesii) Bar against generalized grievances → an injury undistinguished

amongst a group of people [United States v. Richardson: Plaintiffsued Congress. He alleged that public reporting under the CIA Actof 1949 violates Article I, s 9, cl. 7 of the Constitution – thestatement and account clause; court finds no standing]

i. Really based on one's status when their suing →Richardson claims status as a tax-payer, if claims aresuing for rights of citizenship or tax-payesr, then probablyGG’s b/c identical injury (not knowing) amongst all tax

payers/citizens1. Frothingham v. Mellon (comparitively minute

affect on taxpayer insufficient to supportstanding) → brought claim that gov. spendingmoney in the way that is unconstitutional →

court says no standinga. Why deny the taxpayer? → everyone

could sue! Should be handled through political methods!

2. Exception – Challenges that Congress acted beyond the scope of constitutional limits

a. Spending programs → Flast v. Cohen: plaintiff's invoking status of taxpayerschallenge federal expenditures allegedlyin support of religious schools forced tosupport religious organizations withwhich they may have disagreements

b. Transfer of property → no taxpayer

standing to challenge transfers toreligious organizations (under the property clause) [See Valley ForgeChristianCollege]

c. General Appropriations to Executive →no standing to challenge funding (nocongressional direction on spendingfrom Executive gen appropriations)

d. Tax Credits → no standing to challengetax credits for contributions to orgs that



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fund religious schools (a tax credit, nota spending problem)

ii. Cases 1. Ex Parte Levitt: interest of petitioner as a citizen

and member of the Supreme Court bar wasinsufficient to show direct injury from allegedlyunconstitutional appointment of Hugo Black tothe Supreme Court

2. Schlesinger v. Reservists Committee to Stop theWar: plaintiff challenges service in the armedforces of several members of Congress (seeks to

prohibit). Says that violates IncompatibilityClause → interest is held by all citizens, no realinjury.

a. Argument that no one would havestanding is not sufficient grant forstanding

3. FEC v. Akins: Congress passes a law givingthem a right to the information and another thatsays any citizen can bring a suit to challengeanything unlawful under the federal election law

a. RULE : Congress can grant standing instatutes for otherwise generalizedgrievances (bypassing prudential reqs)

b. Distinguished from Lujan → not “someday” intentions, information is tangible!

c. Distinguished from Richardson:Richardson does not have prudentialstanding! No unique right or need forthe information + Congress alreadygranted the right in the statute

iii. Notes1. What constitutes a generalized grievance?

a. A law that no one could practicereligion in the US? → A right that is

personal to you! So there is standing. InRichardson, it is not a right that is

personal to him (affects everyone thesameway). He does not make this claim

b. A law to flood the state of New York?Standing. Everyone is not affected thesame

2. 2. Constitutional (Art III – Non-Discretionary) Standing Limitations

i) Party raising claim must allege and prove the party has suffered a(What do they have to prove for standing)

i.

Personal Injury that is1. Fairly traceable to the Δ's conduct 2. The injury must be likely to be redress by

favorable decision3. Example: A city ordinance prohibits the display of murals on the exterior

of buildings in an historic district unless approved by the local historic preservation officer. Artie painted a mural and sold it to a Bibi, who owns anightclub in the historic district. The historic preservation officer concludedthat the mural could not be displayed on the exterior of the nightclub. Artie



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sues the city, alleging that the ordinance violates his First Amendmentrights and those of Bibi

i) Standing? Injury in fact → no cognizable interest, once he sold themural, the right to display was conveyed to the purchaser so NOSTANDING! [See Burke v. City of Charleston]

ii) Court does not addrerss whether he can raise Bibi’s 1 st Amend.rights

v) Allen v. Wright: Parents of black public school children brought suit against theInternal Revenue Service (”IRS”), alleging that insufficient denial of tax -exemptstatus to racially discriminatory private schools interferes with their children’s abilityto receive an education in public schools.

1. ISSUE: Does the harm alleged by the respondents fulfill the constitutionalrequirement of standing?

2. RULE: Article III standing requires that a plaintiff allege a harm directlytraceable to specific action on the part of the defendant.

3. HELD: P’s lac k standingi) The injury is "beyond any doubt, not only judicially cognizable

but, one of the most serious injuries recognized in our legalsystem"

ii) The court says the alleged injury is not "fairly traceable" to theIRS's enforcement policies. The link is too attenuated

iii) If could show personal injury, then maybe4. Challenge is not the law, but the execution/enforcement of the law/guideline

i) Challenge would run afoul the structural principle that "ART IIassigns the President and not to the courts a duty to take care thatthe laws be faithfully executed" [ Marbury ]

ii) RULE : Presidential actions are justiciable only when they arenon-discretionary (by law) and not discretionary

5. Simon v EKWRO: organizations challenged an IRS Ruling which permittedsome hospitals to deny admission to non-emergency indigent patientswithout jeopardizing their tax-exempt status. Claim rule encouraged non-treatment. (suggests suits btwn tax payers and IRS can have some 3 rd partychallenges)

i) HELD: P’s failed to establish that the denial of treatment wasfairly traceable to the revised revenue ruling

i. Purely speculative whether denials are attached to the ruleor hospital decisions made w/o tax implications (no causalconnection)

ii) Distinguished: "The [Allen] complaint suggests no substantiallikelihood that victory in this suit would result in respondents'receiving the hospital treatment they desire"

i. respondents claim no injury dependent on taxpayers'actions: "[t]hey claim indifference as to the course privateschools would take."

vi) Massachusets v. EPA : In order to protect the State’s interest in the land on the coast,the State of Massachusetts petitions the EPA to regulate gas emissions from cars.

There is much research to show such emissions add to green house gases that effector cause global warming which in turn affects the water on the coast. The EPAdenied the request. Now the State of Massachusetts is suing the EPA for notenforcing the Clean Air Act.

1. Distinguished from Allen v. Wright → State versus individual; Congresshas provided a procedural right to persons in the position of Mass.

2. Congress says that anyone can challenge and therefore gives the right forthe state to do so → has the power to define injuries and articulate chains ofcausation that will give rise to a case or controversy where none existed

before within Art III bounds



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3. Held: There are incremental changes, doesn't have to fix it all at once!("likely to redress") – diffivulty = it’s a global problem

vii) Notes 1. From Allen and Massachusetts, obstacles to one’s ability to obtain services

in a non-discriminatory manner and damages to property are injuries thatare “seen” as such by the courts – they are “cognizable” injuries that willsupport standing

2. Likewise, loss of economic opportunities or “pocketbook” losses are readilyacce pted as “injuries” by the courts

3. Less tangible hurtsi) Deprivation of the experience of viewing an endangered species in

its native habitat [See Lujan v. Defenders of Wildlife]ii) Deprivation of access to information

i. It is a cognizable injury - absent congressional action tocreate the right to seek the information, it's doubtful thatthe court would treat this as a cognizable injury [SeeAkins v. FEC → AIPAC failed to register expenditures toand on the behalf of federal candidates b/c they believedthey fell within an exception to the statute]

iii) Being subject to a racially gerrymandered system of representationi. Cognizable? Yes if you live in the jurisdiction. Seems odd

because they are affected by the gerrymander [See U.S. v.Hays → State's congressional redistricting plan waschallenged by the voters, only those personally affectedhad standing, but they couldn’t live there b/c ofgerrymander]

2) (What?): Only Legal Questions are Reviewable : The Court can only review legalquestions, not political acts that are within Presidential or Congressional discretion.“Political” does not mean political issues, but issues that are to be decided with finality by oneof the other branches [Roots in Marbury ].

i) Political Question Doctrine: The factors to be considered by the court in

determining whether a case presents a political question are (may have one or moreof the following):

1. Is there a textually demonstrable constitutional commitment of the issue to acoordinate political department (i.e. foreign affairs or executive war

powers)? [See Nixon v. US] OR2. Is there a lack of judicially discoverable and manageable standards for

resolving the issue? [See Powell v. McCormack] OR3. The impossibility of deciding the issue without an initial policy

determination of a kind clearly for nonjudicial discretion. OR4. The impossibility of a court’s undertaking independent resolution without

expressing lack of the respect due coordinate branches of government. OR5. Is there an unusual need for unquestioning adherence to a political decision

already made? OR

6.

