CONSTITUTIONAL LAW OUTLINE

I. JUDICIAL FUNCTION IN CONSTITUTIONAL CASES

Article III

Whenever a question involves action by an entity of the federal government, the action will be valid only if it is
authorized by the Constitution; federal courts shall have judicial powers over all cases and controversies:

-arising under the Constitution, laws, or treaties of the United States

-of admiralty and maritime jurisdiction

-in which the US is a party

-between two or more states

-between a state and citizens of another state

-between citizens of different states

-between citizens of the same state claiming lands under grants of different states

-between a state or citizens thereof and foreign states, citizens or subjects

A. The Nature and Sources of the Supreme Court’s Authority

1. Judicial Review: The Bases and Implications of Marbury v. Madison

The Constitution does not explicitly state that the S/C may determine the constitutionality of acts
of other branches of government, however, Marbury v. Madison established judicial review of
other branches of federal government. The CON is "law" and it is the province and duty to the
judiciary to declare what the law is-judiciary is final interpreters of the CON.

Marbury v. Madison (commission/writ of mandamus)

HELD: The S/C has the power, implied from Article VI, §2 of the Constitution, to review acts of
Congress and if they are found repugnant to the Constitution, to declare them void. Judicial
review is a necessary inference from written constitution. The final decisional authority for
questions of CON interpretation is the federal judiciary. The Court will extend Marbury v. Madison
to cases where state law can be determined to be unconstitutional or inconsistent with federal
statutes. The S/C can declare a law of Congress unconstitutional

NOTES: Court felt Marbury was due commission, but held that delivery of commission was a
ministerial act, not discretionary. Statute is repugnant to the CON. S/C allows for concurrent
jurisdiction to reduce workload as they are not set up as trial court. Case set up precedent that
you look at the CON as a rule of law to be tested and binding on courts. Marshall lined up Art. 3
and Statute through maneuvering to rule they are irreconcilable. Executive branch could not
challenge due to the maneuver of respectfully declining power that was given to the court.

Marshall’s arguments for Judicial Review:

1. Oath Argument
 2. Judicial power extends to all cases in Law & Equity arising under CON , Art. 3

3. Art. 6 Supremecy Clause, judges shall be bound and Fed. law trumps State. State
judge must perform judicial review. (strongest arg.)

CON infraction can arise under 4th Am., but not involve CON article itself. S/C will take State Ct. rulings at
face value for what State law is. State Ct. can not review Fed law. Courts have claimed judicial review
loudly and longly enough that it is widely established.

1. Functions of Judicial Review in Society

A. Checks and Balances Function – Legislature & Exec. are more respondent to majority view
(vote).

B. Allows CON to Evolve – Allows correcting function over time limiting damage to the CON. Bill
of Rights, (1st 10 Am.) were implemented with the CON, only approx. 15 Am. in 200 years.

C. Clarification of Laws Enacted & CON – Ultimate arbiter of interpretations.

D. Keeps Fed. System from Splintering – As ultimate authority can give a single and consistant
meaning to State & Fed. laws.

E. Declares Controvoursies Constitutional – Allows for upholding of policies.

2. Advantages of Placing Judicial Review in Courts

A. Judges have much more independence then Legislature and other bodies of Gov. as Fed.
judges are appointed for life and salaries can not be reduced.

B. Process & Opinions lead to scholarly review and written explination when coming from courts.
Educational role also in making public aware and allowing public scrutiny.

C. Contunuity with the court and Stare Decisis (doctrine of precedent).

D. Conflict of interest if power was in Legislative/Exec. (can only rule on what comes before it
though)

E. Courts act with 20/20 hindsight vs Legislative foresight so can rule based on actual impact of a
legislations constitutionality.

3. Disadvantages of Lodging Judicial Review in Courts

A. Anti-authoratarian view, slow to move.

B. Delay in rulings due to time for cases to make their way to court, if ever.

C. Hard to rectify erroneous decisions.

D. If not declared “unconstitutional on its face” ruling will not necessarily be followed uniformly.

E. If a statute is declared constitutional, coming back for later rulings not necessarily prevented.

Originalists – Believe that you view CON only in the light as originally envisigned by framers.

