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Con Law Outline Spring 2011 Prof. Joondeph Kira Proehl

History Constitution isn’t legal

o Under Art of Confed. (1777) needed 13 state’s legislatures to agreeo Only got 9 under the constitution’s requirement

SCOTUS Power and Role Article III: created fed. Judiciary and defines power S. 2 cl. 2- maximum fed. SMJ SCOTUS has original jx over cases affecting ambassadors, other public ministers and consuls & those where

a state shall be a party. Appellate jurisdiction in all others and only if the cases dealing w/federal law JUDICIAL REVIEW: power to review the constitutionality of fed or state laws & executive acts Marbury v. Madison: 1803: Authority of the court to decide that acts of C are unconstitutional

o Adams (federaliststrong natl. authority; Lame duck) appoints John Marshall as Chief Justice (also current sec .of state). Federalist Senate passes Circuit Courts Act- 16 new appellate judgeships & Organic Act of D/C/ (4 judges don’t get commission)

o Jefferson (Republican) takes office and refuses to deliver themo ISSUES

(1) Marbury has a right to the commission- commission complete when Sec of St affixes it (2) The laws afford him a remedy. Delivery of commission not strictly in the domain of the

executive. If it was purely executive then the commission would not be a legal right. BUT the Supreme court CAN’T grant the remedy he sought

The Judiciary Act of 1789 granting them permission to hear the case was unconstitutional. Attempted to confer more than the Constitution allows

If court deferred to C the constitution would be no different than a normal statute Case dismissed for want of jurisdiction

o OPPOSITION: public policy questions have been given to unelected bodyo Executive decisions: federal courts can enforce his duty, but not when he acts with discretion

Judicial Review And the Stateso Fletcher v. Peck: Yazoo lands case. GA legislature repealed all the land grants that GA had given to

people. The land grant owners went to federal district court claiming GA law violated the US constitution (contracts clause). US Supreme Court said that it did.

o Martin v. Hunter’s Lessee: 1816 S. Ct. authority to review judgments of state courts. Question was when Virginia seized the land. VA; once a case originates in state court, the case ends in the state sup ct. SCOTUS: Section 25 of Judiciary act of 1789 expressly grants SCOTUS jx. when the state ct

resolves a federal question. Not necessarily inherent.o Cohens v. Virginia 1821: reaffirmed authority of SCOUS to review state court judgments.

VA claimed it was fundamentally inconsistent w/dual sovereignty for the state to be brought to court. NOPE

Depth and breadtho No way for SCOTUS to enforce their decisionso Cooper v. Aaron, 1953

Reaffirmed Brown. Court decides what the law means and everyone is bound to adhere, not just named schools. State govts. must follow SCOTUS’s interpretation of US Const.

o Examples Jackson’s veto of bank bill. SCOTUS had decided that it was constitutional Lincoln and Dred Scott (Congress lacks authority to control slavery in territories. Blacks

can never be citizens). Lincoln refuses to apply decision to any other slave. Gov. Faubus claimed that Brown only applies to the schools named in the lawsuit.

Congressional Influence on the Judiciaryo The Exceptions Clause [Art. III S. 2 Cl. 2] Congress can make exceptions to SCOTUS’s appellate jx.

(only the ceiling is listed in the Const.) “In all the other Cases before mentioned, the sup Court shall have appellate Jx, both as to Law and Fact, w/such Exceptions, and under such Regulations as the Congress shall make.”


o Ex Parte McCardle: McCardle is locked up under Reconstruction Act and files for writ of habeas corpus. Congress repealed the act of 1867 that gave the SCOTUS jx to hear the case. Congress didn’t want the Reconstruction Acts to be found unconstitutional.

Rule of Decision: Court not at liberty to inquire into the motives of the legislature [at the same time, congress can’t dictate to the court how to find in a pending case]

Dictating what precedent can be looked at raises concerns Is it ok to regulate the jx of the federal courts? Yes Does it violate the rule of proscribing the decision? No

o Regulate lower federal courts (1) No clear text but [Art III s. 1] the great power to not have to create any lower fed cts

gives C the lesser power to restrict them in ways much broader than the power to regulate SCOTUS. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”

(2) Part of the historical understanding/compromise (to leave the making of fed. cts to C) Article I, §8, clause 9 grants Congress the authority “[t]o constitute Tribunals inferior to

the supreme Court.” Regulating the lower courts’ SMJ would seem to be a necessary & proper means to “constitut[ing]” those courts.

o Other means of Congressional control Judicial selection: P nominates and Senate confirmation; Impeachment (Art. III s. 4); Court

Packing/stripping; Constitutional Amend. Under article V; Browbeating through appropriations; Enforce the decisions

Justicability- Federal court has the power to hear the question. The power of the court to speak. Prohibition against Advisory opinions from Federal Courts

o Art III cases and controversies: Must be concrete and non-hypotheticalo Separation of powers: judicial role limited to deciding actual disputes

Standingo Look at the person who is doing the suing to see if they have standing even if discussing the Do Standing is jurisdictional—must be satisfied and resolved before reaching the meritso For a lawsuit to present a “case” or “controversy” within the meaning of Article III, the plaintiffs

must have standing to litigate their case in fed ct. As stated in cases such as Lujan this means that the plaintiffs must credibly allege three things: (1) that they have suffered an injury in fact that is concrete and particularized, as well as actual or imminent; (2) that the injury in fact was caused by the allegedly unlawful conduct of D; and (3) that the relief sought will redress the alleged injury.

o Constitutional minimum: (1) Injury in fact invasion of legally protected interest

Must be concrete/particular, [party seeing review must be among the injured]o Can’t sue as a tax payer who shares in common grievanceso Had more than “mere some day intentions,” such as those

found insufficient in Lujan. Actual/imminent Govt.: the alleged violation of the Act is an injury to the US’s sovereignty—an

alleged violation of its laws—& is particularized to the govt. (2) Causation: causal connection between the injury and the conduct complained of (3) Redressability: likely that injury will be redressed by favorable decision- can be partial

o Relief- specific (Problem 2) Injunction: affirmative action Civil penalties (damages) City of LA v. Lyons: Lyons put in a chokehold by LAPD & seeks injunction to prevent future

choking. Injunction lacks redressability b/c preventing future choking won’t do anything for his personal injury.

o Lujan v. Defenders of Wildlife, 1992


Allegedly illegal act was the regulation requiring consultation. Ultimate harm was the inability to see animals- too tenuous. Failed to show injury concrete and particular—just intended to return to see animals, no concrete plans.

