CONSTITUTIONAL LAW PROFESSOR KU

COURSE OUTLINE FALL 2008

What is the Constitution?
- Special form of law that is fundamental and unique. It is the SUPREME law of the land.
- Purpose? To set the tone for the document and the serious intent for the document. Sets out the
purpose of the document.
- Setting? Was created during a time when the country existed but it was not quire clear. The
Country was created in some sense by the Constitution and Government was set up by the
Constitution as well.
- Who are the PEOPLE?
o White, land-owning men b/c they were the only people who could vote. Each state ratified
the constitution in their own ratifying conventions. The people within the states elected
individuals to go vote for them.
o However, compared to governments of its time, the US Government was the most LIBERAL
- Source of Constitutions power?
o Many countries say the king gets the power from God. In the US, the PEOPLE empower the
government. The people are the sources of the Constitutions authority. No other law in the
United States is created in this way.
Article V How to Amend the Constitution
- PROCEDURE: 2/3 of the House and Senate OR 2/3 of the Conventions of the several states (all the
states) AND of all of the states. THIS IS VERY DIFFICULT TO ACCOMPLISH! (only 17x in 220
years). To pass a law, you only need 51% of Congress AND the President to agree
- The Constitution is VERY DIFFICULT to change:
o This is good because there will be no rash decisions made
o Good because it is difficult to move power around throughout the branches of government
A More Perfect Union
- Founders wanted to create a union of states but allow them to be a part of one happy nation.
Unify the states. Biggest problem is relationship between the national government and state
governments.
Establish Justice .. to ourselves and our Posterity
- Constitution should or hoped that it would last FOREVER.
SUMMATION: The people created the Constitution that would be the supreme law of the land.
It is very hard to change and it binds people long after the People who actually voted are
dead.
Scalia ORIGINALISM
- JUSTIFICATION: Respect for the past. People who drafted the Constitution had very good ideas so
we should stick to them. Scalia generally says that his method is the least terrible method
because it leaves less room for manipulation.
- Focuses on the means rather than the ends. Establishes the meaning of the Constitutional test
in 1789. Whatever the framers of the Constitution thought that it meant, that is what it SHOULD
mean. Is not the same as plain meaning because we are going only with what the meaning of the
Constitution was in 1789. It matters only what the text meant in 1789
- Originalism the theory of interpreting the Constitution by establishing the meaning of the
Constitutional text as it was interpreted when it was first established
Breyer ACTIVE LIBERTY
- Should interpret the Constitution with an increased emphasis upon the peoples right to an active
and constant participation in collective power. Interested in thinking about what people RIGHT
NOW think that the Constitution should mean. Wants to balance the individual rights protected in
the Constitution and also the collective needs of the people. Should interpret the Constitution while
thinking about how it will affect peoples ability to govern and participate in the Democratic
government. Need to focus on what is going on NOW and the CONSEQUENCES of the
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decisions made. What people this that the Constitution should mean right now in terms
of the consequences of todays actions.
Appointments Clause (Article II)
He [the president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
all other Officers of the United States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department
*No textual authority for removal of officers. Scalia says that in the power to appoint it is
implicit to remove. Scalia says the king had the power to remove so the president can
remove. Breyer would say that we should think about the political consequences of removal.
Who Interprets the Constitution?
- Four Governmental Institutions
1. Courts; 2. Congress; 3. President; 4. States
- The Supreme Court gets the Final Word on governmental authority over the Constitution. Judges
get the LAST WORD because they are limited in their ways. There is also an instinct that judges are
more trustworthy.
MARBURY v. MADISON (1803, p. 1)
NO ORIGINAL
JURISDICTION
- FACTS: Jefferson and Marshall were political enemies. Jefferson was President, Marshall was the
Chief Justice of the Supreme Court. The night before Jefferson became president, John Adams was
rushing to make midnight appointments before he left office. Marbury was a justice of the
peace. When Jefferson took office, he told Madison to withhold the midnight appointments and
Marburys appointment was among those. Marbury filed a writ of mandamus stating that he
wanted his commission delivered. Jefferson refused and this was the first real divided political
dispute. Marbury has the right to the commission b/c he has a vested legal right to the position.
Marbury has no remedy. EXCEPTION TO JUDICIAL REVIEW: No legal remedy if there is a political
question even if there is a legal right. A political question is NOT something that the court could
examine. Marbury wants the writ of mandamus to go to Jefferson so that he can get his
commission. 13 of the Judiciary Act of 1789 states that the Supreme Court shall have the
power to issue writs of mandamus in cases warranted by the principles and usages of law, to any
courts appointed, or persons holding office, under the authority of the United States
- RULE: 13 is arguably in conflict with Art. III, 2 of the US Const. MAIN PROBLEM: Congress
was trying to give original jurisdiction with 13 to the Supreme Court. Art. III, 2 states
that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors (etc.) In
all other cases the Supreme Court shall have appellate jurisdiction.
- HOLDING: Congress cannot modify the original jurisdiction of the court because it is already in the
constitution. The use of 13 is UNCONSTITUTIONAL here. Courts have the final word on what
the Constitution says. SUPREME COURT DOES NOT HAVE ORIGINAL JURISDICTION TO HEAR
THIS KIND OF CASE
SUPREMACY CLAUSE
Article VI, cl. 2: This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof: and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding
*Under Article VI, the Constitution, the laws of the US, the US treaties, etc. are all supreme to STATE LAW
Supremacy Clause
1. Laws of the US must be consistent with the Constitution
2. Distinguishing laws made under the old constitution with the new Constitution
3. Procedural requirement
NIXON V. UNITED STATES (1993, p. 26)
POLITICAL QUESTIONS
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FACTS: Walter Nixon was a former Chief Judge of the US and was convicted by a jury of two counts
of making false statements before a federal grand jury and sentenced to prison. He refused to
resign from his office as a judge and continued to collect his judicial salary while serving out his
prison sentence. MAIN POINT: Nixon argued that Senate Rule XI violated the
constitutional grant of authority (under Art. I, 3, cl. 6) to the Senate to try all
impeachments because it prohibits the whole Senate from taking part in the evidentiary
hearings. It involves a political question and therefore nonjusticiable. He didnt have a
hearing before the whole Senate.
RULE: The common sense meaning of the word sole is that the senate alone shall have authority
to determine whether an individual should be acquitted or convicted.
HOLDING: Opening the door of judicial review to the procedures used by the Senate in
trying impeachments would expose the political life of the country to chaos.
CHALLENGE TO THE IMPEACHMENT PROCESS WAS NON-JUSTICIABLE. POLITICAL
QUESTION. Flood-gates argument.
Article I, 3, cl. 6 The Senate shall have the sole Power to try all impeachmentsand
no person shall be convicted without the concurrence of two thirds of the members
present