Would attempting to resolve the matter create the possibility ofembarrassment from multifarious pronouncements by various departmentson one question?

ii) The “dominant factors”1. “the appropriateness …of attributing finality to the a ction of the political

departments” [See Nixon v. US] and2. No “satisfactory criteria” for judicial decision [See Powell v. McCormack]

iii) Equal Protection as Legal Question : Equal Protection of voters is a legal question.[Baker v. Carr (1962) : Voters in Tennessee challenged the state legislature’s failureto re-apportion the Tennessee General Assembly in sixty years; they claimed the



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legislature’s failure violated the equal protection clause by “debasement of theirvotes.” Held , the voters ’ claim was not a nonjusticiable “political” question. EqualProtection Clause of 14 th Amendment (well developed and familiar judicialstandards) , superseded State gov. involves politics but isn’t a “political question” ]

iv) House Deciding Qualifications as Legal Question : The House’s setting ofqualifications for its members is a legal question. [ Powell v. McCormack (1969) :House member passed all Constitutional qualifications for office but was denied seat

by House because of alleged embezzlement and perjury. Constitution allowsexpellment by majority vote for House members. Held , Allowing House todetermine for itself the qualifications of its members was not a political question, buta constitutional question and was thus justiciable.]

v) Foreign Affairs as Political Question : Foreign Affairs if a political question.[Goldwater v. Carter (1979) : Senator Goldwater challenged President Carter’streaty with Taiwan; Plurality , The President’s actions on foreign affairs is a politicalquestion, the country must have a single voice on foreign affairs.]

vi) Impeachment as Political Question : Impeachment is not a legal question. [ Nixonv. United States (1993) : Federal judge in Mississippi impeached for high crimes andmisdemeanors, tried by Senate committee, convicted by entire Senate, challengedthat he was not tried by the full Senate; Held , “Nixon’s argument would place finalreviewing authority with respect to impeachments in the hands of the same body thatthe impeachment process is meant to regulate.” Polit ical if: a) there is a textuallydemonstrable commitment to other branches; b) lack of judicially discoverablestatutes. Constitution imposes sole power of impeachment to the senate]

3) (When?): Ripeness and Mootness : The party’s claim must also pass a test of ripeness andmootness – whether claim has been brought at right time and whether legal redress can begiven.

i) Ripeness : Ripeness requires that the plaintiff show that there is an adversarialsituation that actually exists. This can be shown through the fact harm that has

happened. Generally addresses the timing of review. Is li tigation premature ? (is thethreatened injury speculative ? Ripeness (unlike standing) usually associated with achallenge to a law (or administrative rule) before any enforcement actioncommenced)

1. Basic question: Is it unfair to require a person to wait until enforcementaction is taken against them before the offending law may be challenged?

i) The Imminence of the Law2. Two part inquiry (Both elements req’d)

i) Are the issues to be litigated "fit" for judicial resolution? ANDi. If the answer to the question is a question of law (purely

legal issue) then it is "fit"!ii) Would denying review impose hardship on the party seeking

review?

i.

Should be immediate obligation or court might find anabsence thereof3. Cases

i) Poe v. Ullman: State Statute prohibits the use of contraceptivedevices and the giving of medical advice in the use of suchdevices. 3 P’s including the doctor bring suit. The law has never

been enforced! Contraband is regularly exchanged over the counteri. RULE : A penal statute is not ripe for constitutional

challenge unless it is enforced by the state enacting thestatute (State obviously wasn’t worried about it)



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ii) Abbot Laboratories v. Gardner: FDA creates rule to havemanufacturers of drugs put the generic name of the drug on thelabels! They want you to know that the generic is equivalent!

i. Two Part Inquiry 1. Fit → Question is: Whether the statute was

properly construed by the commisioner torequire the established name of the drug to beused every time the proprietary name isemployed? That question will not vary with thefacts

2. Hardship →a. The assumption has to be that the FDA

is adamant about enforcing this nowwhich makes the case imminent!

b. "direct effect on the day-to-day businessof all prescription drug companies"

i. Will tarnish the reputation ofthe company

ii. Either they must comply therewill be enormous costs throughrecalls and such and if not,they risk persecution

ii) Mootness : Mootness requires that the plaintiff show that there is an interestthroughout the litigation in need of resolve. Generally, like ripeness, involves timingof litigation

1. Basic question, which may arise at any time in the litigation, is there acontinuing dispute among the parties?

i) Linked to prohibition on advisory opinions2. Examples

i) Criminal defendant or civil plaintiff dies before judgment (even onappeal)

ii) Parties settleiii) Challenged law is repealed

3. Exceptionsi) Wrongs capable of repetition yet evading review (short-term

injuries that can recur and evade judicial review)i. Moore v. Ogilvie: Prerequisites to getting a nominee on

the ballot for elections. At time of review, the electionwas over. Was inevitable that they will have to face itagain in the next election

ii. Roe v. Wade: Pregnant women challenges Texas law prohibiting abortion. At the time of review, she was nolonger pregnant

ii) Voluntary cessation of allegedly unlawful conducti. Ex: A company discharging more waste than allowed by

law, case is brought, but they change their process. They

could do it again! Could be found moot if permits weresurrendered or some other hurdle comes where they canno longer physically do this

iii) Class action law suitsi. United States Parole Commission v. Geraghty: P,

Geraghty, a federal inmate, brought suit against the D.Plaintiff had twice been denied parole from a federal

prison. Besides his own suit he also sought certification ofthe suit as a class action on behalf of all federal prisonerswho are or will become eligible for parole.



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1. RULE: A class action may survive, even if thenamed Plaintiff’s case becomes moot beforecertification of the class. The absence of thenamed plaintiff does not destroy the format ofthe dispute as appropriate for judicialdetermination

4) (Where?) : Geographic and Hierarchical dimensions influence judicial review.

5) No Advisory Opinions : The Court cannot issue opinions which “advise” or that consider justa hypothetical situation.

i) Two types1. Actions in which there is no actual dispute beetween parties for the Court to

resolvei) Opinion of the Justices: Gov asking questions on how to act where

the conflict arose between France and England2. The relief requested by a party will not have final and binding effect on the

litigantsi) Judicial decisions subject to approval or revision by executive

officialsii) Hayburn's Case 2 U.S.: Revolutionary War veterans to file pension

claims were permitted by congress.ii) Plaut v. Spendthrift Farm: Supreme Court changes law (shortens statute of

limitations) that federal courts were using. Congress’s amendment requires cases toresume prosecution after judgment has been rendered

1. Legislation purports to "revive" lawsuits previously dismissed by federalcourts by changing applicable stature of limitations retroactively

2. If our opinions are not the final opinions on the matter, then they serve asan advisory opinion, and we prohibit those

iii) Declaratory Judgement ~= Advisory Opinions!1. Declaratory Judgement → A binding judgment from a court defining the

legal relationship between parties and their rights in the matter before the

court with no enforcement.2. Distinguishing factor → An actual legal issue!

iv) Notes 1. Two types of Consitutional Challenges

i) "As Applied" - party seeks an exclusion from the operation of alaw on grounds that, as applied to the party, the law isunconstitutional. The law may still pass in other applications

ii) "Facial" - Party claims that the law is unconstitutional in allapplications

i. Differs in scope of the judgement, "As applied" meansthat it stays in effect, Facial challenge is not

6) Notes

i) "Constitutional and Prudential Justiciability Doctrines1. Constitutional doctrines2. Common law based = prudential

ii) Congress can override prudential doctrines, but cannot override constitutional limits

C. Political control of the supreme Court's Jurisdiction1) Appointment: Art II, §2, cl. 22) Impeachment: Art II, §4, Art I, §2, cl.5; Art I, §3, Cl.6-73) Constitutional Amendment: Art. V



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4) Congressional Control over the Supreme Court's Jurisdiction: Art III §, cl. 3:i) "with such exceptions, and under such Regulations as the Congress shall make"ii) Art I, §8 cl. 9, Art. III, § → congress given power to structure the judicial system! iii) Ex ception s Clau se - Congress can reduce Supreme Court’s jurisdiction (if it was

granted by the constitution in the first place) within their constitutional limits1. Ex Parte McCardle: After writing a series of articles that were highly

critical of Reconstruction, federal officials arrested McCardle under the Actof 1867. McCardle contended the Act was unconstitutional in providingmilitary trials for civilians and claimed his prosecution violated provisionsof the Bill of Rights (Act of 1789), including the First, Fifth, and SixthAmendments of the United States Constitution (Constitution). Before theSupreme Court ruled on the merits, Congress passed a law repealingSupreme Court appellate review of writs of habeas corpus. Sought Writ ofHabeas corpus

i) Had been repeated efforts by various interests for the SupremeCourt to review the constitutionality of the Reconstruction Act.McCardle files under one statute that allows his to seek habeascorpus, and Congress knows what's going on and repeals the Actthat allows him to sue. Congress trying to keep the court fromassessing the Constitutionality of the Reconstruction Act.

ii) After the Supreme Court had already began oral arguments,Congress adopted a rider to an inconsequential tax bill that wouldmake the Supreme Court not have jurisdiction over the McCardlecase.

iii) Congress was afraid the Supreme Court ruling would beobstruction or invalidation of Reconstruction.