Where P raises only a generally available grievance, not a case or controversy. Vindication of the public interest is the function of the executive and congress

o Citizen suit provisions: You need to have a cause of action spelled out by C to entitle you to sue, BUT this does not mean that you meet the Art. III requirements

o Procedural injuries If the govt. failed to follow procedure & you have a tangible, specific harm particularized to

you, then you have standing. Don’t have to prove the connection to the ultimate outcome. The govt. might be required to conduct an environmental impact statement before

condemning my house to use the property for a new high-speed rail line. My ultimate injury is the loss of my house. My complaint is that the government failed to conduct the EIS (or conduct it as required by law). The potential standing problem is that it may not be at all likely that, even if the court ordered the government to do the EIS (or to do it properly), the result would be any different. I may lose my house regardless.

Nonetheless SCOTUS has said that, in a case such as this, I would have standing. Because I have an ultimate harm (loss of my house) directly connected to the "procedural injury."

I was legally entitled to the chance that the EIS would lead to a different result. And I was completely deprived of that chance. And ordering the government to conduct the EIS would fully redress that injury, as it would completely restore that chance.

o Widely Shared Harms FEC v. Akins (classify AIPAC as a PAC): Sure I’m a voter, but I want this very particular

piece of information. Not an abstract thing. Even though the injury was not very different than for the community at large. They had standing.

Most of the time the injury is widely shared it is often that the injury is very abstract- then no standing. Political process is the solution, BUT if there is a concrete, specific injury then the need for particularity is not as critical. Note seeking general interest.

o Org. may assert associational standing, claiming injury in fact so long as any of its members might have done so and the claim is germane to the organizations purpose

Timing Issueso Mootness: litigants who clearly had standing at outset deprived of a concrete stake in outcome by

changes in facts or law. Injury no longer exists or is no longer redressable. (D dies) 2 exceptions: (1) voluntary cessation by D. (2) capable of repetition yet evading review

(pregnancy injuries) Challenged conduct lasts too short to be fully litigated prior to cessation/expiration

o Ripeness: dispute insufficiently developed, imminence question (1) Issue involved is suitable for judicial resolution (can have a purely legal question) (2) Withholding judicial review will cause P undue hardship

Political Questions Questions that must be addressed by the elected branches

o (1) Textual commitment from Const. to another branch (i.e. Impeachment to C, unreviewable)o (2) Judicial Discretion: we shouldn’t get involved-- other adequate means of dealing w/problem

Attribute of SMJ under Art III cases and controversies, Doctrine true for all levels of federal courts. Baker v. Carr, 1962 6 factors

o Is it textually committed to discretion of a branch other than judiciary? Is there a judicially manageable standard? Will this breed disrespect for the ct or show its impotence? (2); Will this show disrespect for co-equal branches? Is there potential for embarrassing the nation?

Adequate and Independent State Grounds Michigan v. Long: If the MI const. was violated, then the SCOTUS wouldn’t have jx to hear the case. State

Supreme Courts are the final arbiters of the state law. Now st law itself could violate the const. but no fed review of st law itself. There MUST be a federal question no matter who the parties are for SCOTUS to have jx.


Congress’s Power Basic Principles

o Ours is a government of enumerated powers: Congress must have express/implied authority to act from the Constitution. Enumerated Powers “all legislative powers herein granted shall be vested in Congress…” [Art I s. I]

o States have residuary powers. Can do what they want, unless prohibited by Constitution. Only States have police power which allows them to adopt any law not prohibited by the constitution

Art 1 s. 8 Outlines Congress’s powerso Necessary and Proper Clause [art 1 s8 cl 18] “To make all laws which shall be n&p for carrying

into execution the foregoing powers…”o Allows C to select appropriate means once it has resolved that the objective in w/in C’s

enumerated powers McCulloch v. Maryland 1819: Canonical statement about the breadth of the necessary and proper clause

o MD imposed tax on banks not chartered by state. o (1) Does congress have power to incorporate a bank? YES

MD—compact theory—States are sovereign when they entered the constitution and can assert authority when they want.

Marshall—Sovereignty ultimately rests in people. People can bind the states and states can’t withdraw when they want.

“It’s a constitution we are expounding” It would be impossible to list all the accurate subdivisions of const. in its language.

Must speak in broad terms. Necessary and Proper Clause:

Listed in the pwrs of C, not in the limits so it should naturally give more power than take away. C may choose any means not prohibited by the Const. to carry out its lawful authority.

Necessary: some rational connection b/w the means and the ends Congress passes a criminal law that keeps ppl from vandalizing mail boxes. – not

an enumerated power but N&P for power to establish post offices Implicit in all constructions of Art. I. Explains the enumerated powers

o (2) Whether the state of MD may tax the branch? NO States retain the power to tax generally Lack of confidence: the electoral process is a check on how politicians use their pwr. Here

the ppl of US are paying a tax from ONE state. No natural check on power of MD politicians. No text- purely a structural inference and notion of federal supremacy. Can’t empower

individual states to veto acts independently.

COMMERCE CLAUSEo Grants power to Congress to regulate (statutes cover both state and private individuals)o 1937-1995—very deferential review

Wickard v. Filburn 1942 Filburn’s homegrown wheat reducing the amount of wheat that is purchased in

the market. If he didn’t grow it, he would have to buy it. This undermines Congress’s broader regulatory system. Within commerce power even though actions are not interstate.

Principle of Aggregation: Congress can regulate activity that, taken in isolation, doesn’t substantially affect IC on the grounds that multiple iterations would. CANT AGGREGATE NONECONOMIC ACTIVITY

Civil Rights act of 1964: Congress eliminated discrimination in places of public accommodation if its operations affect IC

Heart of Atlanta Motel v. US: Fair to prohibit discrimination in public accommodation b/c it hurts interstate travel. Act unclogged channels of IC.