POLITICAL QUESTIONS
- Courts have to judge whether the Constitution has committed another agency of government to
determine the issue that is raised. A finding of nonjusticiabilitly is different from a courts
deciding that a wide realm of governmental behavior is constitutional. It forecloses a wide-range of
issues to be tried in the courts.
Coleman v. Miller Whether a state could ratify a constitutional amendment that it had previously
rejected and whether a proposed amendment lapses if not ratified w/in a reasonable time were
nonjusticiable political questions
Gilligan v. Morgan Students at Kent State sought relief against govt officials to prevent the repetition
of the events that occurred. The complex, subtle, and professional decisions as to the composition,
training, equipping, and control of a military force are essentially professional military judgments, subject
ALWAYS to civilian control of the Legislative and Executive branches which are periodically subject to
electoral accountability
Vieth v. Jubelirer Scalia that no judicially manageable standards exist to determine when partisan
political gerrymanders of voting districts violate the constitution.
Pacific States Tel. v. Oregon
POLITICAL
QUESTIONS
- FACTS: Four years after Oregon amended its constitution to allow the people to enact laws through
an initiative process, petitioner challenged a tax enacted by an initiative on the ground that the
process violated Article IV 4, which provides that US shall guarantee to every state in this Union a
Republican form of government.
- HOLDING: The case presented a political question.
BAKER V. CARR (1962)
POLITICAL
QUESTIONS
- FACTS: Forced TN legislature to reapportion itself on the basis of population. Case ended
traditional overrepresentation of rural areas in legislature and established that a court intervene in
apportionment cases.
- RULE: Not every case which touches foreign relations lies beyond judicial cognizance.
- HOLDING: POLITICAL QUESTIONS. Presents a justiciable question under Equal Protection
Clause. Ruled that every citizens vote should carry equal weight, regardless of the voters
place of residence.
- TYPES OF POLITICAL QUESTIONS (any one of them can invoke a political question):
1. A textually demonstrable constitutional commitment of the issue to a political department
2. A lack of judicially discoverable and manageable standards for resolving it (i.e.
Gerrymandering to divide a geographic area into voting districts so as to give unfair
advantage to one party in elections)
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3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion. (i.e. Foreign policy decision recognizing a state which is acknowledging
that when a state exists, the court can decide how a law may apply to a state, but it must be
recognized first)
4. Impossibility of a courts undertaking independent resolution without expressing lack of
respect for Congress and the President (i.e. whether or not you should allow a lawsuit
against a foreign country)
5. An unusual need for unquestioning adherence to a political question already made (is there
a war or not)
6. The potentiality of embarrassment from multifarious pronouncements by various
departments (the court should avoid making a statement on something when the other
depts. already decided that issue)
Goldwater v. Carter
NONJUSTICIABLE
- FACTS: Revd decision that president had power to terminate treaty w/ Taiwan w/out congressional
approval.
- HOLDING: Believed that the controversy is a nonjusticiable political dispute. While the
constitution is express as to the manner in which the Senate shall participate in the ratification of a
Treaty, it is silent on abrogation.
CONGRESSIONAL REGULATION OF JUDICIAL POWER
- Congress possesses the power to regulate the jurisdiction of the federal courts. The Supreme
Courts appellate jurisdiction is in their own discretion. Article III provides that judicial power be
vested in one Supreme Court, and in such inferior courts as congress may from time to time ordain
and establish.
EX PARTE MCCARDLE (1869, p.42)
POLITICAL QUESTIONS
- FACTS: Congress empowered federal courts in 1867 to grant writs of habeas corpus in all cases
where any person had been restrained of his or her liberty in violation of federal law. The 1867 Act
was intended to establish federal authority to review detentions by state and local authorities.
McCardle was racist editor of the Vickburg Times and was imprisoned by the military government in
Miss. pursuant to the reconstruction acts for publishing incendiary and libelous articles tending to
incite violence and impede Reconstruction. McCardle appealed to the Supreme Court under the
1867 Act. In 1868, Congress passed act to repeal 1867 Act.
- HOLDING: BECAUSE THEY STRIPPED THE ACT, THE COURT NO LONGER HAS JURISDICTION
OVER HIM, AND SO HE CANT CHALLENGE CONGRESSS STRIPPING BECAUSE IT IS A
MOOT POINT BUT HE IS STILL IN PRISON. Supreme Court loses its jurisdiction here. He
had other avenues for relief.
- MAIN POINTS OF HOLDING: (1) Congress has full authority to strip jurisdiction of the Supreme
Court (2) Congress has authority as long as it does not remove ALL federal judicial review (3)
Congress has authority except when congress is seeking to reach certain outcomes.
United States v. Klein Held unconstitutional a statute directing the federal courts to dismiss for want of
jurisdiction in any suit in which the P relied on a presidential pardon to prove loyalty during the Civil War
Martin v. Hunters Lessee - Constitutions language and structure require some federal court to rule on
claims of federal right. Constitution requires all branches to be equal, but that Federal Courts play the
checking and balancing role.
Habeas Corpus Jurisdiction - Suspension Clause of Art. 1, 9, cl. 2 Provides that the privilege of
the writ of habeas corpus. A judicial writ used to inquire into the lawfulness of detentions. Shall not be
suspended unless when the cases of rebellion or invasion of public safety may require it
INS v. St. Cyr Court cited constitutional questions that would otherwise be presented as a principal
ground for holding that federal statutes barring judicial review of certain deportation orders did not deprive
the federal courts of habeas corpus jurisdiction to determine whether the INSs decisions rested on an
accurate interpretation of substantive law.
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DISCRETIONARY REVIEW
- Supreme Courts original jurisdiction 28 USCA 1251. 1254 (federal courts of appeals) and 1257
(state courts).
UNITED STATES SUPREME COURT RULES
Rule 10 Considerations Governing Review of Writ of Certiorari
1. A review on writ of certiorari is not a matter of right, but of judicial discretion
2. Will be considered when:
A Ct. of App. has rendered a decision in conflict w/ a decision of another US court of
appeals
A state court of last resort has decided a federal question in a way that conflicts w/
another state court of last resort or a US court of appeals
When a state court or a US court of appeals has decided an important question of
federal law which has not been, but should be, settled by THIS COURT
PROBLEMS WITH JUDICIAL SUPREMACY
- Legal Legitimacy
Arising Under the constitution gives jurisdiction to hear cases involving the
constitution
- Separation of Powers
Creates imbalance b/c court has the final say court has ability, but is constrained
too.
- Counter-Majoritarian Difficulty
Invented by Alexander Bickel. Whenever the court strikes something down as
unconstitutional, they are almost always saying to some democratic majority, you
cannot have what you voted for
It is anti-democratic and puts the court in the position of deciding something antidemocratic. Sup. Ct. does what the constitution requires, rather than what the
people want
Cooper v. Aaron Arkansas said they do not have to desegregate the schools b/c the case did not involve
their state
Lack of Judicially Manageable Standards?
- How to judge the duty to try - Constitution does not clearly define it. Try does not equal
trial. If they cannot come up with a judicially manageable standard for try then they probably
cant find manageable standards.
- Lack of finality - Removal is supposed to be the end of the game here
- Difficulty of fashioning relief The Senate cannot reconvene and have another trial.
Is the Political Question doctrine a Constitutional Requirement or is it Prudential?
- If it is a constitutional requirement, it is required in the constitution (they must do it, it is there duty)
- If it is prudential, they can do it (i.e. you might have some right to do something, but prudence
counsels you to stay out of it)
Art. III, 1. 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. The judges, both of the
supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished during their continuance in office.
ALLEN V. WRIGHT (1984, p. 1549)
STANDING
- FACTS: Plaintiffs are not claiming any specific injury to their children, but they are saying that they
are harmed b/c of the way that the financial aid is being distributed. Children are deprived their
right to a tax exemption.
- RULE: In order to have standing, the plaintiff must have a personal injury. Requirements for
standing: a distinct and palpable personal injury that is fairly traceable and relief is
likely to follow from the decision.
- HOLDING: No standing to bring suit. No distinct and palpable injury exists. NOT fairly
traceable.
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BRENNAN DISSENT: Depends on the courts judgment as to what they think is the plausible
causation theory so we should let the case go forward. We should try to let the party prove that the
injury is fairly traceable.

STANDING Whether litigant is entitled to have court decide the merits of the dispute. Injury must be
distinct and palpable and not abstract or conjectural or hypothetical. Purpose of standing
inquiry is to measure plaintiffs stake in outcome.
Friends of the Earth v. Laidlaw Environmental Services Upheld standing under provisions of Clean
Water Act. Relevant injury is not injury to environment but injury to plaintiff and Ps suffered injury from
reasonable concerns that pollution had damaged land.
Heckler v. Mathews Statute gave larger Social Security benefits to women than to men and provided
that if courts should find the disparity unconstitutional, then womens benefits should be reduced to the
mens level. Despite that male Ps could achieve no material benefit from a decision in their favor, the
court upheld standing. Ps clearly asserted a right under Equal Protection.
Simon v. Eastern Kentucky Welfare Rights Org. Class action on behalf of all persons unable to
afford hospital services, held Ps lacked standing to challenge an IRS Revenue Ruling eliminating a
requirement that non-profit hospitals provide care for indigents.
Redressability If D has caused injury, relief against the D will ordinarily remedy the injury.
Los Angeles v. Lyons (p. 1558) P had been choked to unconsciousness by LA police after being
stopped for traffic violation. Alleged that department had a policy of applying life-threatening chokeholds
unnecessarily. Lyons sued for injunctive relief. P had standing.
Utah v. Evans Upheld standing to challenge census calculations in suit against Secy of Commerce and
Census Bureau.
*The court CANNOT have the final word on all questions reasoning for Political Question
doctrine.
Authority for Jurisdiction Stripping Article III
- Section 1: 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
- Section 2: [T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with
such exceptions, and under such regulations as the Congress shall make.
- They could have had a system (which they have in CA) where there is one federal supreme court
and then the state systems we have the state system and the federal system that are parallel to
each other here
- Until Congress gives them jurisdiction Courts do not have power! Federal courts have only
limited jurisdiction.
STANDING
- Article III, 2 - The judicial Power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which shall be made, under their
Authority; to controversies to which the United states shall be a party; to controversies between
two or more states; between a state and citizens of different states;, and between a state, or the
citizens thereof, and foreign states, citizens and subjects.
- Case or controversy there must be a real dispute involving real people who have something at
stake. They are limited to these topics listed in 2 when there is a case b/w real people
- If no case or controversy, will be no one to issue a remedy to this infringes on the separation of
powers
*NONE OF THIS APPLIES TO STATE COURTS ONLY TO FEDERAL COURTS
LUJAN V. DEFENDERS OF WILDLIFE (1992, p. 1568)
STANDING
- FACTS: About an Endangered Species Act which is a federal statute. Any private agency had to go
to the Secretary of the Interior to tell them whether or not you would harm any endangered
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species. The Defenders of Wildlife brought a case saying that this law applies to overseas products
as well as domestic ones. Defenders of Wildlife claim that they were injured in their ability to see
this wildlife because they often traveled abroad to look at this wildlife so if they do not meet with
the Secretary of the Interior, they will not be able to see the wildlife. There are people who really
do feel injured because they have never seen a species of wildlife that has gone extinct. Congress
said that basically anyone can sue anyone for endangering species. Any person may commence a
civil suit on his own behalf to enjoin any person, including the US alleged to be in violation.
- RULE: Congress CANNOT get rid of the case or controversy requirement. Congress can say that
anyone can bring suit but they must STILL satisfy standing. Standing is a true constitutional
requirement and not even Congress can rid of it.
- HOLDING: For standing, Ps must show injury that is concrete and particularized and actual or
imminent. Must be a causal connection between the injury and the conduct not from a third
party. This is NOT a personal injury in this case.
*The standing doctrine even restrains courts from requiring the government to comply with
the law.
McCULLOCH V. MARYLAND (1819, p. 58)
COMMERCE
and N&P CLAUSE
- FACTS: Maryland taxed any bank operating in the state without state authority 2% of the face
value of all banknotes unless it paid $15K tax. The first bank of the United States engaged in
private banking business but also acted as a depository for US funds wherever it established
branches. Second Bank of the United States refused to pay Maryland tax.
- RULE: This case settled the meaning of the Necessary and Proper Clause of the United States
Constitution and determined the distribution of powers between the federal government and the
states.
- HOLDING: The specific issues involved were Congress's power to incorporate the Second Bank of
the United States and the right of a state to tax an instrument of the federal government. The
Constitution does not have the work bank or incorporation in it. There is the power to lay and
collect taxes, borrow money, regulate commerce, declare and conduct a war, and to raise and
support armies and navies. The powers of the government are limited and its limits are not to be
transcended. Implicit power to have a bank that is not taxed. The Court invalidated
Marylands tax on the US Bank invoking the Supremacy Clause (Art. VI, cl. 2)
- Jefferson argued that the bank would be flatly unconstitutional, strictly reading the N&P
clause a national bank was in no sense ESSENTIAL to carry out the duties of the federal
government. Madison believed that the substance of the N&P clause was such an integral part of
the Constitution that its explicit presence in the text was unnecessary.
- Marshall This is a constitution we are expounding!! VERY BROAD READINGS
- Congress does NOT have the enumerated power to incorporate a bank. If the final
result is a constitutional end, the means must be constitutional.
- Necessary & Proper Clause Art. I, 8, cl. 18 To make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers vested by this
constitution in the government of the United States
US TERM LIMITS, INC. v. THORNTON (1995, p. 62)
TERM
LIMITS
- FACTS: Barring of the name of an eligible candidate for Congress from appearing on the general
election ballot.
- HOLDING: Held states have no power to add to the qualifications for members of Congress in Art.
I, 2, cl. 2 and Art. I, 3, cl. 3 and cannot bar the name of an otherwise-eligible candidate for
Congress from appearing on the general election ballot.
Kansas v. Colorado (1907, p. 64)
N&P
CLAUSE
- Congress has no legislative power to irrigate non-federal lands: it is enough to say that no
enumerated power, by any implication, refers to the reclamation of arid lands. The N&P clause is
not the delegation of a new and independent power.
PANAMA RR v. JOHNSON (1924, p. 64)
- FACTS: Federal law that increased the rights of injured seamen.
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HOLDING: Upheld the law. After the Constitution was in effect, the substantive law theretofore in
force was not regarded as superseded or as being only the law of the several states, but as being
the law of the US.

