FINAL ATTACK

TAX/SPENDING
1.8.1
General Welfare : broad
SD v Dole
o 4 factors of Spending
1. General welfare of something Cong has great deference over
2. Part of a national program or interest
3. Unambiguously imposed in clear language
4. Not coercive to states or making them part in unconst activity
5% in this case
20% of total funds in Medicaid expansion in Sebaccounting for 50-83% of Fed funds
Sebelius Individual Mandate
Was a tax : Paying into Fed Funds and Not punitive
N&P

Nec= Conveneient, useufl, conducive to beneficial exercise of authority

(Comstock)
Proper+N= Let the ends be legtimiate, let it be within the scope if constitution in
means plainly adopted to that end Proper letter and spirit of the Const
Enforce an enumerated power (McCulloch)
Enforce a power of a federal officer or governmental powers
Enforce something within the scheme of N&P (Comstock)
o N&P exception of CC - if part of larger economic regulatory scheme
(Gonzales) - can further regulate under CC
Sebelius: Not proper - unconstitutional= compelling people to
enter the market was not regulating the economic activity
Comstock Considerations
Breadth
Arena
Sound Discretion
States interests
Narrow scope

COMMERCE CLAUSE
Lopez : Gun Free School Zone- too far since
o 1. Channels of ISC
o 2. Instrumentalities or People and Things in ISC
o 3. Intrastate activities with a substantial relation/effect on Commerce
Here: no substantial rel since non-econ activity - cannot say subst
relation
Gonzales: CSA - Growth of local marijuana- could be regulated as
substantial effect/cumulative effects (Wickard) - would impact the
larger economic regulation and market

Wickard: Cum effects: Even if thing itself is trivial, so long as

would impact the larger market
Sebelius: Could not COMPEL Congress- not part of larger econ
scheme since was creating the market - must regulate activity not
inactivity
Heart of ATL: People in transient movement - related to economy
Darby: Bootstrap approach - even non-harmful goods can be
regulated- so long as some effect on commerce- can be regulated
Jones and Laughlin- could regulate worker wages under NLRA

ENFORCEMENT POWER
Congress can enforce Due Process rights - 14.5
Cannot Create NEW rights
o City of Boerne : CONGRUENCE AND PROPORTIONALITY TEST remedy and harm
o Can enforce things like ADA
JUSTICIABILITY
When Fed Cts can hear a case under Cases and Controversies
Came about from Lujan
1. Standing - who
o Injury in Fact (cannot be generalized grievance)
o Causation - you have actually been harmed directly by govt entity
o Redressability - decision on the case would redress your injuries
States Standing : Diff level of scrutiny - Mass v. EPA
Taxpayer standing : Generally no (Frothingham) but
Flast Exception : Congress has acted within T&S powerand had exceeded this power in some way
2. Ripeness - when - timing - that a case is ripe to be heard when there is
a direct adverse effect on the person
Moot= past the point of ripeness - decision would not longer have
bearing
Exception: Too short in duration to make it through
litigation, and likely to arise again by same party in similar
situation (ex: Roe v. Wade)
3. Political Q- what cannot be heard - something traditionally vested to
another branch and beyond discretion of the court
Six Strands (Baker v. Carr)
1. Textual Commitment to another branch
2. No judicial policy
3. Policy beyond jud discretion
4. Disrespect to another branch if jud decides it
5. Political Ties= would have to defer to political decision
6. One Voice- would be embarrassing if Govt did not speak
together
Advisory Opinions: Cannot be given by Fed Cts outside of formal
C&C

COMMANDEERING
10th Amendment - state sov and no commandeering
Printz: Brady Handgun- cannot force states to carry out fed program - do bidding
o reporting is ok - not considered commandeering
NY v. US: Take title provision- violation of 10th amendment
Garcia v. SAMTA- Congress can make states do something if within
power- CC - states are not immune from it
Term Limits case: Only limited to after passage of 10th amendment
SOV IMMUNITY
11th Amendment - cannot sue a state in fed or state ct - by a private individual of any
state (Alden v. Maine)
Seminole tribes- cannot abrogate state sov immunity under CC
Can only abrogate under
o Enforcement power (14.5)
o Bankruptcy proceedings (Katz)
o Ex Parte Young exception; can sue state official resp for injunctive relief
o States can consent to suit

APPOINTEMENTS
2.2.2
President can appoint Principal officers
Inferior off can either be vested by COngress to
o Pres
o Judicial
o Heads of Depts
Rehnquist Def= 1. duties, 2. removal, 3. jurisdiction , 4. tenure
Edmond Test = whether or not directed and supervised by principal officer
(presidential appointee)
Morrison: Interbranch appt- Jud had power to appoint Ind Counsel to
investigate federal crimes - was OK - was an inferior officer- not
encroachment of power- functionalist approach NOT
o 1. Aggrandizement of power
o Ursupration of power
o Undermining a branch
Mistretta: Dual role of Fed judges being appt to Fed Sentencing
commision- could wear two hats - not violation of appts clause
Bowsher -Formalist removal case- Congress could not have power to
remove Comptroller General - overstepping powers
LEGISLATIVE VETO
Presentment Clause = 1.7.2
Congress placing veto power to strike down pres action
Chadha: Leg veto on deporation - was impeding upon rights of an individualNOT ok because (formalist) violation of

o
o

Bicameralism - the way legistlation must be passed through 2 houses

Seperation of Powers - overstepping pres power

DORMANT CC
Is it within Congress CC- and has not been regulted?
Is it discriminatory in its face, purpose, or effects on ISC or out of state
individuals?
o If NO- Pike Balancing Test
o If YES, state must prove
Legit state interest (health, welfare, safety)
NO economic protection (Philadelphia v. NJ)
Least restricitive alternative
NOT least restric (Washington apples)
Is the discrimination even-handed with incidental effect on ISC?
Must balance
Legit state interests and
Burden on ISC
Exxon Mobile: Was ok - since legit interest of petrol
shortage and no less restrive - burden lower
EXCEPTIONS
Market Participant (Reeves, tuition, hosptials)
Congess Consent- gives them permission
PRIV AND IMM
Art IV, secion 2
Priv and Imm: right to livlihood - fundamental rights
Differences
o Only for individuals (not corps or entities)
o No Pike balancing test (since only if discrim- not apply to even-handed)
o No excpetions (Market part or Consent0
Test:
o Is it a substantial state interest that is closely related to the regulation?
Freidman: Bar exam limits- NO- not subs interest
PRES ACTIONS
Youngstown : Steel seizure by president not ok - formalist - based it on his
o Commander in Cheif (war)
o Vested Power
o Take Care (would have had to be law by Congress- not creating a law)
JACKSON CONCURRENCE
o When Congress has given permission
Strongest power
When Congress is silent
Twilight Zone- has to be acting within vested powers
When Congress has prohibited
Inherent pres powers must be greater than Congress proh

Frankfuter Concurrence: Ongoing Hist - gloss on constitution - adverse

possession of powers by Pres

Priv: Nixon : Had to hand over private tapes for investigation into obstruction of
justice charge
o Functionalist - any implied privileges were outweighed by Judicial need to
carry on function