Katzenbach: Reduced spending on the part of blacks b/c not served. These establishments sold less interstate goods.


o Current Framework (revival of internal limits on Commerce Power) US. V. Lopez 1995

3 subjects congress can regulateo (1) Use of Channels of IC - how people get from one state to another. Have

activities at hotels, motels, bars, and restaurants discouraged travel and therefore clogged the channels of IC? Use need not be commercial…

o (2) Instrumentalities of IC (railroads, cars, planes…)o (3) Activities that have substantial relation to/affect on IC

Is it economic or commercial? (most important) Is the activity person was arrested for directly economic

or commercial? Possession doesn’t seem to be. The Court has not stated that Congress can

never regulate purely intrastate, non-commercial, non-economic activity. But it has come quite close. Is there a Jx element in statute? That limits the applicability to things that have traveled in IC?

Findings by congress on affect on IC? And their relevance is questionable after Morrison. As the Court emphasized in Morrison, it is ultimately for the Court to decide whether there is a substantial effect on interstate commerce.

Attenuated connection to IC? This criterion doesn’t seem to hold much indep.

significance. In Lopez & Morrison the Ct seemed to indicate that the connection b/w the regulated activity & IC was attenuated precisely b/c it was purely intrastate, noncommercial activity

Are states historically sovereign? If what someone was arrested for is NONE of them [like possession]- is it an

integral part of a broader regulatory scheme that regulates IC? – Regulation of possession could be necessary to prevent undermining of broad scheme.

o Only need to be reasonable. Gun Free School Zone Act Unconstitutional b/c relationship to IC too tangential.

Just because a gun’s parts have been in IC doesn’t bring regulation of guns on schools under the CC. Act didn’t regulate an economic activity (just possession)

Doesn’t overrule precedent. In Heart/Katz/Wickard. The regulated activity was commercial activity

US. V. Morrison, 2000 Regulates gender motivated violence Not economic activity, attenuated connection, no jx, element, states historical

sovereign. Enough to outweigh congress’s finding of a connection. Even if there were surrounding circumstances of economic activity, the regulated

activity itself is not commercial Gonzales v. Raich, 2005

Regulation of a non-economic activity is fine when it is necessary to the success of larger interstate economic plan. Rational basis

Raich cultivated, possessed and used medicinal marijuana in CA. Just because CA allowed it is immaterial. Congress’s power does not depend on

what individual states have chosen to do. This is an economic activity. Have a substantial effect on supply and demand of

illegal drugs in nation- could be funneled into illegal activity. The broader regulatory scheme is clearly a regulation on interstate commence.


Citizens Bank v. Alafabco 2003: just b/c the statute has the phrase “involving commerce” does not mean that it is activity that can be regulated under CC

SPENDING POWERo Spending: Failure to avail oneself of spending simply denies someone a benefit. Congress provides

something it has no obligation to. [Conditional spending program like giving out vaccines] Spending Cl and N&P allow C to enact laws that are rationally related to safeguarding

federal $$$o Rational basiso NOT Regulating: making equal, failure to comply leads to sanctions, power to regulate and impose

coercive rules (making a private person do something, not just a condition attached to a spending program for someone who works for the government- need a separate enumerated power)

o South Dakota v. Dole Congress allowed Sec of trans. to withhold funds in states where ppl. under 21 can buy

booze. – Constitutional (fed $$ for safe interstate travel, drinking age for safe travel) Limits on Spending power

Must be in pursuit of general welfare (political question- courts are deferential) Terms must be unambiguously known- states can exercise a choice Conditions must be germane to the spending program—Most important, allows

somewhat loose analysis. Supreme Court has never invalidated an act of Congress on this ground.

Independent constitutional bar can’t prohibito Can’t make states act unconstitutionally (like putting up crosses in state

courthouse)- could then challenge the states action AND the federal spending program that promoted it.

Condition can’t be coercive—withholding all the federal funds Dissent: if purpose is to deter drunk driving, it is far too over & under inclusive.

o If a ct were to find that it is not a valid exercise of the spending power, that is not necessarily the end of the inquiry. Instead, that means that, in fact, the legislation constitutes regulation rather than spending. Thus, the question becomes whether it is valid as regulation. Does it violate anti-commandeering or the commerce clause?

TREATY POWER (art 2 s. 2)o Constitutional Basis

No treaty power in Art. I. President can negotiate and senate can ratify Necessary and proper allows Congress to enact laws to support treaties

o Missouri v. Holland 1920 Treaty with GB protecting migratory birds. If treaty is valid, then statute carrying it out is

valid. Under N&P may enact all laws necessary to execution of a valid treaty. Constitution does not limit C to its enumerated powers when implementing a treaty [but

you can’t ignore a specific constitutional provision] CON: if there is a treaty and it is n&p to enact laws to regulate it then it seems that C’s

enumerated powers are increased to over things they were not permitted to regulate.

SECTION 5 of 14th AMENDMENT (mini necessary and proper clause)o Grants C power to enact “appropriate legislation” to enforce provisions of 14th amend s. 1. [DPC, P

or I, EPC—didn’t really talk about] [protects fund. rts & only applies to STATE govt. conduct]o EX: 42 USC 1983- private people can sue for infringement of their rightso US. V. Morrison 2000—gender based violence

14th amend. Only prohibits states action. Congress may not regulate private conduct under its section 5 powers

Individual cannot violate the constitution. This act tried to regulate private partieso Congruence and Proportionality current test to determine if legislation is w/in C’s power.

Whether preventive legislation is congruent and proportional to const. violations C has targeted.

Federal regulation of states as states


o 10th Amendment: The powers not delegated to the US by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people

o Federalism Protects citizens against govt. oppression Sts are closer to the ppl & more likely to be responsive to needs-- labs of experimentation States cannot give immunity from federal laws

o National League of Cities 1976: Applying the Fair Labor Standards Act and forcing state govts. to pay min wage would displace decisions traditionally left to the states

o Garcia 1985- overruled above. FLSA fine: 1) approach non-workable- can’t define traditional/integral govt. function & 2) protection of state prerogatives should be through the political process & not from the judiciary. Congress may regulate state employees under a statute that regulates both private and public employees.