ERIE V. TOMPKINS (1938, p. 65)

NO FEDERAL
COMMON LAW
- HOLDING: Held in diversity cases federal courts could NOT disregard applicable state common law
to apply federal common law. Congress has no power to declare substantive rules of common law
applicable in a state whether local in their nature or general. No clause in Constitution confers this
power upon federal courts
ENUMERATED POWERS DOCTRINE - CONGRESS
- All legislative powers herein granted shall be vested in a Congress of the United States (Art. I,
1).
- WHATEVER POWERS THE FEDERAL GOVERNMENT DOES NOT TAKE IS LEFT TO THE STATES (10 th
Amend.)
ENUMERATED POWERS: Article I, 8
- Tax and spend, Borrow money, Regulate commerce (*most important), Naturalization, Coin money
and punish, Counterfeiting, Post offices, Copyrights and patents, Lower federal courts, Define and
punish offenses against law of nations, Declare war, Raise armies and navy, and call forth the
militia
Article I, 8, cl. 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of the United States or in any
Department or Officer thereof
Art. I, 8, cl. 3
Commerce Clause "To regulate Commerce with foreign Nations, and among the several States, and
with Indian Tribes."
Necessary & Proper Clause To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer
GIBBONS V. OGDEN (1824, p. 65)
COMMERCE CLAUSE
- FACTS: NY gave rights to Livingston to navigate/travel between NYC and NJ. NY statute granted
Livingston and Fulton exclusive right to navigate steamboats in state waters. Ogden got injunction
in state court against Gibbons. NY gave exclusive right to Ogden to navigate b/w NY and NJ and
Gibbons had license under Congress to do so also.
- RULE: Commerce is traffic but it also describes the commercial intercourse between nations and
parts of nations in all its branches, and is regulated by prescribing rules for carrying on that
intercourse.
- HOLDING: The Constitution authorizes Congress to regulate commerce with foreign nations and
among the several states, and with the Indian tribes. COMMERCE IS COMMERCIAL
INTERCOURSE. ONCE CONGRESS GETS INVOLVED, THEN IT IS FAIR GAME FOR ANY KIND
OF REGULATION IN THAT AREA.
1. Commerce which concerns more states than one
2. Not to those which are completely w/in a particular state
3. Can extend to within the territorial jurisdiction of the several states (as long as eventually
will happen)
Paul v. Virginia Insurance is NOT interstate commerce. Insurance sales is a STATE LAW QUESTION.
Kidd v. Pearson Manufacture of liquor that will be sold out of state.
The Daniel Ball The federal government CAN impose safety regulations if navigating in shallow water
w/in Michigan
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*There has to be the ability to extend power to activities that occur solely within the
state

Foundations for Extending the Reach of Congressional Power

- Significant problems concerning Congress commerce power have related to its use over:
1. National economic problems by regulating local aspects that may be neither commerce nor
among the several states (i.e. labor relations, wages in a local factor, crops produced and
used on a farm)
2. Disfavored local activities (i.e. gambling, prostitution, distribution of harmful or improperly
labeled food and drugs)
3. Other socially undesirable conduct (i.e. discrimination based on race, sex, age)
The Lottery case (Champion v. Ames) (1903, p. 69)
COMMERCE CLAUSE
- FACTS: Was shipping lotto tickets, but not selling them. Lotto tickets had potential for sale
articles of commerce.
- RULE: If article of commerce Can be banned from interstate commerce. Commerce can ban
interstate commerce.
- HOLDING: Even though there was no ready buyer when he was shipping the tickets,
they were still articles of commerce that COULD be sold. Was not an actual SALE as
interstate commerce, but it interstate travel with the potential for sale. No article of
commerce requirement anymore.
- DISSENT: The power to suppress lotteries belongs to the states and not to Congress.
Hoke v. United States (1913, p. 71) Established that Congress has power over transportation among
the several states. That the power is complete in itself, and that Congress, as an incident to it, may adopt
not only means necessary but convenient to its exercise and the means may have the quality of police
regulations
Houston, East & West Ry. v. United States (Shreveport case) (p. 71, 1914)
COMMERCE CLAUSE
- FACTS: ICC ordered TX to raise interstate railroad rates westward from Shreveport, LA to TX
markets.
- RULE: Close and substantial relation or effect limited by commerce clause. Close
relation to INTERSTATE commerce.
- HOLDING: Congress can regulate interstate traffic and can ALSO regulate those things that have a
close and substantial relation to interstate traffic. Where the power to regulate exists, it
dominates. Once Court says within commerce power, Congress can regulate every
aspect of it. ECONOMIC IMPACT TEST if economic impact, Congress can intervene.
Wisconsin R.R. Comn v. Chicago B & Q RR (1922, p. 73) upheld an ICC order raising Wisconsinprescribed intrastate RR passenger fares to equal those in interstate-commerce.
Stafford v. Wallace (p. 73, 1922) upheld federal regulation of rates and practices of persons engaged
in local buying and selling in stockyards. Court held if affects intrastate commerce interstate regulation
if fear of direct and undue burden on interstate
THE COMMERCE CLAUSE
Art. I, 8, cl. 3 Congress shall have Powerregulate commerce with foreign Nations, and among the
several states
- What is commerce? Commerce clause was meant to create a national unity for business and
economy opportunity
- What is Among the several states? More than two states. Congress could go inside states to
regulate
HAMMER V. DAGENHART (p. 73, 1918) [overturned by Darby]
COMMERCE CLAUSE
- FACTS: Congress passed a law prohibiting the shipping in interstate commerce any goods that
were produced in factories by children. Anything produced by children could not be part of
interstate commerce.
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RULE: Grant of power to Congress over interstate commerce was to enable it to regulate such
commerce, not to give it authority to control the states in their exercise of the police power of local
trade and manufacture.
HOLDING: Supreme Court struck down this federal regulation. Nothing can be stopped
through limiting interstate commerce here. MAIN POINT: Child laborers need protection but
should be regulated by state governments
HOLMES DISSENT: Motive DOES NOT MATTER. Congress has the power to regulate interstate
commerce.

BALDWIN V. GAF SEELIG, INC. (1935, p. 233)

COMMERCE
CLAUSE
- FACTS: NY regulated minimum milk prices for sales and prohibited sale in NY of milk bought
outside NY at lower prices.
- RULE: COMMERCE CLAUSE allows the intervention of the federal government to overrule NYs
regulation
- HOLDING: Held NY statute invalid. NY has no power to protect its legislation into Vermont by
regulating the price to be paid in that state for milk acquired there. Commerce is burdened
unduly by a regulation that ostensibly aims to ensure the observance of sanitary
requirements, but it does so in a way that is remote and indirect. This is an issue for
the federal government b/c it is reaching into VT which is not allowed by state
government.
CONSTITUTIONAL STRUGGLE: THE NEW DEAL vs. THE GREAT DEPRESSION
- The Commerce Clause was the enumerated power most directly concerned with business and
economic, or commercial, matters. Although the ingredients of the economic crises often preceded
the movement of goods across state lines, and occurred during the course of manufacture and
production, they were of national consequence because the products of the national economy were
distributed throughout a national market
Schechter Poultry Corp. v. United States (1935, p. 75)
- FACTS: Struck down a code, adopted under the National Industrial Recovery Act, to regulate trade
practices, wages, hours, and collective bargaining in the NY poultry wholesale slaughtering market
where 96% of the poultry cam from other states.
- RULE: The Direct Effect Test.
- HOLDING: Courts CANNOT regulate activities of poultry wholesalers b/c no direct effect on
interstate commerce here.
Carter v. Carter Coal Co. (1936, p. 76)
COMMERCE
CLAUSE
- FACTS: Trying to regulate all of the hours and wages of the coal industry.
- RULE: Direct Effects Test. Congress cannot regulate the coal mining industry. Expansion of
Schechter.
- HOLDING: Congress cannot regulate coal mining industry. Held that Commerce Clause did NOT
give Congress direct effect.
NLRB v. Jones & Laughlin Steel Corp. (p. 78, 1937) [cutback from Carter & Schechter]
COMMERCE CLAUSE
- FACTS: Do labor relations have a direct effect?
- RULE: Although activities may be intrastate in character when separately considered, if they
have such a close and substantial relation to interstate commerce that their control is
essential or appropriate to protect that commerce from burdens and obstructions, Congress can be
denied the power to exercise that control.
- HOLDING: Upheld application of the National Labor relations Act to the nations fourth largest
steel producer with facilities throughout the country, most of whose production was shipped and
sold in interstate commerce.
- DISSENT: Immediate effect in the factory may be to create discontent among all those employed
and a strike may follow which may result in reducing production and reducing the volume of goods
moving interstate.