2. General Issue - "Jurisdiction Stripping"i) Congress does not have the authority to strip the authority to hear

certain kinds of casesii) Congress would effectively prevent the Supreme Court from

protecting constitutional rights! Unresolved politicallyiii) Could limit the substance of the law (restricting the precedence

"The Constitution Restoration Act of 2005") or put a punitive

component in3. Klein v. United States: During Reconstruction Congress enacted a law

permitting persons whose property was seized during the civil war torecover their property or compensate them if given a presidential pardon.The challenged legislation makes pardons inadmissible as evidence that theclaimant had not aided the enemy

i) Pardon is proof that claimant aided enemy (attempt to overrulePaddleford) → Gov. Wins

ii) Court Holds the law is not an exercise of Congress's "exceptions" power

i. Violates separation of powers by telling the S Ct how todecide a particular set of cases

1. Impairs the effect of a pardon and thus infringing

the constitutional power of the Executiveii. IF it simply denied the right of appeal in a particular classof cases then it would be an "exception"

4. Robertson v. Seattle Audubon Society: Congress passes legislation thatreferences two pending cases challenging decisions of the Bureau. Congresssaid so long as BLM manages the lands in accordance with two new statute

provisions.i) Court says Congress is not directing the outcome of cases pending

before the court, but instead, was simply changing the law



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ii) DISTINGUISHED FROM KLEIN because the change of the lawfalls within the authority of Congress (vs. saying what a pardonmeans and ruling cases) in Art IV §3

iv) Congressional Control of Lower Federal Court Jurisdiction Art III §1 power toordain and establish inferior courts

1. The greater power to create something includes the lesser power to restrictwhat that creation may do (Sheldon v Still)

III. NATIONAL POWERS IN THE AMERICAN FEDERAL SYSTEM: FEDERALISM

A. Review of State Court Rulings by the Federal Courts:

1) Federal Jurisdiction : If a federal question emerges in state court, and goes through the statesupreme court, the Supreme Court has authority to review. [ Martin v. Hunter’s Lessee(1816) : Plaintiff Martin wanted land back, had been taken by Virginia and given to Hunteraccording to a Virginia statute which allowed for seizure of land held by British loyalists;statute was in conflict with Federal Treaty ending American Revolution, Virginia SupremeCourt ruled for Hunter’s Lessee, Supreme Court reversed. Held , The decision of the state’shighest court could be reviewed by the Supreme Court because a) § 25 of the Judiciary Actgranting Supreme Court power to review was constitutional; b) case concerned a federalquestion: whether the statute violated the Federal Treaty.] [ Cohens v. Virginia : State

prosecuting two men for selling District of Columbia lottery tickets in Virginia aftercongressional act permitted, Virginia is a party, Virginia claims that Supreme Court only hasoriginal jurisdiction, not appellate because the state is a party. Held , Supreme Court rules forVirginia against the men, however it also asserts jurisdiction, “The judicial [power] extends toall cases arising under the constitution or a law of the United States, whoever may be the

parties.” → distinguishing factor - Cohens involves a case in which the state is a party →much more direct action into state sovereignty]

i) Inhibits State Abuse : Leaving Federal Questions up to the Supreme Court inhibitsabuse. [ Martin : Held , “State attachments, state jealousies, and state interests, mightsometimes obstruct or control…the regular administration of justice.”]

a. Cohen

i. Establishes a federal forum for vindication of constitutional rightsand federal interests when state courts might be less hospitable.(State court hearing a case where the state is a party)

ii. Solidifies the Court’s role in constitutional interpretation

ii) Allows Uniformity : Leaving federal questions up to the Supreme Court bringsuniformity. [ Martin : Held , “If there were no revising authority to control these

jarring and discordant judgments, and harmonize them into uniformity, the laws, thetreaties and the constitution of the United States would be different in differentstates.”]

a. Political Principlesi. State courts are more prone to political influence (elected vs. life

terms)ii. State courts may be biased and favor state over federal interests

iii) Notes on Martin v. Hunter's Lesseea. State courts are subject to the jurisdiction of the Supreme Court under Art

III, §2 → "The Judicial Power shall extend to all Cases, in Law and Equity,arising under the constitution, the law of the United States…"

b. “Structural” principles (arguments for state sovereignty) i. Supreme Court review of state court judgments is a serious

infringement of State sovereignty



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ii. The Constitution permits the national government to act upon the people, not the States

iii. State courts are not “inferior” to federal courts; they are institutionsof separate sovereigns over which the federal courts have noauthority (Strong states rights argument by Virginia)

B. Federal Government Power under the “Necessary and Proper” Clause :

1) The “Necessary and Proper” Clause : The “Necessary and Proper” Clause (Art. I, § 8, cl.18), “Congress shall have Power To make all Laws which shall be necessary and proper forcarrying into Execution the foregoing Powers…”, is not a specific power but a powerenabling Congress to select the best route to achieve Congressional goals.

i) Express Powers : Express powers are the powers specifically enumerated in theConstitution, such as building roads and post offices.

ii) Implied Powers : Implied powers are not enumerated but given to Congress, such asdelivering the mail.

iii) Constitutional provisionsa. Art I, §1 → all HEREIN granted legislative power is given to Congress

i. Art I §8 → power for taxes, borrow money, regulate commerce ii. Art I §8 → can make necessary and proper laws under Const

iii. Art VI cl 2 → laws shall be the supreme laws of the land iv. Amendment X → power not delegated by Const. is left to the

statesiv) The rule [See McCulloch v. Maryland]:

a. “Let the end be legitimate, let it be within the scope of the constitution ” →is the object of the legislation consistent with the powers conferred(attempting to regulate commerce)?

b. "all means which are appropriate which are plainly adapted to that end butconsist with the letter and spirit of the constitution are constitutional" → isthe legislation conducive to a constitutional objective?

c. "which are not prohibited" → is the legislation of the type found in textuallimitations on congressional power - Art I §9, Bill of Rights?

2) Definitive “Necessary and Proper” Means : Different meanings of “Necessary and Proper”appear throughout the Constitution, the “Necessary and Proper” clause has been interpreted tomean a legitimate ends to achieve a Congressional power. [ McCulloch v. Maryland (1819) :Congress chartered the Bank of the United States, a national bank designed to regulate themoney supply, generally a pre-cursor to the Federal Reserve, Maryland excessively taxed theBank, the Bank refused to pay. Held , Maryland’s tax on the bank was unconstitutional,Congress has very broad powers to select the means to implement its powers (taxing,spending, borrowing, national defense), Congress has power under the Constitution toincorporate a bank pursuant to the Necessary and Proper clause; Court says that the collective

people (all states) voted on how this should be carried out when they made the constitution –

the supreme law of the land. No taxation without representation]i) “Necessary and Proper” Pretext Warning : Though Congress may implement its

powers through “Necessary and Proper” means, it cannot enact a law under the pretext of exercising one of its powers if Congress does not indeed have thatenumerated power.

ii) Deference : Court owes deference to Congressional judgements about what isnecessary (risk of treading on legislative ground)

a. Cautions that should congress pass laws for the accomplishment of objectsnot entrusted to the government, then they have to call it unconstitutional



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C. The Affirmative Powers of the Federal Government:

1) The Commerce Clause : The Commerce Clause (Art. I, § 8, cl. 3), “Congress shall havePower to regulate Commerce with foreign Nations, and among the several States, and with theIndian Tribes.” The Court’s interpretation of “commerce” can be divided into three phases.

i) The 1824-1936 Commerce Clause : Prior to 1937, “commerce” w as considered tomean an interstate activity. [ Gibbons v. Ogden (1824) : Gibbons held a federallicense to operate a steamboat between New York and New Jersey, Ogden had alicense from New York, Ogden wanted Gibbons to stop. Held , The US grant oflicense to Gibbons was a legitimate exercise of the commerce clause because itconcerned navigation, Congress can act in such a way, thus preempting the NYgrant.]