Anti-Commandeering Principle (derived from the 10th amendment)o Standing: Protects the sovereignty of the state. Can argue that the only person or entity that suffers

an injury from a violation is a state. BUT Could also say that if an act violates the principle then the act is unconstitutional and hurts the people the act affects… weak

o Must require states to do something to regulate their own citizens. Not enough to prohibit a state from doing something Not enough to require that states, as owners of information to do something

o NY v. US 1992 Invalidates the Low-level radioactive Waste Policy Amendments Act as violating the 10th

amendment. C coerced states to exercise legislative pwr to enact C’s law. Unconstitutional b/c it gave state govts. the choice b/w either accepting ownership of

waste or regulating according to Congress Commandeering directly compelling states to enact and enforce a federal regulatory

scheme or use state agencies for federal purpose. Distinguishing Garcia: here Congress is attempting to regulate the state’s ability to

regulate. In Garcia, govt was trying to make FLSA applicable to everyoneo Alternatives

Commerce power, conditional spending, conditional preemption (may threaten to pass fed laws unless a state chooses to regulate their way)

o Printz v. US. 1997: Brady Handgun violence Prevention Act requiring state and local law enforcement officers conduct background checks on prospective purchasers is unconstitutional. C commandeering state executive officials to implement a federal mandate. C also impermissibly gave executive authority to state law enforcement personnel to implement the law.

Ct in Printz specifically reserved the ? of whether commands that states provide certain information to the federal government violate the Tenth Amendment.

o Garcia was different because First, the FLSA was "generally applicable": it applied not just to the states (or their subdivisions), but also to private employers. Second, more fundamentally, at issue in New York and Printz laws that regulated the states in their capacity to regulate or govern their own citizens, whereas the FLSA regulates the st in a proprietary capacity, as objects of regulation

The President Article II

o “The executive powers shall be vested” vs. Art I which limits Congress’s powers to those “herein granted”—does the exec come with special “executive powers” not spelled out in the Constitution?

Hamilton P has inherent powers not specified Madison P has no powers that are not enumerated

o Commander in chief; Negotiate treaties; Take care that federal law be executed Youngstown Sheet & Tube Co. v. Sawyer 1952

o Truman seized the steel mills during Korean War through executive order against C’s statute. BAD—president’s powers must stem from an action of congress or the constitution. President has no monopoly on was powers.

o Jackson’s concurrence: THE THREE ZONES


(1) Acts pursuant to an express/implied authorization of C- MAX authority (2) Twilight Zone: Concurring authority- C says nothing; P -inherent pwr (3) Ps measures incompatible with the express/implied will of Congress—MIN authority.

Executive action can still be constitutional if the law C enacted was unconstitutional. o Dames & Moore v. Regan: 3 categories may be a little oversimplified—continuum.

Non-Delegation Doctrineo (Only 2 cases overturn laws based on this- ‘35) Deferential and similar to political ?o C can legislate in broad, open-ended terms, leaving most details to be worked out. C doesn’t need a

good reason for delegating. o C can’t delegate legislative powers in violation of Art. 1. BUT at a practical level C has to delegate to

admin agencies. Allows for flexibility, expertise, non-political accountability, buck-passingo Constitutional limit: Laws need an intelligible principal to guide those charged with

administering the laws. o Whitman v. American Trucking Association- Upheld

C tells EPA to set ambient air quality standards to protect public health.

Legislative Vetoo Congress reserves for itself a power to overturn an agency’s action by doing something short of

passing new law. Impermissible b/c the only permissible means for C to reverse P’s decision of how to enforce a federal law is to pass a new law.

o 1930s inserted into federal when we had an explosion of regulatory agencies. o INS v. Chada 1983

One house veto is unconstitutional (didn’t comply with either:) PRESENTMENT CLAUSE: Art. 1 s. 7 cl. 3: all legislation must be presented to the President

before it becomes law. BICAMERALISM: No law can take effect without concurrence of prescribed majority of

members of BOTH houses. EXPRESSIO UNIS: the expression of one, implies the exclusion of the other. Constitutional

interpretation Only 4 provisions in Constitution where one House alone may act with

unreviewable force of law House: initiate impeachment; Senate: conduct trials, power over presidential appointments, power to ratify treaties.

Legisl vetoes are impermissible not b/c they are passed by only one house, by a simple majority, or by an unrecorded vote, but b/c the only permissible means for C to reverse the Exec Branch’s decision of how to enforce fed law is to enact a new law w/both bicameralism requirement and presentment requirement

o Instead C can pass new statutes; use appropriations, oversight or confirmation

The Line Item Veto Act of 1996o Gave P a role, other than just signing or vetoing an entire billo Gives P power to cancel in whole 3 types of provisions signed into law while allowing the rest to go

into effect (AFTER the bill is law) Any dollar amount of discretionary budget authority; Any item of new direct spending;

Any limited tax benefito Lets C pass something and say they voted for it BUT P can be sane and get rid of it. o Clinton v. New York 1998

Lets the P make a different bill than that passed by C. Doesn’t comply w/procedure. (presentment, bicameralism)

o Doesn’t really matter. There are other ways for C to do the same thing [appropriate money to the P and let him decide what to with it- could potentially be a delegation issue] Hard to know what practical significance taking away this power did.

o C can pass the laws with the criteria of the line item veto act in it. Only problem with the line item veto act was that what became law was something other than what passes the houses. Have to give the P some criteria to change the law- intelligible principle just like the act did [see above].


The Appointment of federal officers

o Art 2 s. 2 cl. 2: Appointment Clause: President shall nominate and by and with the advice and consent of the senate, shall appoint Ambassadors, judges all other officers of the U.S. whose appointments are not herein provided for…

o C can’t appoint any person who has a role in the execution of fed law. must determine if the people they appoint are officers of the US. If they are merely advisory, then they are fine

o (1) Do we have an “Officer” of the U.S. [Freytag quoting Buckley] Exercises significant authority? Significant discretion in the enforcement of federal law? (discretion that is more than de

minimis or trivial) If yes, inferior or principle? Only principle officers must be appointed in the manner

prescribed by the constitutiono (2) Inferior v. Principle officers

Congress can never reserve to itself the power appoint executive officers, whether those officers are principal or inferior. See Buckley v. Valeo

To whom do they report: subject to removal by a higher executive branch officer (rather than the president?)