10

United States v. Darby (1941, p. 79) (OVERRULES DAGENHART) (HUGE SHIFT FROM
DAGENHART b/c
COMMMERCE
FDR APPOINTED FOUR NEW JUDGES DURING THIS TIME BETWEEN DAGENHART AND DARBY)
-

FACTS: Prohibition of interstate traffic. The Fair Labor Standards Act governs labor for all factories
selling goods in interstate commerce and prohibits goods produced not according to standards.
FLSA prohibited goods not set to requirements from going into interstate commerce and set
minimum wages. They set minimum wages because of unfair competition, to put more money in
peoples pockets, and reduces the number of jobs. The FLSA is constitutional.
HOLDING: Court does not have to justify why. Can just prohibit it as long as SOME ISSUE with
interstate traffic. CAN regulate interstate traffic AND regulate methods and wages as long
as it eventually has some link to interstate commerce.
Any conceivable object of regulation will necessarily involve something that has
traveled in interstate commerce

United States v. Sullivan (1948, p. 83)

COMMERCE
CLAUSE
- Upheld conviction of druggist under the Federal Good, Drug and Cosmetic Act for selling two pill
boxes, in which he had placed 12 tablets, and failing to affix the required warning label that was
printed on the large bottle of pills brought from an in-state wholesaler, who had secured them
through interstate commerce. Commerce clause power to regulate branding of articles that have
completed interstate shipment and are being held for future sales.
Scarborough v. United States (1977, p. 83)
COMMERCE CLAUSE
- Fed. statute making it a crime for convicted felon to possess a firearm as long as there was a
minimal nexus that firearm had been involved in interstate commerce. Commerce power extends
to all activity substantially affecting commerce
Wickard v. Filburn (p. 83, 1942)
- FACTS: Agricultural Adjustment Act of 1938 on Filburn for raising 239 bushels of wheat in excess of
his marketing allotment. Basically, Filburn had farmed too much.
- HOLDING: THE BROADEST READING OF COMMERCE CLAUSE. Even if activity is local, it can
still have a cumulative effect that touches interstate commerce. Congress had a rational basis
for believing that cumulative effects would substantially influence market price.
Maryland v. Wirtz (p. 85, 1968)
- Upheld expanded coverage of FLSA. Regulating interstate movement of persons to achieve policetype objectives.
Perez v. United States (1971, p. 86)
- Upheld ban on extortionate credit transactions though purely intrastate because they may affect
intrastate commerce
ORIGINALISM
Textualism text is most important tool for interpreting what the constitution means
Original Intent stress on what the founders intended in their words (Like Justice Thomas)
Original meaning (Scalias role) thinks only about what the words meant to the drafters at time
of the drafting.
Defense of Originalism:
- Stability in interpretation
- The Legislature could change it
- Possibility of amending the constitution
Extending the Commerce Clause - Under McCulloch, Congress has power to authorize a bank, Federal
Reserve, and also to authorize it to lend money, which is relevant today with bailout bills, etc.
FDRs Court Packing Plan
11

FDR said he was trying to save the economy and Supreme Court was striking down all his laws.
Reelected in 1936 and decided to change size of Supreme Court. Introduced a bill to Congress to
appoint new judges to the Supreme Court. Congress did NOT permit FDR to pack the court but he
got his way anyway b/c 4 judges died or retired during his term.

HEART OF ATLANTA MOTEL, INC. v. UNITED STATES (1964, p. 87)

COMMERCE CLAUSE
- FACTS: The 1964 Civil Rights Act bans racial discrimination in public settings. Heart of Atlanta
Motel violated the Act. Court employs rational basis review. The motel is accessible to the
interstate and state highways.
- HOLDING: If you have SOME effect on interstate commerce and a HUGE moral wrong then you can
expand the commerce clause to this power. Substantial and harmful effect upon the commerce.
CAN GET REGULATED - INTERSTATE COMMERCE
Katzenbach v. McClung (1964, p. 88)
COMMERCE
CLAUSE
- FACTS: Birmingham restaurant eleven blocks from an interstate highway. Catered to a family and
white collar trade with a take-out service for African Americans, whom it had refused to serve since
opening in 1927. there is no claim that interstate travelers frequented the restaurant. Prevented
African Americans from buying prepared food served on the premises while on a trip. This
discourages travel and obstructs interstate commerce.
- HOLDING: Absence of direct evidence connecting discriminatory restaurant service with the flow
of interstate food is NOT a crucial matter.
Hamm v. Rock Hill (1964, p. 90)
- Vacated state trespass convictions for peaceful sit-ins at white lunch counters. Congress can
extend immunity to pending state prosecutions.
Hodel v. Virginia Surface Mining and Reclamation Association (1981, p. 91)
- Unanimously upheld the Surface Mining Control and Reclamation Act of 1977: In light of the
evidence available to Congress and the detailed consideration that the legislation received, we
cannot say that Congress did not have a rational basis for concluding that surface coal mining has
substantial effects on interstate commerce
United States v. Morrison (2000, p. 91)
[todays law]
COMMERCE CLAUSE
- FACTS: Violence Against Women Act. Gave women right to a federal cause of action for victims of
gender-based violence. Rape or gender-based violence federal court suit.
- HOLDING: Three categories (1) use of channels of interstate commerce (i.e. Heart of Atlanta); (2)
Instrumentalities (Shreveport); (3) Substantial effect test (Jones/Darby broadest category). Court
said there was a substantial effect on commerce and Congress studied it for four years (Joe Bidens
legislative baby). NON-ECONOMIC here and no jurisdictional element. Court does NOT defer to
Congresss judgment that there is substantial effect on interstate commerce.
Gonzales v. Raich (p. 102)
- FACTS: Wanted to grow marijuana for their own personal medical use. Controlled Substances Act
bans a lot of drugs. This person says that the Federal Law cannot be applied to him b/c he was
growing it for medical use.
- HOLDING: This is clearly economic activity b/c it is so intertwined with the commerce of
marijuana. Because we need to regulate commerce, it is an economic activity. Upheld Congresss
power to apply Controlled Substances Act.
- Scalias Concurrence: Says that the N&P clause mandates that we ban growth of marijuana.
Jones v. United States (p. 109)
- FACTS: Federal arson statute regulation.
- HOLDING: Held that federal arson statute covering buildings used in any activity affecting
interstate or foreign commerce did not apply to an owner-occupied residence not used for
commercial purposes. Congress could specifically safeguard the insurance injury, by prohibiting
arson against insured property, which would include almost all buildings
12

Pierce County v. Guillen

- FACTS: Law was aimed at improving safety in the channels of commerce and increasing protection
for instrumentalities of interstate commerce.
- HOLDING: Upheld Congress power to grant a privilege from pretrial discovery in state and federal
courts for information compiled in connection with a federal program funding highway
improvement.
Solid Waste Agency of Northern Cook County v. Untied States Army Corps of Engineers (2001)
- FACTS: Migratory birds and Clean Water Act.
- HOLDING: Interpreted the Clean Water Act as not covering non-navigable isolated intrastate
waters used as a habitat for migratory birds, thus avoiding significant constitutional and federalism
questions. Court should prevent Congress from preempting the states or regulating local activities
that affect interstate commerce unless Congress balances advantages and disadvantages of the
proposed action.
Commerce Power after the New Deal Revolution
- What is Commerce after Darby? After Darby, the fact that something is not commerce in the
traditional sense is NOT an exception to applying the commerce clause. Any activity, whether or
not it is economic CAN be commerce under the clause.
- What is among the states? Any activity whether or not it is direct. MUST be more than minor
effect, but substantial effect is NOT defined. You can also aggregate the effects with cumulative
effects test.
- What is to Regulate? Congress can regulate every aspect of activity that is bound to have a
substantial effect on commerce
Lopez v. United States (1995)
- FACTS: Federal law banned the possession of guns near schools. It is non-economic activity.
Gun-Free School Zones Act of 1990 made it a federal crime to knowingly possess a firearm in a
school zone.
- HOLDING: If it is NON-ECONOMIC ACTIVITY (i.e. criminal activity), then it is within the states
police power and commerce CANNOT regulate it if no direct effect. Radical change from 1947.
MUST come up with evidence that there was an interstate effect. (1) No jurisdictional element here;
(2) No congressional finding here; (3) No link with substantial effect on commerce. The Act was
found to EXCEED Congress authority under the Commerce Clause.
Willson v. Black-Bird Creek Marsh Co. (p. 224)
- Upheld Delaware statute authorizing a dam that obstructed a small navigable stream, impeding the
passage of a boat licensed by the federal navigation laws state law in conflict with a federal act
would be VOID
Cooley v. Board of Wardens (1852, p. 225)
- FACTS: Pennsylvanias 1803 law that required ships using the Philadelphia port to hire a local pilot,
considered in the light of a 1789 Act of Congress providing that harbors and ports of the US shall
continue to be regulated in conformity with the existing laws o the states or with such laws as the
states may hereafter enact. Congress could regulate riverboat pilots.
- HOLDING: Upheld the law. UNTIL CONGRESS SHOULD FIND IT NECESSARY TOEXERT ITS POWER,
IT SHOULD BE LEFT OT THE LEGISLATION OF THE STATES. As long as Congress allows them to do it,
they can.
Dean Milk Co. v. Madison (1951, p. 235)
COMMERCE CLAUSE
- FACTS: The city of Madison, Wisconsin decided that you can only sell milk within the city that has
been processed within 5 miles for safety because they did not know if it would be safe b/c only
regulated w/in 5 miles. Discriminates against outside milk producers.
- HOLDING: Court said this violates the Commerce Clause b/c Madison consumers would be
safeguarded adequately under this ordinance that allowed for a system of regulation. If there are
other reasonable alternatives to achieve your goal, then the discriminatory statute
would probably violate the commerce clause. There are other ways to keep the milk safe.
Breard v. Alexandria (1951, p. 237)
13

Applies Deans affects test and Baldwins test. REGULATION AGAINST DOOR-TO-DOOR
SALESMEN. Upheld the ordinance prohibiting door-to-door salesmen b/c no less restrictive
alternative was available.