a. Items in Interstate Commerce : An item in interstate commerce,essentially moving across states lines, is commerce. [ "Morals"Legislation - Champion v. Ames (1903) : Held , Congress can regulate theinterstate mailing of lottery tickets. The court isn't concerned with

protecting commerce, but more so the harm to public morals. Congressacting on a sub ject that states don’t have the power to (interstatecommerce).] [ Hammer v. Dagenhart (The Child Labor Case) (1918) :

Held , Interstate shipping of textiles produced by child labor could not beregulated because the items were textiles and not a finished product;“manufacturing” is not “commerce”; Ct now invokes 10 th Amend, reservingthis power for the states.]

b. Activities Directly Connected to Interstate Commerce : Activities with adirect connection could be regulated. [ United States v. E.C. Knight Co . (1895) : Held , Congress can regulate one person’s buying of 98% of nation’smanufacturing capacity for sugar because manufacturing of sugar only“incidentally and indirectly” affected interstate commerce. Manufacturing ≠Commerce]

c. Instrumentalities of Interstate Commerce : An instrumentality ofinterstate commerce could be affected. [ The Shreveport Rate Case:Houston East & West Texas RY v. United States (1914) : Held , Congresscan regulate imposition of intrastate rail rates (inside Texas) because it is aninstrumentality of interstate commerce (between Texas and Louisiana) - therates for intrastate shipment have a "close and substantial" relationship tointerstate shipments]

d. Stream of Commerce Doctrine: Federal government has the authority toregulate commerce from its point of origin to its point of termination [Stafford v. Wallace (1921) : court upholds the packers and stockyards actof 1921, which authorizes the Secretary of Commerce to regulate

stockyards. The stockyards are in the "current" of interstate commerce. Thiswould stop states from having any power over intrastate power → too muchfederal power]

e. Supreme Court Thwarts New Deal (Narrows Definition): Whenintrastate commerce has a substantial economic effect on interstatecommerce, Congress may not regulate the activity pursuant to theCommerce Clause – back to E.C. Knight [“Sick Chicken Case” -Schechter Poultry Corp. V. U.S. (1935) : Congress imposed minimumwages and prices upon the poultry industry. Schechter, a poultry wholesaler



17

sold only to NYC retailers, and bought from NYC market, but nearly all poultry came from out of state. Held Local activities that are at the end ofthe “stream of commerce” (chickens raised v handled) do not have a directeffect upon interstate commerce . Carter v. Carter Coal Co. (1936) : Statuteimposed maximum hours and minimum wages for coal miners. Nearly allthe coal produced would be sold in interstate commerce. Held the Act seeksto control certain activities that are not “commerce”; the Act also affectsintrastate commerce to a large degree. Congress may not regulate activitythat does not have a direct, logical, and linear link to interstate commerce.]

ii) The 1937-1995 The Commerce Power, the Tenth Amendment, andConstitutional Change : Post 1937, Court expanded “commerce.”

a. Close and Substantial Relations Test : [NLRB v. Jones & Laughlin SteelCo. : the National Labor Relations Board charged the Jones & LaughlinSteel Co. with discriminating against employees who were union membersunder the National Labors and Relations Act of1935 Held law wasnecessary to prevent impediments to interstate commerce (though indirectlystrikes and riots effect commerce)]

b. Channels and Instrumentalities of Interstate Commerce : Congress can,essentially, regulate the channels of commerce and the way those items are

produced – will not question their motives (not affected by 10 th Amend.)and may choose reasonably adapted means to an end (Necessary and ProperClause) [ United States v. Darby (1941) : Georgia lumber manufacturerchallenging prohibiting shipment of lumber, he violated wage andemployment law. Held , a) Congress can regulate interstate shipment forany reason whatsoever; b) Congress can regulate intrastate goods basedupon the labor conditions by which goods were produced effectivelyoverturning Hammer .]

c. Activities with a Substantial Effect on Interstate Commerce : Congresscan regulate activities with a substantial effect on interstate commerce.

[Wickard v. Filburn (1942) : Held , Congress can regulate personal growthof wheat because it had a substantial, albeit trivial, effect on interstatecommerce.] CRIME → [Perez v. United States (1971) : Held , Congress canregulate loan-sharking activities, they involve credit and are often part oforganized crime, which is interstate, also.] CIVIL RIGHTS → [Heart ofAtlanta Motel v. United States (1964) : Held , Congress can regulatehotel’s refusal to serve Africa n Americans through Title II of the CivilRights Act, thus African Americans would travel less, interstate commerceaffected.] [ Katzenbach v. McClung (1964) : The restaurant was not closeto a highway, served mostly locals, and did not advertise out of state.However, 46% of its food was purchased from a supplier who bought thefood outside of the state. Takeout only service for blacks, but employs 2/3

blacks Held , Congress can regulate restaurant’s discrimination against

African Americans through Title II, enough food (46%) was purchasedfrom out of state, thus interstate commerce] LAND USE CONTROLS →[Hodel v. Indiana (1981) : Regulating strip mining and reclamation ofmined land Held A court may invalidate legislation created under theCommerce Clause in only two situations. First, when there is no basis forCongress to rationally find the activity affects interstate Commerce. Second,if there is no reasonable relationship between the regulatory means and theends.]



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a. Not an essential element of a largersystem of economic regulation

3. No "jurisdictional element" that affects interstatecommerce → jurisdiction of congressional

power4. Link is too actuated → in no sense economic

b. Substantial Effects Test : Congress must make findings to demonstrate theactivity’s substantial effect on IC. [ United States v. Lopez (1995) :Congress passed the Gun Free School Zones Act, prohibiting guns in schoolzones. Held , Gun control is not economic activity. In order to push thelimits of the Commerce Clause, the commercial activity must be a)“economic” in nature or the regulation of the activity must be “an essenti al

part of a larger economic activity;” b) if the phrase “economic” is expandedto cover noncommercial activity, it will be viewed with a “fataldisposition.” Dissent , Congress had a “rational basis” for deciding that theactivity affected IC.] [ United States v. Morrison (2000) : Congress passedthe Violence Against Women Act, allowing a new civil cause of actionagainst “a person who commits a crime of violence motivated by gender.”

Held , “Gender -motivated crimes are not economic activity ” so nosubstantial effect! Dissent , Congress provides findings, not anti-federalism

because states want this regulation.]a. TEST: The Commerce Clause will support federal regulation of

commercial or economic activity which has a substantial effect oninterstate commerce or which in the aggregate has a substantialeffect on interstate commerce, but the effects of noneconomicactivity can not be aggregated this way in order to fall underCommerce Clause power. Relevant Questions:

i. The nature of regulated activity: Is the regulated activityeconomic or not?

1. If the court concludes the regulated activity isnot economic, the government has a steep hill toclimb. If it’s not an economic activity, there’s no

basis for aggregating it.ii. Connections between the regulated act and interstate

commerce: is there a substantial effect?1. The arguments become harder to make as

connections between the factors and the case athand get too broad, tenuous, speculative.

iii. “Jurisdictional element:” Does the text of the law draw aline btwn the activity and commerce?