a. Jurisdiction of the Supreme Court

 1. Original (trial) Jurisdiction - Article III of the Constitution provides that the S/C
shall have original jurisdiction in all cases affecting ambassadors, other public ministers
and consuls, and where a state is a party. In all other cases, the S/C shall have appellate
jurisdiction. Congress may neither restrict nor enlarge S/C original jurisdiction, but
Congress may give concurrent jurisdiction to lower federal courts.
2. Appellate Jurisdiction – Article III, Section 2 further provides that in all other
cases before mentioned, the S/C shall have appellate jurisdiction, both as to Law and
Fact, w/ such exceptions, and under such regulations, as Congress shall make

a. Statutory Application of Appellate Jurisdiction – Congress has provided

2 methods of invoking S/C appellate jurisdiction:

-writ of certiorari (discretionary) –cases from highest state courts where the
constitutionality of a federal statute, treaty, or state statute is called into question; or a
state statute allegedly violates federal law and all cases from federal courts of
appeals-appeal (mandatory)

Federal Review of State Acts – established by the Marshall Court. The CON, Laws, and Treaties of the US
take precedence over state laws and that the judges of the state courts must follow federal law, anything in the
CON or laws of any state to the contrary notwithstanding – Supremacy Clause.

The conflict in regulations need not relate to conduct; it is sufficient if the states or local law interfere with
achievement of a federal objective- Judiciary Act of 1789 S/C review of state court decisions limited to federal
questions decided by state courts.

A. National Powers and Local Activities: Origins and Recurrent Themes

1. Federalism – Antiquarian Relic? Contemporary Value?

Enumerated and Implied Powers

1. Necessary and Proper – Grants Congress the power to make all laws necessary and proper for
carrying into execution any power granted to any branch of the federal government. The
Necessary and Proper Clause is not itself a basis of power; it merely gives Congress power to
execute specifically granted powers.

-Limitation: Congress cannot adopt a law that is expressly prohibited by another provision of the
Constitution

2. Taxing Power – Congress has the power to lay and collect taxes, but they must be uniform
throughout the US.
3. Spending Power – Congress may spend to provide for the common defense and general
welfare. The spending may be for any public purpose – not merely the accomplishment of other
enumerated powers. Congress can use its spending power to "regulate" areas, even where it
otherwise has no power to regulate the area, by requiring entities that accept government money
to act in a certain manner (i.e. attaching strings to government grants).
4. Commerce Power – Article I, Section 8, Clause 3 empowers Congress to regulate commerce
with foreign nations and among the several states, and with Indian tribes.

Commerce is every species of commercial intercourse which concerns more states that one and
included with the concept virtually every form of activity involving or affecting two or more states
 a. Transportation and Traffic – the Court has consistently regarded transportation or
traffic as commerce, whether or not a commercial activity is involved.
b. "Substantial Economic Effect"- The S/C has sustained congressional power to
regulate any activity, local or interstate, that either in itself or in combination with other
activities, has a substantial economic effect upon or effect on movement in interstate
commerce. (Wickard, Lopez)

1. War and Related Powers – Congress has the power to declare war, raise and support armies,
provide for and maintain a navy, make rules for the government and regulation of the armed
forces, and organize, arm, discipline, and call up the militia. Of course, several other
congressional powers may have direct or indirect application to military purposes.

a. During war – regulatory power of Congress, especially in economic

matters and mobilization of troops, in support of war effort is pervasive (as
limited by Bill of Rights)
b. Postwar – the regulatory power may be extended into post-war periods
both to remedy wartime disruptions and cope with cold war exigencies.

1. Investigatory Power – The power to investigate to secure information as a basis for potential
legislation or other official action; a very broad power .
2. Property Power – Congress has the power to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the US.

McCulloch v. Maryland (Bank)

HELD: Certain federal powers giving Congress the discretion and power to choose and enact the
means to perform the duties imposed upon it are to be implied from the Necessary and Proper
clause. Congress has the power to charter banks since that power is appropriate to exercising
Congress’ enumerated powers.

-As long as the end is legitimate and within the scope of the Constitution, any means which are
appropriate, are plainly adapted to that end, and which are not prohibited by the Constitution, but
are consistent with its spirit, are constitutional.

The federal Constitution and the laws made pursuant to it are supreme and control the
Constitutions and the laws of the states, and cannot be controlled by them. The states have no
power, by taxation or otherwise, to impede, burden, or in any manner or control the operations of
constitutional laws enacted by Congress.

-if a state is allowed to tax a national bank, it is effecting all the people of the US, people who did
not participate in that states elections  taxation without representation.