Hunt v. Washington State Apple Advertising Commission (1977, p. 238)

- Said North Carolina violated Commerce Clause when it barred closed apple containers bearing any
grade marks except those of the USDA or a not graded mark. A finding that state regulation
disproportionately disadvantages interstate commerce shifts burden onto state to justify its
regulation.
Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988, p. 239)
- Court applied Pike balancing to invalidate an Ohio statute tolling statute of limitations when foreign
corporations did not appoint an agent to accept process for the exercise of general judicial
jurisdiction.
- Where burden of state regulation falls on interstate commerce, restricting its flow in a manner not
applicable to local business or trade. We find that the burden imposed on interstate commerce by
the tolling statute EXCEEDS any local interest that the state might advance.
Granholm v. Heald (2005, p. 241)
DORMANT
COMMERCE CLAUSE
- Held that state regulatory schemes allowing in-state wineries to sell wine to consumers in that state
but prohibiting out of state wineries from doing so, violated Dormant Commerce Clause.
New Energy Co. of Ind. v. Limbach (1988, p. 241)
COMMERCE
CLAUSE
- Invalidated Ohio statute that provided a tax credit to users of ethanol that was produced in Ohio or
in a state that gave a reciprocal tax credit for Ohio-produced ethanol. Held that Ohio discriminated
in violation of Commerce Clause when it denied the tax credit for ethanol produced in Indiana.
West Lynn Creamery, Inc. v. Healy (1994, p. 242)
DORMANT
COMMERCE CLAUSE
- FACTS: Massachusetts taxed all sales of milk by wholesalers to Mass. retailers, regardless of where
the milk was produced. Proceeds from tax went to fund used to make subsidy payments to Mass.
milk producers. Tax was coupled with a subsidy.
- HOLDING: NO STATE ACTION (other than direct participation in a market in a purely proprietary
capacity) that has the effect of benefiting in-state interests at the expense of out of state interests
are CLEARLY immune from scrutiny under DCC
- Scalia Concurrence: Even where funding does not come in any part from taxes on out of state
goods, merely assisting in-state businesses neutralizes advantages possessed by out of state
enterprises. Four Devices: (1) discriminatory tax upon the industry (unconstitutional); (2) tax upon
the industry that is nondiscriminatory in its assessment but has an exemption for in-state members
(unconstitutional); (3) nondiscriminatory tax upon the industry, revenues from which are placed in a
segregated fund, which is disbursed as rebates to instate members (constitutional); and (4) nondiscriminatory taxation of the industry, a subsidy of the instate members funded by the states
general avenues (unconstitutional)
Three Categories of Commerce Clause Power
1. Channels of Interstate Commerce (i.e. hotels)
2. Instrumentalities (i.e. railroads, etc.)
3. Substantial Effect activities regulated must have a substantial effect on interstate
commerce
PREEMPTION & DORMANT COMMERCE CLAUSE
- Are there some circumstances where even when Congress has not actually enacted a statute that
states are preempted or prohibited from passing laws on a specific subject?
o Gibbons v. Ogden
o Cooley v. Wardens
- Exclusive Power vs. Concurrent Power
o Concurrent power something that the states and the federal government can both act on
o Exclusive power ONLY the federal government can act
14

Power to regulate INTERSTATE COMMERCE IS EXCLUSIVE TO CONGRESS!

The commerce clause does not say that this power is EXCLUSIVE, but it is implied.
IF THERE IS AN IMPLIED POWER THAT CONGRESS CAN MAKE A LAW BASED ON THE
POWERS IN THE COMMERCE CLAUSE THEN THE STATE CANNOT APPLY THAT POWER
SORT OF LIKE PREEMPTION
Even when congress has done nothing, states CANNOT regulate any interstate
commerce

United States v. Butler (p. 115, 1936)

SPENDING
CLAUSE
- FACTS: A program for farmers. Agricultural Adjustment Act was New Deal program. You could
enter into a contract with farmers to grow less crops in exchange for a federal subsidy. Idea was
that if farmers went out of business it was good for the economy b/c price of the crops would
increase.
- HOLDING: The end is invalid so although the means are valid, it is NOT okay. Program was found
to exceed spending power of Congress. Courts says Congress could NOT do this. Congress was
using spending power for something that should be left to the states. YOU CANNOT SPEND ON THIS
NOT INCLUDED IN ARTICLE I. This power is reserved to the states.
Steward Machine Co. v. Davis (1937, p. 117) (Coercion Test)
SPENDING CLAUSE
- FACTS: Social Security Act program for unemployment compensation, proceeds of a federal tax on
employers went into the general federal treasury. These employers received 90% credit on this tax
for payments to a state unemployment compensation fund under a state law that met federal
requirements. States were unable to give requisite relief at this time. State governments were
being coerced to become the tools of the federal government.
- HOLDING: You cannot use spending power to accomplish things that would otherwise be
unconstitutional. The spending power has the same constitutional limitations as any of the other
powers. CANNOT USE SPENDING POWER TO VIOLATE THE STATES RIGHTS. Congress could not
actually order the states to create compensation funds, but they could do it through the spending
program. The Court agrees. Court did NOT recognize coercion here and there is no clearer
example than this b/c the national government took the states money and received nothing in
return if they did not comply.
Helvering v. Davis (p. 119) upheld SSAs old age pension program, supported exclusively by federal
taxes.
United States v. Gerlach Live Stock Co. (p. 120) upheld federal spending for large scale federal land
reclamation projects. Congress has substantive power to tax and appropriate for general welfare.
South Dakota v. Dole (1987, p. 120)
SPENDING
CLAUSE
- FACTS: Federal government has a highway fund program for the states. If they do not raise
drinking age to 21 lose 5% of highway funds. Since Congress cannot limit drinking age to 21
directly, they must do it through spending power.
- HOLDING: This is NOT coercive (5% is not coercive). General policy against drinking and
driving. Reasonably related spending must reasonably relate toe the regulation. No violation of
state sovereignty b/c state could deicide not to yield.
- OCONNOR DISSENT Invokes Madisonian conception saying that we should read spending power
to be limited to spending ONLY on things that we can otherwise do.
Sabri v. United States (2004, p. 123)
- FACTS: Tried to bribe state and local officials from government agencies.
- HOLDING: Distinguished Dole case b/c the bribery statute is authority to bring federal power to
bear directly on individuals who convert public spending into unearned private gain. Congress has
power to make it a crime to bribe state or local officials whose government agency received federal
funds in excess of $10K/year. Congress has Spending Clause authority to appropriate federal
monies to promote general welfare and N&P power to see that taxpayer money is used for that

15

The Spending Power - Spending Clause (Taxing Clause), Art. I, s. 1, cl. 1 Congress shall have
power to lay and collect taxes, duties, imposts, and excises, to pay the Debts and provide for the common
Defense and general Welfare of the United States
- This clause gives Congress power to TAX
o Powers of the Spending Clause:
1. Pay the debts of the United States
2. Provide for the Common Defense of the United States
3. Provide for the GENERAL WELFARE of the United States
Chae Chan Ping v. United States (The Chinese Exclusion Case May 13, 1889)
- FACTS: Chinese National went back to China and had permission to come back afterwards. When
he came back to US, they refused to let him in b/c while he was away, Congress passed a statute
banning Chinese Nationals who wanted to come back to US to work. This was the first time
Congress prohibited foreigners from coming into this country.
- HOLDING: Congress does NOT have the authority to pass a law banning the entry of foreigners
under Art. I, 8. The power to keep people in and out of the country is inherent to every country.
Not unique to the Constitution b/c every country has the power to keep out foreigners.
Madison View will promote, if not in the constitution, then it does not exist. Closer to
originalism. The spending power does not provide new subject matter. Must be explicit in constitution.
Hamilton View closer to functionalism b/c he construes general welfare broadly. In favor of
more federal power, not less, and more presidential power, not less. Power is ONLY LIMITED by the general
welfare provision.
Treaty Power, Article II, 2, cl. 2
- The President shall have the power to make Treaties, provided two-thirds of the Senators present
concur
Missouri v. Holland (p. 125)
N&P Treaty
Power
- FACTS: Treaty between US and Canada to protect migrating birds. Wildlife is a state issue, NOT
federal. No federal power to regulate wildlife.
- HOLDING: Congress has to implement a treaty and the N&P clause is the source of their power to
make this treaty. N&P Clause provides some power for Congress to carry out and pass statutes,
which includes some treaty-making powers. Court said according to Supremacy Clause, the treaty
trumps the power of the states. If we allow state laws to stand in the way of a treaty, then we could
not have ANY treaty.
CONGRESSIONAL FOREIGN AFFAIRS POWERS Under Art. I, 8
- To define and punish offenses against the law of nations
- To declare war
- To raise and support armies
- To provide and maintain a navy
- Make rules for regulation of the land and naval forces
- To provide calling forth the militia
- To provide for organizing the militia
EXECUTIVE POWERS
- Article II, 1, cl. 1 The executive Power shall be vested in a President of the United States of
America.
- Article I says herein vested which means whatever is in Article I (enumerated powers ONLY);
Article II says shall be vested so it is not limited ONLY to enumerated powers
- What is an executive power?
o The power to execute laws
o The president is likely to make decisions more quickly b/c he is only ONE person
o A president is ALWAYS on the job whereas Congress is busy doing a lot of things a lot of the
year
- Constitutional Presidential Powers (Article II)
1. Commander in Chief
16

2.
3.
4.
5.
6.
7.

Pardons
Treaties
Appointments
Also has veto powers, commissioning powers
Statutory Powers
Inherent Sovereignty?