1. When Congress regulates a non-economic,noncommercial local activity, the Court will belikely to uphold the regulation if the statutecontains a jurisdictional element (factor two) thatrequires a connection to interstate commerce be

shown in each individual case where the statuteis appliediv. The presence or absence of congressional findings

1. Not determinative (they were present inMorrison, but absent in Lopez), but suchfindings may help to demonstrate that the localactivity being regulated has a substantialeconomic effect on interstate commerce.

b. RULE : No aggregation for non-economic activities [See UnitedStates v Morrison]



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i. Congressional findings: Congress isn’t required to makefindings, but court will examine them.

c. Notesi. How is VAWA different from the Civil Rights Act

considered in McClung and Heart of Atlanta Motel1. Congress is sweeping in too broad a range of

activities to sweep under the commerce clause2. Civil Rights cases had to prove that they catered

to interstate commerce with their foodii. Morrison Distinguished from Lopez

1. Not sure that the states could handle this problema. Who's arguing for the legislation? (Was

the state lobbyists → probably went tostate first and they couldn't get it done,here it is lobbyist for women's rights)

iii. Common between Morris and Lopez1. Both regulate non-economic activity2. Nether statute includes a "jurisdictional element"

a. Distinguishes from the Civil Rightscases

3. Neither is part of a "larger regulation ofinterastate commerce" - distinguishes Wilber

4. U.S. v. Dorsey → Challenged the amendedversion of the Gun Free School Zones Act,which provides: "it shall be unlawful for anyindividual knowingly to possess a firearm thathas moved in or that otherwise affects interstateor foreign commerce at a place that theindividual knows, or has reasonable cause to

believe, is a school zone"c. Gonzales v. Raich: Challenges the Controlled Substances Act, which

prohibits the manufacture, distribution, or possession of marijuanaa. HELD: Application of the Act to plaintiffs may be sustained as a

necessary and proper means of regulating interstate commerce incontrolled substances, like marijuana [Wickard Wheat and Perez]

b. RULE : Applies the "rational basis standard" (revived)i. Distinguished: Court here is not regulating the "class" →

Congress has discretion to define classes (courts givedeference)

c. Distinguishing Lopez and Morrisoni. The overall activity the court is regulating is traffic (sale

of drugs) - "quintessentially economic"1. We didn't know that the act intended to regulate

commerce on the face of the statute, but here wecan

ii. The prohibition on possession, production and

distribution of marijuana is part of a larger regulatory program, the Controlled Substances actd. RULE: regulation includes the power to prohibit commerce of a

particular commodityi. ACA places a new restriction on Congress

1. RULE: Power to regulate does not include power to create (forcing people to buy healthinsurance)

d. Hypo: Challenge to an application of the Endangered Species Act → Makesit a crime to "take" any species listed as "endangered" by the DOI. The term



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"take" has been defined to include "significant habitat modification thatinjures or kills an endangered species" → Protect a fly found only in an 8square mile area, has no known economic value. Hospital tried to build,DOI seeks to enjoin. It argues that the ESA cannot constitutionally beapplied to its activity because that would exceed Congress's power underthe Commerce Clause

a. Analysis →i. Lopez to check the channels of interstate commerce

1. Channels? No2. Instrumentalities or Persons or Things?

ii. "Substantially Affect"? Probably here1. Jurisdictional element?

a. Is there effort by congress requiringgovt to prove interstate commerce toshow they intended it by the statute

2. "economic or non-economic activity"a. Aggregation has substantial effect on

interstate commerce (it's economic) b. Wickards aggregation principle

i. Trick → have to go to thelarger class of endangeredspecies!

ii. Not clear what the answer isc. What's the appropriate "class" to

analyze? Flies, or endangered speciesi. Endangered species is easy

ii. Fly is harder (creativeargument if there's a touristfollowing)

b. Ex. Instead it's a person who rides ATV in the critical area. Is prosecution constitutional? No.

i. Court said class was endangered species as a whole and iseconomic activity and sustained under the "substantial

effects test"ii. The gun case is no longer a "substantially effects" case →

regulating things in interstate commerceiv) Commerce Clause Flow Chart : Ways Congress can direct state behavior:

Does the Law Regulate Go to 10 th Amendment Casesthe State Itself? Yes

No

Does the Regulated Activity Law is Constitutionalor Product Directly Affect IC? Yes

No

Is there a Substantial/Indirect Law is UnconstitutionalEffect on IC (Individual No Aggregation)

Yes

Is the ActivityEconomic” in Nature? [ Lopez ; Morrison ]

No

Law Probably Unconstitutional



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2) The Taxing Power : The Power to Tax (Art. I, § 8, cl. 1), “Congress shall have Power to Layand collect Taxes, Duties, Impost and Excises…” is independent of other powers. Taxescreate revenue, can dissuade certain activity (tobacco). Gov spending can encourage people t oengage in activities . Court adopts the view that it’s for the “general welfare” unrestricted bythe enumerated powers

i) “Duties, imposts, and excises” must be uniform throughout the US and “Capitation”and “Direct Taxes” must be “apport ioned” according to the census, Art I §9, cl 4.Income taxes not to be apportioned

a. Voters will vote the rascals out if taxing power is abused → Functionallimit on the taxing power

ii) Taxation as Revenue-Raiser and Regulation : Taxation is “incentive -izing” tool,altering peopl e’s behavior. The Tax Power must be used to either raise revenue orfor regulation pursuant to one of Congress’ other powers. [United States v. Butler :As part of the 1933 Agricultural Adjustment Act, Congress implemented a

processing tax on agricultural commodities, from which funds would be redistributedto farmers who promised to reduce their acreage Held Court found the Actunconstitutional 2 reasons: it attempted to regulate and control agricultural

production, an arena reserved to the states. those activities were "but means to anunconstitutional end”, violating the 10 th Amendment; Coercive to farmers →regulatory program disguised as a tax] [ United States v. Kahriger (1953) : Held ,Tax imposed on “bookies” and wage -makers with a separate requirement to provideregistration (to help prosecution) was constitutional because the means were relatedto IRS’ collection of a valid tax.]

iii) Taxation Cannot be a Penalty : The tax power cannot be used to penalize. [ NFIBv. Sebelius: ACA case. Was the penalty a tax? Held Court found the penalt was a“tax” under the taxing and spending clause → imposed by the IRS, levied onindividuals through income taxes, collected by the treasury, and produces revenue;

Mandate leaves consumers with a rational choice between fine or payment; Taxinginactivity is a legitimate power of Congress – doesn’t make it limitless b/c courts

block putitive taxes; doesn’t fall within known cat egories of a direct tax imposedequally on all individuals and therefore needn’t be struck down due to “lack ofapportionment” among the states ] [Bailey v. Drexel Furniture (1922) : Child LaborTax imposing excise tax 10% on annual net profits on every employer of child labor.

Held , Tax unconstitutional because a) regulation of ages not related to revenue; b)Mens rea was required; “there comes a time in the extension of the penalizingfeatures of the so-called tax when it loses its character as such and becomes a mere

penalty with the characteristics of regulation and punishment.” ]

3) The Spending Power : The Power to Spend (Art. I, § 8, cl. 1) is an additional power whichhas not been scaled back as the Commerce Clause has been. → unconstrained by theenumerated powers

i)

Spending with Supporting Regulation : Congress can regulate and impose penaltiesusing the spending power. [ Sabri v. United States (2004) : Petitioner was chargedfor offering bribes to a city councilman. Petitioner moved to dismiss wasunconstitutional on its face for failure to require proof of a connection between thefederal funds and the alleged bribe Held the Spending Clause authorizes Congress tospend money for the general welfare, and that the Necessary and Proper Clauseauthorizes it to take any reasonable steps to prevent such money from beingmisspent; it was within Congress's power to prohibit all bribes to all federally-fundedorganizations]



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ii) Conditional Spending : Congress can use conditions on money to regulate states.[South Dakota v. Dole (1987) : Congress withheld 5% of federal highway fundsfrom South Dakota because state allowed 19 year olds to buy 3.2% beer. Held ,Congress can withhold in order to make SD enforce 21 drinking age if within Limitsto Conditi onal Spending : 1) is in pursuit of the “general welfare ”, by which it is upto Congress to decide; 2) is unambiguous so the state can exercise a choice; 3) isrelated to the national interest, (drinking age goes up, drunk driving goes down); 4)cannot conflict with other constitutional rights (14 th Amend Equal Protection); 5)cannot be coercive upon the state (Anti-Commandeering principle). Dissent : Thecondition of 21 drinking age is not necessarily related to safer highways, for instance

juveniles who don’t drive are penalized; conditional spending is fine as long asCongress tells how money should be spent.]

a. Notes a. Application of South Dakota v. Dole

i. Program advances the "general welfare"ii. The conditions are unambiguous

iii. The conditions are "reasonably calculated to address [a] particular impediment to a purpose for which the fundsare expended" - the highway conditions

1. Kind of a necessary and proper clauseiv. Not independently unconstitutional, and not "coercive"

1. Congress may "indirectly" achieve through thespending power objectives it could not otherwise"directly achieve

2. Not coercive because funds are a relatively small percentage of highway funding. Claim ofcoercion is "more rhetoric than fact"

a. If you don't meet these requirements,you lose funding for this and this

4) Notesi) National Federation of Independent Business v. Sebelius: Affordable Care Act Case

a. Public Policy: Cost shifting problem → people unable to afford healthcareor young and healthy so don't buy insurance → They go to Emergency

room and docs under oblig ation not to turn them away → Nation incurscosts → Shifts the burden to those who are insured instead of the nation(higher rates)

b. Jurisdictiona. Anti- Injunction Act → prohibits congress from collecting taxes

until it's time to collect the taxes. Congress can determine whatfalls under the act

i. Court interprets labeling the “shared responsibility payment” as a “penalty” as intentions to exclude if fromthe act

c. Issue: The Individual Mandate And The Commerce Clausea. Commerce Clause → Can regulate anything th at substantially

affects interstate congress (if it’s necessary and proper)

i.