Job duties (limited, certain duties? Could be significant duties, but still limited in scope) Jurisdiction of the office (how broad/how much policy making authority- can they be

rejected by someone like the President?) Is the office limited in tenure? (if limited then less power) Principle- then appointment by P w/senate confirmation (Constitution) Inferior: C can specify that the office be aptd by the P alone, head of dept. or ct of law.

Heads of departments: 12 cabinet-level. Freytag includes positions similar to these. E.g. the solicitor general is clearly principle BUT he is not the head of a department because he reports to Attorney General

Freytag: 1991 Tax ct is Art I ct (not Art III) making judges inferioro Congressional Silence: if nothing is said about appointment then appointed by the president and

confirmation by the senateo Are their other limits on the President’s power to appoint? (not if they’ve already served? Must be

from a certain political party?) Constitutionality must be determined by reference to general separation of powers

principles. Are they impermissible intrusions on the president’s power to appoint executive officers/faithfully execute the law?

Removal of Federal Officers (constitution is silent except for impeachment)o No specific test- separation of powers principles. Presumptively P can remove officers who are

executing fed law. C can have no role in the removal of executive officers other than through impeachment and conviction. (Bowsher v. Synar)

o Immaterial that the Sec of Treas, not P, is given the power of removal, as the P could direct the Sec to remove a commissioner. The same was true with the role of the Attny Gen in Morrison v. Olsen

o Some people C wants to protect from being removed by P.- political insulation Issue: this in some way limits P’s ability to execute fed. law Morrison 1988: Can’t completely prohibit P removal but can limit to “good Cause.” Good

cause removal of independent counsel by AG is constitutional. Test: do removal restriction impede Ps ability to perform duties When are limitations ok?

o The nature of the restrictiono The Significance of the office: Scope of duties, breadth of officers jx, length

of tenure, who removes the officer


EX: Free Enterprise v. PCAOB: “For cause” limit on the board. The SEC could remove BUT the SEC also had a “for cause” limit on its removal. Double layers of “for cause” limitation on removal unduly interferes with the president’s ability to enforce federal law.

Humphrey’s Executory v. US 1935: C may not limit removal of cabinet officials but can for officers of independent agencies. Cabinet is there for P to carry out policies

o Motivations & Problems C wants to be involved b/c they can exert control over dept. heads (threat of being fired) Preserving the intent of legislation in implementation (want the person in charge to do

what they say and don’t want it easy to get rid of the guy) Insulate the enforcement from the political agenda of P Leverage- C already controls the appropriations, if they also limit the circumstances under

which the officer can be removed, it becomes more the boss than the Po Restrictions on removal

Congress created them through a statute Bowsher: 1986: Congress can’t retain for itself any role in the removal of officers who

are appointed to enforce federal law. Constitutional when they don’t unduly trammel the president’s ability to enforce the law

Preemption: STATES Must have a claim based on a state law Art 6, the Supremacy Clause: federal law is superior to state law Critical question is DID CONGRESS INTEND to displace state law?

o Express: Includes a preemption clause saying the following state laws are preempted. (Again, this is basically a question of congressional intent)

o Implied Impossibility preemption: Physically impossible to comply w/both state and federal law Frustration of Purpose: C enacted a complete scheme of regul. and the st law interferes.

Does st law stand as an obstacle to fed law’s objectives? List objectives & compare Field Preemption: C has regulated in the field so much that there can be no room for state

supplementation. Requires a clear showing that C meant to occupy a field (presumption against for areas of traditionally local concern)

Does state law stand as an obstacle to federal law’s objectives? Sprietsma 2002

o Never read in surplus verb-age in a statuteo Coast Guard decided to do nothing to regulate propeller guards. If they had chosen to regulate and

then decided to do nothing, it would preempt. Not preemption here. o Could be considered frustration of purpose b/c state’s regulation is an obstacle to federal govt’s

decision not to regulate. Raich Review: the CA marijuana law merely chooses not to regulate a certain activity. This can never be

preemption. If federal law required CA to regulate something it would be commandeering. The anti-commandeering principle forbids C from ordering states or their political subdivisions to take

affirmative action to govern or regulate in a particular way. But it does not forbid C, in its regulation, to forbid states from regulating in a particular way. Of course, C must be acting within its enumerated powers in enacting the relevant statute. But assuming it is, effectively ordering a state not to regulate is not a forbidden "commandeering."

Dormant Commerce Clause: STATES Absent Congressional authorization states can’t regulate in a manner that discriminates against or unduly

burdens IC. Just because C regulated in an area does not mean the states can if it discriminates against IC. Anti-Protectionist Rule: don’t want instate benefited at expense of out-of-state competitors

ONLY RELVANT IN THE WAKE OF CONGRESSIONAL SILENCE (if congress says regulation by states is OK then states can regulate in any way the choose, even if it discriminates against IC)

Apply the Lopez framework to determine if it affects IC Framework:


o (1) Does regulation discriminate against IC (b/w instate & out of state commerce)? (threshold ?) If YES Presumptively unconstitutional (1) Facial discrimination (easy)

Dean Milk v. Madison: Regulations don’t have to be coterminous with state boundaries. 5-mile radius around Madison disfavored many in-state pasteurizers but ALL of those favored were in-state.