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952, p. 151)
- FACTS: Steelworkers were threatening to strike. Truman said this could not happen so he ordered
an injunction to prevent the strike by taking over ALL of Americas steel mills. He thought the steel
strike would threaten national security b/c it was during the Korean War. Truman argued that this
was an emergency and he was trying to protect the country w/ his actions.
- HOLDING: Congresss laws do NOT authorize president to take over the mills. Commander in chief
power does NOT stretch as far as Truman wants it to. (JUSTICE BLACKS FORMALIST OPINION
3 boxes of government)
- JACKSONS CONCURRENCE (MOST FAMOUS FUNCTIONALIST OPINION): Presidential power
exists in three categories:
1. A statute is already on the books by Congress (Congressional authority)
2. President does something and Congress is silent
3. President is going against express will on Congress (if Congress exceeded their
power).
*This case falls into the third category. Congress already occupied this field, so
Truman had no basis to override.
Dames & Moore v. Regan (1981, p. 157)
- FACTS: President issued executive orders that suspended all claims in American courts that were
within the jurisdiction of the claims tribunal, (2) nullified all prejudgment attachments against Irans
assets in actions against Iran in American courts; and (3) ordered transfer to Iran of all its assets in
US banks, except for $1 billion to cover awards against Iran by claims.
- HOLDING: Upheld presidential executive orders to implement executive agreement b/w Iran and
the US for hostages.
United States v. Curtiss-Wright Export Corp. (1936, p. 162)
COUNTER TO
YOUNGSTOWN/EXECUTIVE POWERS
- FACTS: President prohibited the sale of arms to Bolivia and Paraguay who were in war. President
had the authority to ban the sale of arms to them. But if Congress had not delegated the authority,
the court suggested that the President had some power of his own b/c ANYTHING that relates to
foreign affairs MUST related to the Federal Government.
- HOLDING: If Federal Government does not have the delegated power, the power is supposed to
revert to the states. That is NOT what is happening here. The powers to declare and wage war,
conclude peace, make treaties, maintain diplomatic relations, etc. are powers of the federal
government. EXTRA-CONSTITUTIONAL POWERS are derived from English Crown
Campbell v. Clinton (2000, p. 165)
POLITICAL
QUESTION/NONJUSTICIABLE
- FACTS: Congressmen filed suit claiming that president violated the War Powers Resolution (WPR)
and War Powers Clause of the Constitution by directing US forces participation in the recent NATO
campaign in Yugoslavia. WPR gave 60 days, and he was there for 79 days. Congress voted against
requiring the president to immediately end US participation in the NATO operation and voted to
fund that involvement.
- HOLDING: NO STANDING because they are not sure that there is a war. Were unable to
determine a judicially manageable standard for what a war is POLITICAL QUESTION
NONJUSTICIABLE
*When there are political fights going on b/w Executive and Congress, they will not rule on it
b/c they do not want to get involved
Vesting Clause
- What is the biggest textual difference between the vesting clause (article II) and article Is clause?
o Congress has ONLY those legislative powers that are listed. The executives powers are NOT
listed.
17

Article I, 8 is source of ALL CONGRESSIONAL POWERS

Domestic Executive Power

- Rulemaking (i.e. Clean Air Act standards, securities regulation)
o This has to be something that is already a law in congress, a statute that delegates to the
president the power to make these rules
- Executive Orders (i.e. Emancipation Proclamation, Integration of Armed Forces)
o General executive power to carry out the general obligations of the whole government
- Spending money (or not spending money)
o i.e. the $750 billion bailout
External Executive Power
- Executive Agreements (i.e. Iran Hostages Agreement, made agreements, Iraq withdrawal
agreement)
- Adjudication of Cases (i.e. you must go to an executive judge to deal with federal issues i.e.
social security benefits, etc.)
FORMALISM
- Justice Blacks decision in Youngstown. Sets up boxes of rights of each branch of Congress.
FUNCTIONALISM
- Justice Jacksons decision in Youngstown. Three theories of government and presidents actions.
NONDELEGATION DOCTRINE Congress can delegate their powers, but must delegate their powers to a
committee that they are going to be the ultimate decider of (i.e. setting up an agency to oversee food,
etc.). Congress can do vertical delegation but NOT horizontal delegation.
Yakus v. United States (p. 180)
NONDELEGATION
DOCTRINE
- FACTS: WWII Emergency Price Control Act authorized the president-appointed administrator to
issue regulations establishing maximum and minimum prices and rents for almost everything.
Congress can shift it rule-making power to itself! There were some specific rules governing how far
the agency could go in their price controls so delegation is OK and prices are fair and equitable.
- HOLDING: The prices had to be fair and equitable which is an enormously malleable concept.
It would be really difficult for Congress to come to an agreement on the price control system so
when it goes to an agency, it is practical to give them this power b/c Congress is too disparate to do
this themselves.
Whitman v. American Trucking Associations Inc. (p. 181)
- HOLDING: Clean Air Acts delegation to the EPA to set air quality standards. Public health
intelligible principle
Chevron USA Inc. v. Natural Resources Defense Council, Inc. as elaborated in United States v.
Mead (p. 181)
- HOLDING: If Congress has explicitly left a gap for an agency to fill, the agencys interpretations of
its governing statute are valid UNLESS They are procedurally arbitrary, capricious, or manifestly
contrary to the state. When an agency interprets a statute that delegates power to it, they are
given VERY HIGH levels of deference in interpretation.
Loving v. US (p. 184)
- Held unanimously, on the assumption that its death penalty jurisprudence applied to courts-marital,
that Congress could delegate to President responsibility for prescribing aggravating factors
warranting capital sentences.
Delegated Powers
1. Must be something that congress has the power to delegate
2. Must be intelligible standard
3. Does not interfere w/ separation of powers
What is the source of the presidents legal authority to do something?
18

Delegated Powers are given to the President by Congress the vast majority of the presidents
powers are delegated by Congress the source of the authority are essentially statutes
Enumerated powers are those from the Constitution
Inherent Power? Things that are not given by Congress or by the Courts they are left over
powers

Delegation
- What is delegation? The process by which the president acquires powers for the executive
branch through Congress
- Why delegate? President can hire experts and Congressmen are not experts. Not
enough congressmen to do the job
- Types of Delegation that Executive Branch Engages In
1. Declare war power
2. Rulemaking power - Congress passes this power off to the executive branch - Congress cant
readily change the rules b/c they have to go back and vote on the rules
3. Spending power
Some Examples of Executive Agencies
- Commodities Futures Trading Commission
- Environmental
- Equal Employment Opportunity Commission
- Federal Housing Finance Agency
- Federal Labor Relations Authority
- Nuclear Regulatory Commission
- United States Information Agency
- Securities and Exchange Commission
- Federal Trade Commission
*The agencies are quasi-independent. They have power to write rules, enforce rules,
adjudicate disputes, etc.
Economic Stabilization Act of 2008 Some Principles Governing TARP
- (1) AUTHORITY the Secretary is authorized to establish the Troubled Asset Relief Program (or
TARP) to purchase, and to make and fund commitments to purchase, troubled assets from any
financial institution, on such terms and conditions as are determined by the Secretary, and in
accordance with this Act and the policies and procedures developed and published by the Secretary
- (1) protect the interests of taxpayers by maximizing overall returns and minimizing debt
- (2) providing stability and preventing disruption to financial markets
- (3) the need to help families keep their homes
- (4) in determining whether to engage in a direct purchase from an individual financial institution,
the long-term viability of the financial institution
- (7) the need to ensure stability for US public instrumentalities, such as counties and cities
- (8) protecting the retirement security of Americans
Appointment and Removal
- Constitution, Article II - He shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint and all other officers of the US and which shall be established by law, but
Congress may by Law vest the Appointment of such inferior officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments
- Cabinet Members Secretary of Defense, Secretary of State, Secretary of Treasury appoints
officers of the United States
- Congress gets to create office, but let President appoint officers of US which is governed by Art. II of
the US Const.
Myers v. US Postmaster Case (1926, p. 195)
REMOVAL
- FACTS: Can the President remove the postmaster without approval from the Senate? YES.
Postmaster is an OFFICER.
- HOLDING: Presidents executive power includes power to REMOVE executive officers of the US
even when their appointment was subject to the advice and consent of Senate. EXECUTIVE
REMOVAL POWERS VESTED IN THE PRESIDENT SO THAT HE CAN REASONABLY DO HIS JOB
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Humphreys Executor v. US Federal Trade Commission (1935, p. 195)