Power to regulate does not include creating commerce (CJRoberts) → "Slippery slope" → the Brocolli Argument,mandate everyone to eat brocolli

ii. There's a political limit → the people won't stand forsome things!

b. Case is not litigated on the theory that it might violate individualrights

c. HELD: The individual mandate, by contrast vests congress withthe extraordinary ability to create the necessary predicate to the



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a. “Commandeer State Legislatures ”: Congress cannot make a statelegislative process enforce a federal regulation. [ New York v. UnitedStates (1992) : Low-Level Radioactive Waste Policy Amendments Act of1985 required states, inter alia, to take title to their radioactive waste after acertain time. Held , Court struck down provision because it forced states toregulate pursuant to Congressional direction; Congress cannot“commandeer” state legislatures, transparency and accountability areimportant so federal, state legislatures do not blame each other; Congresscan use other political processes.]

a. Notesi. Can states conspire to handle the waste themselves?

1. Constitutional Problem → "no state shall enter toany treaty alliance or federation without theauthorization of Congress." (Compact Clause)Art I §10 → fear of states ganging up

ii. Commerce Clause? Waste moves and effects commerce1. NO! Fed gov compelling the states to do

something → states legislature to create a program and appropriate money to assume title→ Commandeering!

iii. Distinguishing Garcia → leaving things to the political process to decide what is for state and what is not toregulate

1. It's not being treated like a state but as anemployer → generally applicable laws

2. "Accountability Gap" → would blame state repsfor the legislation that they're being heldaccountable for by the fed gov's compulsion →voting confusion

iv. Can congress use the commerce clause to permit siting ofdisposal sites? Yes → this however is much less intrusive

1. It's all about the accountability problemv. Basic principle → congress cannot make states adopt

federal policy → not regulating generally but as anauthority

vi. KEY ISSUE: Are the states given a choice? See Sebalius

b. “Commandeer State Officials” : Congress cannot make a state executiveenforce a federal regulation. [ Printz v. United States (1997) : The BradyHandgun Violence Prevention Act commanded the Chief Law EnforcementOfficer of each county or city to conduct background checks on prospectivegun purchasers. Held , Congress cannot impress such officers into service;CLEOs are subject to unconstitutional commandeering; The law presentsthe same sort of accountability issues in New York; a) Text: little in text; b)Original Intent: State sovereignty, Such power by Congress is presumablyabsent; c) History – Precedent: No precedent; d) History – Practice: Look to

1st

Congress to determine; e) Structure/Policy: Sovereignty, Congress wouldreceive credit, not the states, unfunded, accountability would be withwhom?…it should be with the President as executive. Violates Art II

Dissent : a) Text : Oaths Clause, look to the “People,” e) Structure/Policy:the states are represented, locality would be enhanced rather than makingthe federal government bigger .]

iii) Congress Can :



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a. “Bless” State Agreements : According to the Interstate Compact Clause,agreements between states require the blessing of Congress, “No State shall,without the Consent of Congress, enter into any Agreement or Compactwith another state.” (Art. II, § 10, cl. 3).

b. Limit to Commandeering - Prohibit Sale of Drivers PersonalInformation : Congress can. [ Reno v. Condon (2000) The DPPAestablishes penalties for disclosure or resale of personal informationcontained in state motor vehicle records. These penalties apply toindividuals and state agencies. Held , Act constitutional because law“regulates the universe of entities that participate as suppliers to themarket;” constitutional through the Commerce Clause; Court very

protective of privacy.]

a. Upholds the statute. It doesn't violate the anti-commandeering principle for three reasons

i. It does not require the states in their sovereign capacity toregulate their own citizens. T regulates states as theowners of databases (as an employee per say)

ii. It is generally applicable and thus falls within the rule ofGarcia

1. Also regulates those who bought the informationiii. It does not require affirmative action on the part of the

States; rather it requires that States to refrain from doingcertain things.

b. Example: Clean Air Acti. EPA air quality standards. States required to implement.

If states don't they have the authority to implement aFederal Implementation Plan

ii. Violate the 10th Amend.?1. Have to regulate in a way that implements

federal standards or we will step in and do it! Sono… it's a meaningful choice !

c. Sebalius is a commendeering case. Commendeering the states!

E. Limitations on State Regulatory and Taxing Powers:

1) Preemption by Federal Law : Federal authority preempts state authority due to theSupremacy Clause (Art. VI, cl. 2). Federal law’s preemption is subject to a descendingmethod of analysis. Sometimes federal law is floor and states can grant more rights, (the statemay have a minimum wage of $7.00, versus a national $6.25). Sometimes, however, federallaw is ceiling. national power is supreme [ McCulloch ]

i) Express Preemption : the text of a federal statute expressly precludes or limits stateregulation of particular activi ties → Congress decides if States have power

A.

ii)

Conflict Preemption : where it is impossible to comply with both federal and stateauthority, either in law or in regulations, thus frustrating the federal purpose; ORwhere state law stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress [ Gade v. National Solid Waste ManagementAssociation : Illinois and Congress both had legislation that regulated safety andhealth for people working with hazardous waste material Held conflict preemption

because although the goal of both laws were the same, the state’s law stood in theway of the full implementation of the federal law] [ Crosby v. National ForeignTrade Council (2000) : Massachusetts enacted a law that forbid state agencies from

buying goods or service from companies doing business with Burma. Congress



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enacted a statute that imposed mandatory and conditional sanctions on Burma. Held ,the Massachusetts statute was struck down because it “presented an obstacle to theaccomplishment of Congress’s full objectives under the federal Act,” whereby 1) thePresident had control, not Massachusetts; 2) there were limited sanctions; 3) therewas gradualism in the sanctions. Note , Court decided on narrowest ground possible.][Florida Lime & Avocado Growers, Inc .: Federal regulation had one standard forcertifying ripe avocados, California had a stricter one (prohibits less than 8% oilcontent) Held , compliance with both regulations was not impossible, “there isneither such actual conflict between the two schemes of regulation that both cannotstand in the same area, nor evidence of a congressional design to preempt the field.”][Geier v. American Honda Motor Co. (2000) : Motorist was injured after collisionin which car did not have an airbag (passive restraint) which made manufacturernegligent under DC tort law. Held , 1) federal law (National Traffic and MotorVehicle Safety Act) does not preempt common law tort actions; 2) the Act does notlimit ordinary preemption principles; 3) NTMVSA preempts the DC safety standard

because the standard conflicts with Department of Transportation standard requiringthat some, but not all, 1987 automobiles have airbags, DOT studied extensively andhad 7 reasons, etc. Dissent , Court should be careful about making incursion ontostate grounds; clear statement should be made.]

B. iii) Field Preemption : Displacement of state law is inferred from the scheme of federal

regulation "so pervasive as to make reasonable the inference that Congress left noroom for the States to supplement it”. [Pacific Gas & Electric co. v. State EnergyCommission (1983) : PGE challenged a California regulation that forbid theconstruction of nuclear plants until a state agency determined that there was ademonstrated method for the disposal of the nuclear waste as preempted by theAtomic Energy Act. Held , Congress had not sought to regulate the economic aspectsof nuclear power through the AEA, just the safety aspects, thus California regulationwas not preempted. Not an obstacle to preventing Congressional intentions ][Lorillard Tobacco Co. v. Reilly : Federal law governs tobacco sales throughFCLAA. Massachusetts has ordinances prohibiting in part the outdoor advertising oftobacco near school playgrounds. Argued MA law violates 1 st Amend. Rights Held FCLAA's pre-emption provision did not permit a distinction between concern about

minors and cigarette advertising and the more general concern about smoking andhealth in cigarette advertising → Field Preemption – same as pacific gas?Presumption of preumption] [ Arizona v. United States : Arizona immigration law(1) makes failure to comply with federal registration requirements a statemisdemeanor; (2) criminalizes unauthorized alien attempt to find or engage in workin the state; (3) authorize police to arrest w/out warrant a person when probablecause that a crime that would make the perpetrator removable from the U.S. has beencommitted; (4) authorize police to stop, detain and arrest to verify immigration status