(1) does st have a legit interest? (2) does st have nondiscriminatory alternatives? (2) Discriminatory Purpose (protectionism) (harder to apply)

Protectionist motives Bacchus Imports Lt. v. Dias: HI liquor tax didn’t apply to local pineapple

wine/brandy. Not on face of statute, but clearly a gerrymander to favor HI industry

(3) Discrimination in Practical Effect (doesn’t make sense) Hard to determine if a law imposes a greater economic burden on intERstate

commerce v. intRAstate commerce without sophisticated analysis. Rather, what Joondeph think the test means: a state or local law will be deemed to

discriminate against interstate commerce when the practical effect of that law is

such that we can infer that the likely purpose of the law was protectionism. WA state Apples: NC law allowed local apples to appear better Exxon & Cloverleaf: Confusing and don’t match the ?s

o Court seems to be asking if the real purpose is to protect in-state economic actors

o Exxon- all MD’s gas flowed in ICo Cloverleaf: MN ban on non-recyclable milk containers, but nothing on in-

state non-recyclable pulpwood- no discrimination Are all firms disadvantages located outside the state? (not dispositive alone) Are instate firms clearly advantaged- are instate firms competitors?

o If it discriminates, is it nonetheless constitutional? (“rigorous scrutiny”) Is the state interest legitimate?

Maine v. Taylor 1986: prohibited importation of baitfish (rare exception- discrimination against IC but only means available to accomplish goal of preventing bacteria)

Are there effective non-discriminatory alternatives?o (2) If not discriminatory & evenhanded for both instate and out of st, does it impose an undue

burden on IC? Are there other means of accomplishing the goals? Presumptively constitutional and only impermissible if burden is very high Pike Balancing Test: Where the statute regulates evenhandedly to effectuate a legit local

public interest and its effect on IC is incidental, it will be upheld unless the burden imposed on IC is clearly excessive relative to local benefits. Burdens on IC v. law’s benefits. Quite deferential though, so presumption favors constitutionality.

The Pike balancing test makes more sense if we see it as serving as a proxy for 2 functions. One function is to smoke out laws that are really motivated by protectionism. When a state enacts a law that produces trivial or non-existent local benefits, yet imposes substantial burdens on IC. Often the answer is that the real explanation is protectionism.

Pike test also serves to invalidate the odd state law that, because of its idiosyncrasy and its interaction with the laws of surrounding states, functions to block or clog the channels of IC.

o Southern Pacific: Limiting the length of trainso Bibb: contoured truck mud flaps violated

Kassel Iowa: 1981. Iowa truck lengths burden IC. The safety benefit did not exist b/c doubles are just as dangerous as singles. In fact, Kassel is sort of the perfect Pike example, because it seems to have a little of both. Iowa's law arguably was enacted with a


discriminatory, protectionist purpose (to push costs onto other states), and it functioned to clog the channels of interstate commerce

Exceptions to the DCCo Congressional Authorization: Prudential Ins. Co. v. Benjamin 1946- Congress allows instate

exemption on tax. C declares that the regulation by the several States is in the public interest, and that silence on the part of the C shall not be construed to impose any barrier to the regulation of homeopathic medical care by the several States.”

If C approves, then it has acted so the question is really whether fed law is constitutional exercise of the CC (not state law consistent with the DCC)

o The Market Participant Exception When govt. acts as a buyer/seller of goods/services Must be a market where at least one participant is private Government subsidies are not regulation Limited to the market in which the govt. is actually participating- not related markets

South-Central Timber Development, Inc. v. Wunnicke 1984: Govt. owns raw timber can’t regulate downstream processing. Could have given subsidies or chosen who to sell too

Philadelphia v. New Jersey 1978o NJ law prevented importation of waste (facially discriminates)o Scope of DCC = Scope of CC Here: Channels and substantial effecto Regulating landfill space is economic in nature and the legislative objectives (health, aesthetics)

weren’t enough. There were other, nondiscriminatory alternatives

Privileges AND Immunities clause of Article 4- ONLY APPLIES TO STATE Discrimination on the basis of state residence. Only applicable when an out of state resident is being

discriminated against. – ALL IT DOES Art IV s. 2: the citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the

several states. Doesn’t provide for a substantive right- merely an equality provision to restrain states to treat their own residents better.

Certain form of discrimination based on state residency are necessary (like for voting) Test

o Do we have a citizen? – Only natural persons and citizens of the USo (1) Is that person from out of state and discriminated against?o (2) Is it a “Privilege and Immunity” that extends to a fundamental right?

Right to earn a livelihood/membership of a bar- Piper 1985- v. Elk hunting Only w.r.t those privileges and Immunities bearing on the vitality of the nation as a

single entity must the state treat all citizens equally (Camden)o If it is fundamental, is there sufficient justification for the discrimination?

Instate ppl pay taxes- may work, but is the discrimination substantially related to that interest? If very sm. part of budget at issue then individual taxes would not give much to that particular agency.

College tuition- fear of free riding. Colleges acting as market participants o The relevant Standard of Scrutiny: Intermediate (substantial interest and substantial relation)o No Market Participant Exception

The DCC protect IC, not specific people, P&I protects rights of citizens not to be discriminated against. This fear does not disappear if the state is a market participant.

o Relationship with DCC P&I can ONLY be used if there is discrimination against out-of-staters, DCC can be used to

challenge and state/local laws that burden IC Corporations and aliens can sue under DCC- “persons”

o United Building v. Camden 1984: P&I applies to city’s ordinance requiring that at least 40% of employees of (sub)contractors working on city projects be residents of city. DCC wouldn’t apply because of market participant exception


o Baldwin v Montana Fish and Game Commissions: State can charge non-residents 25 times as much for elk hunting license

Privileges OR immunities clause of the 14th amendment- STATE ONLY Only thing we’ve seen is with respect to the 3rd aspect of the right to travel Constitutional right to travel (Fundamental)

o Right to physically move across state borderso Art. 4 s. 2: right as resident of St A to be treated the same as resident of St B when they travel

temporarily to state B.o Right of interstate migration: ability to move permanently

Constitution’s protection of civil rightso State (in a governmental sense) action doctrine: Only the government can violate the constitution

(except for slavery)o Original constitution- no protection of individual rights

Bill of Rights: political compromise to get those who did not trust the enumeration of powers to serve as a check.