FOR CAUSE REMOVAL
- FACTS: Can the president remove the Commissioner of the FTC?
- HOLDING: Held Congress could limit the grounds for removal of a Commissioner of the FTC. FOR
CAUSE REMOVAL president has the power to remove people who were not appointed specifically
by him if their job reflects some quasi-legislative or quasi-judicial function and MUST be for cause
(must show misconduct).
Buckley v. Valeo (1976, p. 197)
WHAT IS AN
OFFICER OF THE US?
- FACTS: The Speaker of the House and President Pro Tem of the Senate appointed two
commissioners to the President. This is a problem b/c Congress cannot appoint. They can appoint
heads of departments who will then appoint inferior officers. Invalidated the Federal Election
Campaign Acts provision for the Federal Election Commission.
- HOLDING: Sets the definition of what an officer of the US is. If you have the authority to make
decisions and execute the laws you are probably an officer. Any appointee exercising significant
authority pursuant to the laws of the United States is an officer of the United States (i.e. Secretary
of State, Secretary of Treasury, etc.). Inferior officers derive their power from the principle officer
and cannot make real decisions.
Bowsher v. Synar (p. 198)
- FACTS: Balanced Budget and Emergency Deficit Act of 1985 set yearly permissible deficits with
the goal of reducing the federal deficit to zero by 1991. Comptroller General was given the power
to cut programs and reduce federal deficit.
- HOLDING: Held this procedure unconstitutional stating that Congress cannot reserve removal
power. Comptroller General is ONLY removable at the initiative of Congress not only by
impeachment but also by joint resolution of Congress at ANY time. The Comptroller General is part
of the legislative branch. Congress CANNOT appoint or remove so that is in violation of the
appointments clause. President gets to appoint and remove and when Congress encroaches, that is
a problem.
Morrison v. Olson (1988, p. 201)
- FACTS: Independent Counsel appointed by AG. Congress created the independent counsel to
investigate the Prez & VP. The AG must initiate the process in appointing the independent counsel
and a three judge panel appoints counsel. Attorney General can remove/fire independent counsel
but MUST be for cause. The AG is crucial here b/c the president is not directly involved b/c often
the independent counsel is investigating the president.
- HOLDING: Independent counsel is an INFERIOR OFFICER b/c he is appointed by the AG who is an
ACTUAL officer. Can ONLY be removed by AG. The president still has the power to fire him through
the attorney general b/c the president could remove the attorney general. Officers/inferior
officers if president appoints them directly, they are probably an officer
Free Enterprise Fund v. PCAOB
- FACTS: Public Accounting Oversight Board was created through Sarbanes-Oxley Act (SOX). PCAOB
was created b/c companies were not paying taxes correctly. PCAOB created standards for
accounting and conducting investigations to impose sanctions for violations, set ethical rules, etc.
PCAOBs members were not appointed by the Senate or the President, they are appointed and
removed by the SEC for cause. The president appoints members of SEC but removable for
cause except for the chairman who can be removed whenever.
- HOLDING: The problem is that the PCAOB is a very powerful agency with strong abilities and
president CANNOT fire them. People from the PCAOB are inferior officers and SEC is head and
they have someone to report to. Board members can be removed for cause by the SEC members.
Mistretta v. United States (p. 207)
- FACTS: Sentencing Reform Act.
- HOLDING: Upheld Sentence Reform Act of 1984 which created the US Sentencing Commission
charged with devising guidelines for federal sentencing that would establish ranges of determinate
sentences for categories of offenses. As a general principle, executive or administrative duties of a
nonjudicial nature may not be imposed on Article III judges.
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Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, Inc.
(1991, p. 207)
- Invalidated compact b/w DC and VA, approved by Congress, leasing Reagan and Dulles airports
from federal government
Edmond v. United States (1997, p. 208)
- HOLDING: Upheld authority of Secretary of Transportation to appoint civilian members of the
Coast Guard Court of Criminal Appeals which hears appeals from courts martial. These judges were
inferior officers, subject to appointment by heads of departments b/c the were supervised by the
Judge Advocate General, who could remove them without cause.
UNITED STATES v. NIXON (1974)
- EXECUTIVE PRIVILEGE IS NOT ABSOLUTE BUT RATHER A QUALIFIED PRIVILEGE
- FACTS: Burglary of Watergate Hotel. People who worked for Nixon were trying to wiretap the DNC
chairmans phone. During the investigation against the president and his officers, the independent
counsel wanted the tapes of the conversations in the Oval Office. Nixon refused to hand over this
tapes saying that they were under his executive privilege. The President does have executive
privilege to carry out his job so that he can execute the laws, etc.
- HOLDING: There is NO TEXTUAL BASIS for the executive privilege here. Each branch needs its
power to do its job but there is a FORMAL theory that each branch is independent. There are times
when the executive branch could be overwritten. QUALIFIED PRIVILEGE. Privilege and presumption
of privilege but it can be overcome if outweighed by DUE PROCESS RIGHTS of parties in a criminal
prosecution (as was the case here).
NIXON V. ADMINISTRATOR OF GENERAL SERVICES (1977, p. 212)
- FACTS: Presidential Recordings and Materials Preservation Act was passed after Nixons
resignation and pardon by President Ford, that required the Administrator to take possession and
control of Nixons presidential materials, to screen them and return those that were private and not
of general historical interest, and to promulgate regulations to protect the remaining materials from
loss and govern access to them.
- HOLDING: Rejected a claim of executive privilege in upholding the facial validity of the
Presidential Recordings and Materials Preservation Act.
NIXON v. FITZGERALD (1982, p. 213)
- FACTS: After departure from office, Nixon was sued by Fitzgerald who claimed Nixon, claiming that
Nixon and White House aides caused him to be fired from his job in violation of his statutory and
constitutional rights.
- HOLDING: The President can get immunity from a civil suit when he is engaging in his
PROFESSIONAL/OFFICIAL ACTIVITIES. This is so that the president can carry out his official duties
without worrying that he might be sued for things he does.
Two types of immunity:
- Absolute immunity
o Protecting an official even for egregious or intentional constitutional violations. This is the
exception to the rule
- Qualified or Good Faith immunity
o Liability only for violations of clearly established rights that a reasonable person would know.
(the norm)
Mississippi v. Johnson (p. 215)
- HOLDING: Cannot enjoin the President from enforcing a law. An act that it classified as purely
executive and political
CLINTON V. JONES (1997, p. 215)
- FACTS: A state worker from Arkansas sued Clinton for sexual harassment when he was Governor
of Arkansas.
- HOLDING: President has absolute immunity from civil suits during his term that cannot be
overcome under ANY circumstances. BUT rejected Clintons efforts to have the suit dismissed w/out
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prejudice and statute tolled until expiration of his term. Clinton said this case would be
unacceptable burden on his time as President will not take a lot of time.
CHENEY V. US DISTRICT COURT (2004, p. 217)
- FACTS: Involved a discovery order against VP Cheney seeking information about members and
activities of a task force established to develop a national energy policy for the President. Does the
immunity extend to the VP?
- HOLDING: Court remanded to DC circuit b/c they had labored under the mistaken assumption that
the assertion of executive privilege is a necessary precondition to the Governments separation of
powers objections.
EXECUTIVE PRIVILEGE
- Military of Diplomatic info
- Informers privilege
- Deliberation privilege (work product?)
o US v. Nixon
State Farm Mut. Auto. Insurance Co. v. Campbell (p. 323, 2003)
- HOLDING: Struck down punitive damages award in case involving a $145 million punitive
damages award where full compensatory damages were only $1 million. In practice, a few awards
exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree,
will satisfy due process.
GOVERNMENTAL TAKINGS & EMINENT DOMAIN
Pennsylvania Coal v. Mahon (1922, p. 324)
- HOLDING: While property may be regulated to a certain extent, if regulation goes too far it
will be recognized as a taking.
Eastern Enterprises v. Apfel (1998)
- HOLDING: Struck down federal statute imposing monetary assessment of the prior owner of a coal
mine that would have been used to fund benefits for retired miners who had once worked for the
coal mine. Said statute violated Takings Clause.
Berman v. Parker (1954, p. 324)
- FACTS: Federal statute authorized an agency to acquire private property for the redevelopment of
blighted areas. After the condemnation, the agency could lease or sell portions of the land to
private developers who agreed to carry out the redevelopment plan. Department store was located
in a badly blighted area. Appellants say that their building does not imperil health or safety nor
contribute to the making of a slum or a blighted area.
- HOLDING: It is within the power of the legislature to determine that the community should be
beautiful and healthy.
Hawaii Housing Authority v. Midkiff (1984, p. 325)
- FACTS: Hawaiis fee simple property interests. Where the exercise of the eminent domain power is
rationally related to conceivable public purpose, the Court has never held a compensated taking to
be proscribed by the Public Use Clause.
- HOLDING: Upheld use of eminent domain to lessen concentration of fee simple land ownership,
inherited from Hawaiis feudal land tenure system. Concentration of land ownership in few hands
was responsible for skewing states residential fee simple market, inflating land prices, and injuring
public tranquility and welfare. This taking was NOT for public use.
Kelo v. New London (2005, p. 326)
- FACTS: Government took houses that were not in really bad shape, but they look the land to sell it
to Pfizer. They were going to build a Boardwalk like shopping area with shops and restaurants, etc.
Economic revitalization of the Fort Trumbell area of New London, CT. City counsel approved the
NLDC plan and authorized the entity to purchase property or to acquire it by exercising eminent
domain in the Citys name. Must look at this case in light of the entire plan for redevelopment.
Eminent domain. MUST be just compensation. If a public benefit exists, then it is OK.
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HOLDING: If you are going to say that the government can never re-sell land that it takes, that is
a serious constraint on the governments power. The majority said that this is a much broader
power that than. We need to defer to the government as to what they think qualifies as public use.

Eminent Domain v. Compensation

- There must be just compensation and you do not have a choice but to give up your land. Eminent
domain is COERCIVE. YOU CANNOT SAY NO WITH EMINENT DOMAIN! Eminent Domain is a
government power rather than a power of the private individual you typically dont think of
private companies of having the power to coerce you to do things
- Eminent domain is a very powerful thing the right to accept compensation the
government is using the STATE power to take your land. What is the source of the
Eminent Domain power? ENGLAND! Probably commerce clause. Maybe spending
power. Maybe national sovereignty, etc.
US Const., Amend. V - No person shall be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use without just compensation
Calder v. Bull (1798)
- FACTS: A court case about the contents of a will. Ex post facto. Natural law.
- HOLDING: Supreme Court examined its authority to review state legislature decisions. Held that
legislatures actions did not violate the ex post facto law in Art. I, 10. Ex post facto clause
applies to criminal, NOT civil cases. An ACT of legislature (for I cannot call it law), contrary to
the great first principles of the social compact, cannot be considered a rightful exercise of
legislative authority (Chase, J.) [rights are inherent and it is our job to enforce them]. A Court
cannot pronounce [an act of the legislature] void merely because it is, in their judgment, contrary to
the principles of natural justice (Iredell, J.) [NOT our job to enforce natural rights]. Iredell was
skeptical about the existence of natural rights and the ability of the judiciary to assess accurately
the content of those rights.
Dred Scott v. Sandford (19 How. 393) (1857)
- FACTS: Held that people of African descent imported into US and held as slaves or their
descendants, whether or not they were slaves, could NEVER be citizens of the US and that US
Congress had no authority to prohibit slavery in federal territories. Held that slaves could not sue in
court. OVERRULED IN SLAUGHTER-HOUSE CASES.
- HOLDING: States do not have right to claim an individuals property that was fairly theirs in
another state. Property cannot cease to exist as a result of changing jurisdiction. Africans residing
in America, whether free or slave, could not become United States citizens and plaintiff lacked
capacity to file a lawsuit.
Barron v. Mayor and City Council of Baltimore (32 US (7 Pet.) 243) (1833)
- FACTS: Established whether US Bill of Rights could be applied to state governments. Barron
owned a profitable wharf in Baltimore. He sued the mayor for damages, claiming that when the city
had diverted the flow of streams while engaging in street construction, it created mounds of sand
and earth near his wharf making the water too shallow for most vessels.
- HOLDING: State governments are not bound by the 5th amendments requirement for just
compensation in cases of eminent domain. Freedoms granted by the Bill of Rights does NOT
restrict the state governments.
Slaughter-House Cases, 16 Wall. (83 US) 36 (1873)
This is when you are outside of your own state and your protection
- FACTS: In 1869, Louisiana legislature passed law allowing New Orleans to create a corporation
centralizing all slaughterhouse operations to restrict dumping of remains and waste in waterways
and provide a single place for animals to be kept and slaughtered. They fixed prices for offloading
and maintenance of livestock, for butchers who wanted to use facilities, described process of
collecting unpaid money, and set provisions for livestock inspector to ascertain animal health and
fitness. ABRIDGES THE RIGHT TO OWN AND OPERATE PROPERTY MONOPOLY to slaughterhouses
in LA.
- RULE: Privilege and immunities inferred in this clause in the 14 th amendment are only privileges
that citizens of US have, and not citizens of a state. If you go to another state, you are protected
from that state but not your own.
23

HOLDING: Held that LA law did NOT restrict police powers of the state. Held 14th amendments
privileges and immunities clause affected ONLY rights of US citizenship and NOT state
citizenship. Therefore, the butchers 14th amendment rights have not been violated. The
amendment was primarily intended to protect former slaves.
FIELDS DISSENT: Embraced the common law presumption in favor of an individual right to
pursue a legitimate occupation.