Held : (1) Court affirms Hines v. Davidowitz – Congress has preempted all state law pertaining to registration of aliens. It has “occupied the field” leaving no room forstate law. Registra tion misdemeanor is unconstitutional. It doesn’t matter that statelaw doesn’t conflict with federal law. But note Court’s concern about possibleconflict. (2) The work misdemeanor is also unconstitutional. Federal law

deliberately declined to criminaliz e such conduct. Thus, the Arizona law “stands asan obstacle to the accomplishment and execution of the full purposes and objectivesof Congress.”]

iv) Notes a. When Congress Enacts Legislation:

a. Does the federal law "preempt" - I.e. foreclose or "trump" - statelegislation that addresses the same subject matter?

b. Preemption is based on Art VI's Supremacy Clause



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person challenging such a law must demonstrate that the burdens oninterstate commerce outweigh the local benefits.

v) Law Discriminates Against IC : Discrimination against out-of state commerce willsubject a state law to invalidation. The Court has developed a three part test todetermine when discrimination invalidates a state law, regardless of the state’s

purpose:

a. On Its Face : the state law explicitly classifies things – e.g., companies,goods, services --- on the basis of whether they are “in -state” or “out -state”and regulates them differently, typically in ways that advantage t he “in -state” class. [ Philadelphia v. New Jersey (1978) : New Jersey law madeoutright prohibition on importation of out-of-state waste. Held , New Jerseylaw was a facially discriminatory despite health, safety and environmentalreasons. N.J. law discriminates against out-of-state waste for no reasonother than the waste’s geographic origin. Protectionist means of anotherwise legitimate state objective → unconstitutional under the commerceclause – in-staters benefit from less demand of waste & land – cheaperrates] [ C&A Carbone v. Clarkstown : City ordinance (discriminatesagainst others in state) is a waste "flow control" law requiring all non-recyclable waste within the town be deposited at a single, designated wastetransfer facility owned privately Held Though it “treats all waste alike” Theimmediate effect is local, but its economic effects is interstate in reach →deprives outsiders to city market (unlike Philadelphia ). Immaterial that in-state residents are also discriminated – can’t do when financing throughopen market] [ Dean Milk Co v. Madison : City ordinance forces all milksold in Madison must be process within five miles of the city Held Erectedan economic barrier protecting a major local industry against competitionfrom without the state - plain discrimination; Rule Establishes that localgovernment actions (cities, counties, etc.) as well as state actions (likePhiladelphia) are subject to dormant commerce clause → Local Processionalmost always unconstitutional] [Chemical Waste Mgmt. v. Hunt (1992) :Alabama law had fee on the disposal of hazardous waste generated outside

of state, no fee on disposal of waste generated in Alabama. Held ,Differential fee was facially discriminatory.] [ Oregon Waste Systems v.Dept. of Environmental Quality (1994) : Oregon law charged $2.25 perton on out-of-state waste disposal, $0.85 per ton on in-state waste disposalto make up for difference paid by in-state taxes. Held , Difference in feeswas not equivalent, law thus invalid.]

a. Acceptable if No Less Discriminatory Means : If no lessdiscriminatory means of achieving the end are possible,discrimination may be valid. [ Maine v. Taylor (1986) : State lawforbid importation of out-of-state baitfish to prevent entry of non-native parasite. Held , State law valid because less discriminatorymeans not possible to achieve legitimate ends.]

b. Scope of Carbone : If the state tries to monopolize, it's OK, but ifit's a local place, then not [ United Haulers Assn v. Oneida-Herkimer Solid Waste Mgmt Auth : City ordinance(discriminates against others in state) is a waste "flow control" lawrequiring all non-recyclable waste within the town be deposited ata single, designated waste transfer facility owned by the STATE(publically) Held Ordinance upheld → “it does not make sense toregard laws favoring local government and laws favoring privateindustry with equal skepticism… The Dormant Commerce Clause



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is not a roving license for federal courts to decide what activitiesare appropriate for state and local government to undertake, andwhat activities must be the province of private marketcompetition”]

b. In Its Effect – Facially Neutral : no explicit distinction between in-stateand out-state things as with facial discrimination, but the impact of the statelaw is different (and more onerous) on out-state things than on in-statethings. [ Hunt v. Washington State Apple Advertising Commission(1977) : North Carolina forbid apples sold in state from displaying anygrading system but USDA’s, thus depriving Washington Apple vendors ofusing their superior grading system. Held , law discriminated (protectionist)in its effect – raises cost of doing business in NC, but not so for in-stategrowers & deprives Washington of advantage by their system and effectstheir marketing strategy] [ Exxon v. Governor of Maryland : MD law

prohibits producers who are refiners of petroleum products from operatingretail service stations in the state. There are no producers or refiners in MD

Held does not discriminate against interstate goods nor does it favor local producers and refiners (neutral facially) → not all out of staters are barred;interstate marketers of petroleum products who do not produce or reginearen’t subject to the ban]

a. RULE : Discriminatory if could be achieved by less discriminatorymeans!

b. Creative Discrimination: State laws that impose discriminatorytaxes against out of state goods and services are "virtually per seinvalid" under Philadelphia; State subsidies to in-state businessesand not to out of state businesses do not violate the commerceclause (think in-state tuition) [ West Lynn Creamery v. Healy :MA imposes a sales tax on milk sold in the state. The revenuesfrom the tax then subsidize in-state milk producers. MA arguessince both parts are “constitutional” the whole is constitutional

Held the program operates like a discriminatory tax on importedmilk and is a clear form of protectionism → (1+1=3) (purpose and

effect is protectionist (though purpose without effect is notunconstitutional)) → mollifies those who would be opposed (in-state farmers) with subsidies]

1. HYPO: If MA eliminated the tax and simply subsidizedits dairy farmers? YES! That's OK.

2. HYPO: what if MA placed the proceeds of the tax in ageneral revenue account and then annually appropriatedmoney from general revenues to pay subsidies to dairyfarmers?

a. Difference between dedicated fund for subsidiesand general revenues (not subject to personalcommitments) → would have to go to annualappropriations each year to get their subsidies →

not so motivated to support the tax b. In principle, no different from a general subsidyiii) Law Burdens IC: The Pike Test : A state law’s burden on interstate commerce will

subject it to invalidation. [ Pike v. Bruce Church, Inc. (1970) : Arizona statuterequired Arizona-grown cantaloupe be packed in Arizona, an identified as beingfrom Arizona, thus enhancing Arizona cantaloupe reputation. Held , Despite Arizonaobjectives in enhancing cantaloupe prestige, burdens on IC outweighed benefits.]

a. The Test : To be valid, the statute: 1) must be an even-handed regulation(does not discriminate – all alike) to achieve legitimate objective but places



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“incidental” burdens on interstate commerce (presumed constitutional) ; 2) promote a legitimate local public interest; and 3) its effects on IC must beonly incidental and the burden on IC cannot outweigh local commerce →Challenger must demonstrate that the burden on interstate commerce “isclearly excessive in light of the putative local benefits” [Pike v. Bruce: Aguy converts a portion of the desert into farmland and produces wonderfulcantaloupes. Ships them by his packaging plant in CA. Met w/ problemunder AZ law → state requires packaging in AZ and identifying them as AZcantaloupe Held Unconstitutional → Evenhanded (doesn’t discriminateagainst producers, but does against cantaloupes); Legitimate state interest;BUT poses unnecessary burden on those in AZ (tough case)] [Bibb v.Navajoe : IL imposes a requirement for curved mud flaps. A couple of statesrequire straight mudflaps Held Law applied evenhandedly (which flapsshould give way? One still stands!) but substantially burdens interstatetruckers (changing flaps) → if looked at independently, different result] [Southern Pacific v. Arizona (1945) : Arizona law required shorter trainlengths, thus railroads had to “break up” on either side of state beforeentering. Held , statute invalid because it led to higher burdens and dubious

benefits.] [Kassel v. Consolidated Freightways (1981) : Iowa prohibited“doubles” trucks on Iowa Highways (important b/c they link the east andwest) Held , Safety benefits of prohibition were illusory, burdens incurredon other states that trucks then drove through outweighed benefits. Same as

Bibb → departure from the norm ]

iv) State Discrimination is permissible if a. It can survive "strict scrutiny" – ie demonstrate that the discrimination

furthers a legitimate state objective and there are no less discriminatorymeans of achieving that objective [Maine v. Taylor]

b. Authorized to do so by congress [Western & Southern Life Ins. Co. v. StateBd. Of Equalization]

v) Market Participant Exception : When state is a market participant it can favor itsown citizens and businesses, the Dormant Commerce Clause does not apply.