14th amendment Due Process Clause- read to make applicable to state crim proceedings virtually all of the procedural requirements that govern fed crim law enforcement

o Barron: BoR 1833 restricted only the national government- technically still true today. If framers had intended to apply BoR to states, they would have included plain & intelligible language

o Post-civil war 13th: no slavery 14th: Civil rights Act- all persons born and naturalized in the US are citizens of the US and

the states in which they reside (US 1st, then states). No state shall make or instate any law to abridge the laws of the US

15th: Right to voteo Slaughterhouse: 1873

14th did not apply BoR to the states based on Privileges and Immunities Saenz v. Roe 1999: Law distinguished among welfare recipients based on duration of

residence. The aspect of the constitutional right to travel protected in Saenz only addressed discrimination among residents based on how long they had been residents. Treating new residents less favorably than longtime residents, the Court held in Saenz, infringes on the right to travel (specifically, the right to move from state to state and become a resident of a different state).

State may draw no distinction between classes of citizens based on the length of their residence without compelling justification. (strict scrutiny- $$ not enough)

1st use of P or I clause to invalidate state lawo Modern Incorporation, 1897

Used the Due Process Clause NOT P&I of the 4th/14th McDonald 2010: framework for how to determine if a right is incorporated Applicable standard

(1) Right is fundamental to our scheme of ordered liberties? (2) Right is deeply rooted in the nation’s history and traditions? “Fundamental” under DPC is different than for Art 4 s. 2

Selective incorporation 3rd (quarter troops), 7th (rt of jury in civil cases), 5th (rt to grand jury indictment),

8th (rt against excessive fines- assumed by never fully incorporated), 6th (Unanimous jury trials)

Un-enumerated rights- no reason to stop at the first 8 amendments. The question is simply fundamental or deeply rooted?

Substantive Due Process


o Substantive right have been incorporatedo Doesn’t have to do with “Process”

Rife with judicial subjectivity

Basic Analysis for Deprivation of a Right: Substantive Due Process Violates Due Process under 5th (FEDERAL) or 14th (STATE)

o Is a right fundamental (for due process different that for P & I) Is it deeply rooted in our nation’s history, legal traditions and practices (McDonald)

o If yes, apply strict scrutiny (1) Weight of Govt. interest- Must be compelling (2) The Means-Ends “Fit”- how well the law accomplished the asserted interest. Must be

necessary and narrowly tailored Legitimate (public health, welfare and safety) Rational Relationship [DORMANT CC] Substantial substantial [PRIVILEGES AND IMMUITIES] [not used in fundamental discussion] Compelling Necessary/ narrowly tailored

Substantive DP and ECONOMIC liberties Lochner 1890s-1937

o Court invalidates laws on the grounds that they violated economic liberty protected by due processo Substantive right: Freedom of contracto Permissible state interest? Health, bargaining power (not legit)

Fit: did the law rationally protect the health of workers?o Level of scrutiny: fairly strict (sub & Sub)- ct did not defer so we assume that the law is fund.o Why is it wrong?

Not enough deference to elected branches (Holmes’ dissent); Right is not in the constitution; Protected the wrong kind of right

Demise of Lochnero Criticisms: too much judicial activism, inconsistent application, favored employerso West Coast Hotel 1937: switch in time, cts were invalidating all of FDRs new deal legislation.

Roberts switches vote to avoid packing the court. Upheld minimum wage law for women. Substantive right: Right to contract not in constitution, not fundamental Permissible state interest: govt can regulate for any legit purpose Level of scrutiny: Rational Basis- defer as long as reasonable

Modern Approach to Economic Legislationo Lee Optical 1955: upheld law forbidding optician from fitting/duplicating lenses.

It is for the leg., not the cts, to balances the disadvantages of the new requirement. Just need conceivable rational relationship to any legitimate end (almost like a political ?)

o Punitive Damages- Heightened Due Process (Legit interest & necessary fit)o United States v. Carolene Products Co.: minimum rational basis standard that continues to the

present to govern due process review of economic legislation. Courts generally presume laws are constitutional unless in FOOTNOTE 4

Modern protection of Property Rights/ Economic Rights Takings clause (just compensation clause): 5th amend: Private property shall not be taken for public use

without just compensation (1st right incorporated into 14th amendment’s DPC)o Public bears the cost of public land acquisition. It is not fair to force the person who owns the

property to absorb the cost of eminent domain.o If the federal government does the taking: What enumerated power is it acting under?

Doctrinal Frameworko Physical occupations: govt. actually physically takes the land- PER SE TAKING


o Regulatory takings: Govt. regulates the property in a manner that diminishes the value to the point that it is an effective taking of the property compensation

Penn Central Factors: Economic impact Distinct investment-backed expectations Character of governmental actions

o “Public use” requirement Kelo v City of New London, 2005 [Public Use = Public Purpose] [ppl got pissed] Taking for econ mixed use dvlpmt to give to a priv entity- pub wouldn’t have access to all Genuine public PURPOSE (not use)?- econ. rejuvenation/beautification Judicial scrutiny: substan. deference to govt. determining a public purpose

Contract clauseo Art 1 s 10: No state shall …pass any law… impairing the obligation of the contractso Only applies to state legislation and to existing contract obligations & substantial impairmentso Most contract cases are now brought under Substantive Due Processo Relevant standard of scrutiny:

Private contracts ~ intermediate Government contracts ~ Strict- lot of temptation for self-dealing with the govt. and its own

contracts. When the govt. disturbs a contract to which it’s a member courts must make sure its not screwing the other party

Substantive Due Process- NON ECONOMIC RIGHTS Carolene Products Footnote 4

o What the ct’s role may be going forward w.r.t. individual rights. Might be cause for more aggressive review when we are talking about (1) an enumerated rt OR it might not make sense to defer to (2) laws that inhibit the political process itself OR where the (3) rt involves discrimination against a discrete and insular minority who may not be able to protect itself through the political process

Privacy Rights:o Meyer v. Nebraska: law against teaching German materially interfered w/calling of modern

language teacherso Pierce v. Society of Sisters: law forcing kids to go to public school unconstitutional. Fundamental

right to rear a child Griswold v. Connecticut, 1965 (rejects ban on contraception)

o Upholds un-enumerated rights of basis of DPC, but “different” than Lochnero Fundamental Right to Privacy (majority) strict scrutiny