Allgeyer v. Louisiana (165 US 578) (1897)

- FACTS: Case arose in Louisiana, which like other states prohibited businesses from operating within its
jurisdiction unless they met certain conditions. Louisiana made it illegal for Louisianans to enter into
certain insurance contracts by mail with companies operating outside the state. Allgeyer was
prosecuted for entering into an insurance contract with a NY company.
- RULE: Establishes liberty of contract. Right to make lawful contracts was liberty protected by Due
Process Clause.
- HOLDING: Held state law unconstitutional for first time for depriving a person of right to make
contracts. RIGHT TO MAKE LAWFUL CONTRACTS IS A LIBERTY PROTECTED BY DUE PROCESS.
Lochner v. New York (1905)
- FACTS: Involved a NY law limiting number of hours that a baker could work each week. In 1896, NY
Legislature unanimously enacted Bakeshop Act, a law prohibiting individuals from working in bakeries
for more than 10 hours a day or 60 hours per week.
- RULE: 14th Amendment. Nor shall any state deprive any person of life, liberty, or property, without
due process of law.
- HOLDING: It is unreasonable to interfere with this type of contractual activity. UNREASONABLE to
limit someones workweek to 60 hours. Right to free contract was implicit in due process clause. Idea
that working long hours posed a threat to the health of bakers was not legitimate. Right to contract is
a right within liberty interest when state has failed to demonstrate a reasonable reason why it should
not exist.
- HARLANS DISSENT: Liberty to contract under 14th amendment is subject to regulation acting w/in
scope of its police powers.
Muller v. Oregon (1908)
- FACTS: Muller was owner of a laundry who was convicted of violating Oregon labor laws. He made a
female employee work more than 10 hours in a single day and was fined $10. 14 th amendment due
process clause.
- HOLDING: Upheld Oregon state restrictions on working hours of women to protect womens health.
Did not overrule Lochner, but distinguished it on basis of difference b/w sexes. Child-bearing
physiology and social role of women provided a strong state interest in reducing their working hours.
Adair v. United States (1908)
- FACTS: Adair was official w/ Louisville & Nashville RR, had fired Coppage for belonging to labor union.
Adairs actions violated Erdman Act of 1898, which prohibited railroads that engaged in interstate
commerce from requiring that their employees refrain from membership in a labor union as a condition
of employment. Due process clause of 5th Amendment.
- HOLDING: Upheld yellow-dog contracts that forbade workers from joining trade unions. Held that
Erdman Act was UNCONSTITUTIONAL b/c it unjustly violated due process clause of the 5th
amendment which guaranteed freedom of contract and property rights.
Coppage v. Kansas 236 US 1 (1915)
- FACTS: Coppage, an employer, forbade his employees from joining labor unions by making it part of
their contract, which they signed before being hired. This violated Kansas law prohibiting these kinds
of anti-union contracts.
- RULE: Liberty of contract was a fundamental right and only in extreme circumstances could this right
be abridged. When the fundamental right of freedom of contract was abridged, it violated the due
process clause of the 14th amendment.
- HOLDING: Held that employers could make contracts that forbid employees from joining unions
(these contracts were yellow-dog contracts). Prohibiting these contracts violated Coppages
due process. Court CANT ensure equal bargaining power.
Adkins v. Childrens Hospital (261 US 525) (1923)
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FACTS: Minimum wage legislation for women.

HOLDING: Held that federal minimum wage legislation for women was an unconstitutional
infringement of liberty of contract, as protected by the 5th amendment. Minimum wage law for women
violated the due process right to contract freely.
DISSENT: No distinction b/w minimum wage laws and maximum hour laws these are both
restrictions on contract.
SUBSEQUENT HISTORY: Was overturned by West Coast Hotel Co. v. Parrish in 1937.

ENUMERATED V. UNENUMERATED RIGHTS

What are rights?
- Rights are optional. Gives the individual the ability to make some decisions
What are duties?
- A responsibility
What are privileges?
Positive Law:
- Comes from idea that government got together and decided to give individuals these rights
Natural Law:
- Rights are inherent and are taken from moral or religious values. Rights from God. Founders
believed in natural law.
Powers
- Must be given, enumerated and spelled-out in the text. Constitution is drafted with POWERS.
SOURCES OF ENUMERATED RIGHTS
- Article I, 10
- Amendments I-X (Bill of Rights) restraint ONLY federal government.
- Amendments XIII-XV
o Most important with respect to individual rights
- Amendment XIV In what way does it differ from Article I, 10 and Amendments I-X
o XIV is by far the most important amendment in the constitution with respect to protecting
individual rights
- Amendments XIV and XV were first constitutional amendments that restrained the states
- XIII abolished slavery
- XV is about voting
- XIV is the broadest amendment it gives general guarantees to CIVIL RIGHTS
Amendment XIV A VEHICLE THROUGH WHICH A LOT OF RIGHTS WILL BE DEVELOPED
THROUGH
West
-

Coast Hotel Co. v. Parrish (1937, p. 315)

FACTS:
RULE: Liberty under the Constitution is subjected to the restraints of due process and regulation.
HOLDING: Overruled Adkins v. Childrens Hospital and sustained a state minimum wage law for
women. The legislature was entitled to adopt measures to reduce the evils of the sweating system,
the exploiting of works at wages so low as to be insufficient to meet the bare cost of living, thus
making their very helplessness the occasion of a most injurious competition.

US v. Carolene Products Co. (1938, p. 316)

- FACTS: Federal statute prohibited the shipment in interstate commerce of filled milk. Carolene
was concerned about the impurity of the appellees product and the need to exclude it from
interstate commerce.
- RULE: Courts should apply strict scrutiny to laws directed at specifically disadvantaged groups.
- HOLDING: Footnote 4. Upheld the constitutionality of a federal statute that prohibited the
shipment in interstate commerce of filled milk, a product compounded with fat or oil so as to
resemble milk or cream. Where the court before had used the substantive due process clause to
protect property rights, not it should use the equal protection clause.
Rights Against the States - Prior to 14th amendment, you could ONLY challenge the federal government,
not the state governments
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Substantive Due Process

- Nor shall any state deprive any person of life, liberty or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws (14 th amend., 1)
Nebbia v. New York (The Fall of Lochner) (p. 313)
- FACTS: 1933, NY enacted law establishing a Milk Control Board with power to fix maximum and
minimum retail prices. Nebbia, proprietor of a grocery store, was convicted of selling milk below
the minimum price set.
- RULE: Neither property rights nor contract rights are absolute. Due process demands ONLY that
law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a
real and substantial relation in the object sought to be attained.
- HOLDING: if the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.
Reasonable to regulate NY law OK.
- DISSENT: Must inquire ends and means of legislative power.
Amend. XIV, s. 1 Nor shall any state deprive any person of life, liberty, or property, without
due process of law
- Even though there is a privileges and immunities clause, the crucial clause is s. 1, for judicial review
of state laws that deprive individuals of fundamental rights
- In Lochner, the Court invalidated a rule which would have limited the number of hours that bakers
in NY could work. The Court said that this is a violation of the due process clause b/c there was a
right to make a contract that was being violated. The employment contract was being limited.
Thought was that there was NO REASONABLE basis for the government to limit the workweek to 60
hours. There is no health basis here. Is there a reason for the government to do this? The Court
said that the health reason was not enough. It is arbitrary and unreasonable to interfere with
contracts for bakers. There was a similar statute that limited the working hours of women in
another state. How do we justify that? The argument there was that women are weaker and they
need protection. HELD no good reason to restrict the right to contract.
- Lochner became the symbol for the approach to the 14th amend and due process clause for
wherever the state would pass a law restricting the right to contract, work, etc. the court would
immediately start questioning it.
- Nebbia A state is free to adopt whatever economic policy may reasonably be deemed to
promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts
are without authority to either declare such policy, or when it is declared y the legislature, to
override it.
o Whatever economic policy you want you can have as long as it can be reasonably deemed
to promote public welfare. This is a broader standard that must improve peoples
health. Any policy that can be deemed to improve public welfare is OK even if we dont
think it is okay.
o The Nebbia approach pulls the court out of reviewing economic affects of state laws. If we
reasonably think that someone could think this promotes public welfare, the court will NOT
review it. It does not lead the court to question the state laws b/c they will uphold anything
that at least one person thought was OK.
o There was a concern where there was no substantive due process anymore. We trust our
government.
o 1930s era Great Depression, and New Deal Court that restricted rights to promote
economics of government
US v. Carolene Products, Footnote 4
- FACTS: Upholding milk regulation per Nebbia. But see Footnote 4: prejudice against discrete
and insular minorities may be a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect minorities, which may call for a
correspondingly more searching judicial inquiry.
- HOLDING: Concern is that discrete and insular minorities tend to have less representation and are
not represented effectively in the political process so we should be more suspicious of the political
process. Rationale is that they are not able to participate fully in the political process.

The reason the Constitution gave Congress power to declare war.

26

Congress never declared war in Iraq. War Powers Resolution Act, etc.
dormant commerce clause 1. ones that have discriminatory effect; 2. discriminatory on its face
first question: dormant commerce clause, dakota parallel, washington apple.
War Powers Resolution Act - Congress tried to take war powers away from teh President.

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