[Reeves, Inc. v. Stake : South Dakota sold cement, restricted sale to just citizens ofSouth Dakota. Held , South Dakota market participant, can discriminate – thinkin-state tuition]

a. No Downstream Restrictions : As a market participant, a state cannotimpose restrictions in area in which it is not a market-participant. [ South-Central Timber Development Inc. v. Wunnicke (1984) : Alaskaregulation required that timber sold to purchasers was required to be

processed in the state. Held , State cannot implement “downstream”regulations because the state is a market participant in the timber-sellingmarket only, not the timber processing market.]

b. Participant Through Contracts : A state can be a market participant

through contracts. [ White v. Massachusetts Council of ConstructionEmployers (1983) : Held , Boston could require that 50% of constructionworkers be Bostonians, was market participant through constructioncontracts.]

c. The Privileges and Immunities Clause – A constraint on the MarketParticipant Doctrine: Only citizens (excludes corporations) “fundamentalinterests” are protected under Art IV provides "The citizens of each stateshall be entitled to the privileges and immunities of Citizens in the severalstates" (In Camden , court holds out of state residents interest in employment



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on public works projects are "fundamental") Seen less of now since test ismore strenuous than the Dormant clause

i. Exception – a state may burden even fundamental interests (andthus discriminate against out of state residents) "if there is asubstantial reason for the difference in treatment. The court says itmust be concerned with whether such reasons do exist and whetherthe discrimination bears a close relation to them"

1. Compare this with the "strict scrutiny" applied todiscrimination under the dormant commerce clause

2. RULE: Will apply when the state is acting as a market participant‼! → market participant, EXCEPT when inviolation of the privileges and immunities clause

ii. Toomer v. Witsell: Differential l icense fees for shrimp fishing based on state citizenship held unconstitutional (WOULDVIOLATE DORMANT CLAUSE NOW)

1. P&I clause "outlaws classifications based on the fact ofnon-citizenship unless there is something to indicate thatnon-citizens constitute a peculiar source of evil at whichthe statute is aimed" (no indication out of staters causedthe lack of schrimp)

2. (would violate the dormant commerce clause now, butdone under old S. Ct. Belief that state own what's in it's

boundaries)iii. United Bldg & Constr. Trades Council v. Camden: P&I applies to

local laws and municipal resideny classifications1. Two Part Inquiry

a. Does the action burden a “privilege orimmunity”?

b. Is there a “substantial reason” for thediscrimination and is the discrimination“carefully tailored to alleviate the eveil?”

iv. Baldwin v. Fish & Game Comm: Differential licensing fees for

hunting sustained1. Only privileges and immunities "bearing on the vitality of

the Nation as a single entity" are protected → (hunting isa hobby)

2. Privilege to hunt is not a protected basic or fundamentalright

IV. NATIONAL POWERS IN THE AMERICAN FEDERAL SYSTEM: SEPARATION OF POWERS

A. Presidential Encroachment on Congressional Authority: Article II grants executive power.

1) Presidential Power in Wartime : During wartime, the president may test his power.

[Youngstown Sheet and Tube v. Sawyer (1952) : During the Korean War, President Trumanordered the Secretary of Commerce to seize the country’s steel mills in the face of animpending steelworkers strike. Truman claimed seizure was necessary to avert shortage ofsteel and prevent repercussions on War. Held , The President can only derive power from astatute, thus Congressional legislation or the Constitution itself. President lacks constitutionalauthority to take this action; Concurrence (Frankfurter) , Congress 1) had considered allowingthe President to seize, it was not granted, however, legislative intent cannot be inferred frominaction; 2) previous executive assertions of power do not add up to the power Truman seeks.Concurrence (Jackson) , The President has three forms of power: 1) Constitutional powerauthorized by Congress; 2) “ Zone of Twilight ” power when there is no action by Congress



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Executive relies exclusively on his powers → may have concurrent authority with Congressor distribution is uncertain; 3) Power is at its “Lowest Ebb ” when Congress expressed orimplied says “don’t do” but president acts Congressionally anyway → May be sustained"only by disabling the Congress from acting upon the subject ]

i) Conclusions from Youngstown a. The commander-in-cheif power does not extend to taking of private

property b. The executive power and the duty to faithfully execute laws "refutes the

idea that the President is to be a lawmaker"c. Past presidential practices are not determinative of constitutional limits

ii) Limiting Presidential Authorization : The War Powers Resolutions of 1973: TheAct authorizes the president to use armed forces only when there is: 1) a declarationof war; 2) specific statutory authorization; 3) a national emergency created by attackupon the United States, its territories or possessions, or its armed forces.

a. Requires President to consult with Congress before deployment “in every possible instance” and regularly consult until troops withdrawn

b. President must report within 48 hoursc. Must withdraw within 60 days unless Congress approves, gives an

extension, or is unable to meet.d. Resolution based on the necessary and proper clausee. Hamdi v. Rumsfeld: Hamdi, an American citizen. Detained him as an

enemy combatant. Thought he was a member of the Taliban. Claimsdetention violates the Non-Detention Act and is otherwise unconstitutional.Files habious corpus to get release. Non- Detention Act → specificallydenies President power to detain someone. Needs to be an act of CongressUnconstitutional? → hasn't been given due -process (procedural protection)to do his rights

i. HELD: AUMF authorized President’s actions. 1. Category 3 if statutory intepretation issue went the other

way2. No constitutional barrier to holding of a citizen as an

enemy combatant3. Really kicks in when he is continuously detained with no

crime allegedii. Having determined that Hamdi's initial detention was

constitutional, the court then considers whether his continueddetention violates his right of due process 5th Amend

1. Holds that citizen-detainee must receive adequate noticeand a "fair opportunity" to challenge status determination

before a "neutral decision maker"2. Rejects the gov's view that the role of the courts should be

severely limited in such casesf. Boumedience v. Bush: Aliens classified as enemy combatants in custody at

Guantanamo Bay request the court to determine whether they have the right

to file a writ for habeas corpus, which is a constitutional privilege notrevoked except if the Suspension Clause is in effecti. Holds that the Detainee Treatment Act unconstitutionally

suspended habeas corpusii. Notes that neither the Combatant Status Review Tribunal (CSRT)

procedures nor judicial review of determinations of the CSRT provide an adequate substitute for habeas corpus relief. Why not?

1. Their review is restricted to questions of law and procedure, not to questions of fact.

2. Not an adequate substitute for habeas corpus



iii) Authorized Presidential Action : The court can infer legislative [ Dames & Moorev. Regan (1981) : President Reagan issued an executive order that suspended claims

pending against Iran to release US hostages. Held , President was authorized to actaccordingly by Congress, vaguely however. (Category 1 of Youngstown → gov as awhole lacks the authority to do this) ]

iv) Presidential Authority in Foreign Affairs: May Congress Restrict PresidentialAuthority in Foreign Affairs? Most cases this is dismissed as political – “Zone ofTwilight” [U.S. v. Curtiss-Wright Export : Congress passes law → authorizesPresident to proh ibits sales of arms to foreign nations in this region → Presidentorders → Curtiss -Wright violates (THIS IS BAD LAW!) Held Delegation,smellagation, doesn't need this b/c he could have done it on some other grounds ]

B. Presidential Privileges and Immunities:

1) Executive Privileges : Privileges deal with the protection of certain information; privilegescabin off certain areas from judicial or legislative proceedings; privileges arise fromrelationships or status. Broadly, privilege concerns anything under Art. II, narrowly

privileges may just pertain to the military, etc. [ United States v. Nixon (1974) : President Nixon had secret tapes of conversations pertaining to Watergate, Court ordered the tapesturned over, Nixon claimed he had absolute executive privilege to withhold the information.

Held , Nixon did not have executive privilege to the information; in deciding whether a president has privilege, the court will balance the need for confidentiality with the need forinformation.] [ GAO v. Cheney : GAO wants names or people who met over Energy TaskForce, Cheney claims executive privilege of the names. Suit different than in Nixon becauseCongress want information, not court. President needs a damn good reason not to disclose.There really is no hard and fast rule. Esp. In criminal proceeding! ]

con law i outline redacted

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