1st: rt of association 3rd: rt not to have govt. put troops in your house 4th: unreasonable search and seizure 5th: against self incrimination 9th: other rights retained by the people Zone of privacy created by several fundamental const’l guarantees & their penumbras Tried to make a textual grounding to distance from Lochner

o Scope of the right Freedom from overbroad invasions of privacy in the marital relationship Goldberg/warren/brennan: in 9th amend. – allows you to recognize non-textual rights Harlan- just accept it as substantive due process White- ban on contraceptives doesn’t enforce the states goal of cracking down on illicit

sex. Even rational basis review would find this unconstitutional Black- dissent- wanted wholesale incorporation of the first 8 just to avoid this confusion of

“extra” rights. Just those in the constitution Eisenstadt v. Baird: 1972, discrimination between married/unmarried people is not constitutional

under the equal protection clause- expanded Griswold Roe v. Wade 1973

o Texas statute criminalized abortion unless necessary to protect women’s life


o [one of 2 exceptions to mootness- capable of repetition yet evading review- can go for injunction] o Court just listed policy considerations and said the right to an abortion was fundamental o Fundamental right triggers strict scrutiny and needs a compelling state interest

State interests in protecting safety of health care become compelling after the 2nd trimester, protecting the life of the fetus after viability

1st trimester- no regulation, up to woman and physician 2nd – reg. in interest of protecting maternal health 3rd - protecting life after viability (can forbid abortions)

o Life or health exception even if govt’s interest in fetus is compelling: Considered a super-fundamental right b/c it trumps a compelling state interest in a narrowly tailored law. Doesn’t have to do with abortion but with the women’s own constitutional right to her health/safety

Implicit right to life or health—but nothing that says the government has to give it too you- abortion funding. Just can’t put an obstacle in the path

o Word person in the 14th amendment does not mean the unborn- most of the uses of the word person in the Constitution apply only post-natally, none indicate a pre-natal application

o [difference with Lochner- privacy is more fundamental than right to contract, Constitution isn’t about picking an economic system but about protecting liberty]

The Politics of abortion, 1973-1992o Reagan comes to office and wants to overturn Roeo Webster v. Reproductive Health Services (1989): Upheld MO law prohibiting govt. funds for

performing/counseling abortions but didn’t overturn Roe.o 1991: Court granted cert for Casey right before the 1992 Presidential election. Roe helped keep the

GOP coalition together, if it was overruled the coalition may fall apart. Voted to overturn, but 2 weeks later Kennedy had 2nd thoughts

Planned Parenthood v. Casey (1992)o Retains Roe’s central holdingo Right is based on the constitutional protection of marriage, contraception, child-rearing,

intimate and personal choices. Central to dignity and autonomy [much broader than Griswold] Right to Bodily integrity? Equality- biological fact that only women can become pregnant can’t be used by govt. to

effectuate certain choices that cause social subservience. o Stare decisis. Not sufficient grounds to overrule Roeo Talk about the legitimacy of the courto Rejects the trimester framework

Prior to viability Does the reg place an undue burden on the women’s right to terminate? [Undue

burden- purpose/effect of placing a subst obstacle in the path of woman’s choice] Perfectly appropriate for the state to encourage childbirth over abortion from the

moment of conception Post viability

Same as Roe. The st’s interest sufficiently strong to completely proscribe Life or health exception- same. Must have one.

o Level of Scrutiny: Undue Burden- not normal frameworko 24 hour waiting period and provision of info- not undue burden. o Spousal notification- undue burden- can lead to domestic violenceo Provider reporting requirements- fine, may make more costly- oko Parental consent- fine as long as there is a judicial bypass

Abortion Fundingo Negative liberty- Freedom FROM government regulation- no guarantees that people in practical

terms will be able to exercise the rights- constitutiono Positive liberty- affirmative liberty to do somethingo Government may not be able to REGULATE abortions, BUT govt. does not have to SPEND on themo Maher v. Roe:


Upheld regulation granting Medicade benefits for childbirth but not medically unnecessary abortions

Strict scrutiny not warranted because the unequal treatment of abortion did not interfere with the fundamental right expressed in Roe.

It is an indigent women’s own indigency that interferes, the state does not affect it. o Harris v. McRae: rejects challenges to the Hyde amendment

Allowed state to bar federal payments for most abortions (except rape/incest/life threatened) even if medically necessary

Whether a freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress, not a matter of constitutional entitlement.

o Rust v. Sullivan If a woman asked about abortion, you don’t have to recommend anything. No right to have

the abortion subsidized Sexual Autonomy

o Bowers v. Hardwick Upheld anti-sodomy statute as applied to homosexuals Court asked “Is there a fundamental right for homosexuals to engage in sodomy?” - NO

No connection to family, marriage, procreation Not deeply rooted or implicit in our scheme of ordered liberty

Maj rejected the claim that morality alone was insufficient to provide a rat’l basis for law Overturned 17 years later

o Lawrence v. Texas 2003 Substantive right: right of adults to engage in consenting, non-commercial, private

sexual activity w/no injury to 3rd parties regardless of marital status Harm to 3rd parties cannot include moral offense (traditionally enough to meet

rational basis review) Reserves decision on whether there is a right to marriage Usually deviant sexual activity has been in the purview of the States Is it fundamental?

Seems to create a fundamental right BUT ambiguouso Perry v. Schwarzenegger- district court opinion

Just persuasive authority Right to Marry, A fundamental right?

Yes, so strict scrutiny appropriate but he applies rational basis The state’s potential interest

Preservation of traditional institution of marriageo Preserving social unito Preserving tradition

Promoting opposite sex parenting Best interest of children

o over & under inclusion according to Judge Walker. Gay couples can already raise kids. Heterosexual couples have no obligation to have kids

Moral feelings against homosexual marriages/relations: Off the table- Lawrence Equal Protection

Ct claims this is a case of discrimination based on sex (gets intermediate scrutiny), not just sexual orientation (may not be subject to anything over rational basis)

Other due process rights, fundamental or noto Family and child rearing - fundamental o Medical Treatment: Assumed the existence of a right to refuse unwanted medical treatment

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