The success of federalism depends upon maintaining the balance between the need for the
supremacy and sovereignty of the federal government and the interest in maintaining
independent state government and curtailing national intrusion into intrastate affairs. The US
federal structure allocates powers between the nation and the states by enumerating the power
delegated to the national government and acknowledging the retention by the states of the
remainder.

If Congress says its Necessary and Proper, Court will defer to Congress as long as there is a minimum
rationale basis because there are no judicially manageable standards.

A. The Commerce Power

1. Regulation of Commerce by Congress – this power is nonexclusive – it is shared with the

states to some degree – concurrent federal and state power
 a. Power of Congress to supersede or preempt State Regulation – Supremacy
Clause – if a state law regulating commerce conflicts with a federal law, the state law
will be void. If Congress desires, it may preempt an entire are of regulation, thus
preventing states from making any laws concerning the area preempted.
b. Power of Congress to permit or prohibit State Regulation – Congress may
allow the state to adopt legislation that would otherwise violate the CC.

-limitation: while Congress may permit this, such consent will not obviate other
constitutional objections to the regulation.

c. State regulation of Commerce in the absence of Congressional Action – If

Congress has not enacted laws regarding the subject, a state or local government
may regulate local aspects of interstate commerce if the regulation:

1. does not discriminate against out-of-state competition to benefit local economic

interests

-state or local regulations that discriminate against interstate commerce to protect

local economic interests are almost always invalid

-regulations requiring local operations – if a state law requires a business to perform

specific business operations in the state to engage in other business activity within
the state, the law will normally be held invalid as an attempt to discriminate against
other states where the business operations could be performed more efficiently.

2. is not unduly burdensome.

United States v. Lopez

HELD: The 1990 federal Gun-free School Zones Act exceeded Congress’s Commerce Clause
regulatory powers. The federal government is one of limited, enumerated powers. The Court held
that possession of a firearm in a school zone is not an economic activity that might have a
substantial effect on interstate commerce, and the law contained no jurisdictional element that
ensured an effect on movement in interstate commerce.

-For Congress to legislate, it must do so under an express constitutional provision. If the concept
of limited federal government is to have any meaning, Congress’s legislative power must be cut
off somewhere. That somewhere is the point at which a regulated activity does not substantially
affect interstate commerce.

-The statute is found unconstitutional because it does not fall w/in the CC in Article I section 8 – it
does not regulate any commercial activity. Commerce means business and this statute does not
prohibit and economic activity

-When argued that guns may be used for illegal economic activity, Rhenquist argues that if say
just because sometimes something is used for economic transaction it is under the power of
Congress, then Congress would have unlimited power.

-Rhenquist assumes that enumerated powers means judicially definable powers written in judicial
language. He feels that the CC has to be judicially enumerable which is a strict definition.
Whatever definition give it, has to separate cases and the governments definition does not
separate cases.

1. The development of Commerce Power doctrine from 1824 – 1936

Gibbons v. Ogden

HELD: If a state law conflicts with a congressional act regulating commerce, the congressional
act is controlling – supremacy clause

-Congress has the power to regulate navigation within the limits of every state and, therefore, the
regulations which Congress passed controlling navigation within the state boundaries were valid.

-"All America Knows" – the CON was written so everyone can understand

Marshall defines navigation as the power to regulate – to prescribe the rule by which commerce is
to be governed; defined commerce as every species of commercial intercourse which concerns
more states than one and included within the concept virtually every form of activity involving or
affecting two or more states.

Cherokee Nation v. Georgia

HELD: The Cherokee Nation is not a foreign state as defined under the CON and therefore the
S/C does not have original jurisdiction.

Cherokee Nation turns out not to be the protection of the states rights, but an assertion of the
standpoint of the US – the US CON is written on the perspective of the US and is the starting
point of everything else. From the perspective of Georgia, t hey are foreign. To the US they are
not – the words of the CON make makes the US perspective right.

United States v. E.C. Knight Co

HELD: The CON only allows Congress to regulate commerce and not manufacturing

Doubtless the power to control the manufacture of a given thing involves a certain sense the
control of its disposition, but this is secondary and not the primary sense; and although the
exercise of that power may result in bringing the operation of commerce into play, it does not
control it, and affects it only incidentally in indirectly.

-direct and indirect distinction: manufacturing is indirect while selling/buying might have been
direct – nothing to do with each other

Houston E & W Texas RY v. US - The Shreveport Rate Case

Congressional authority extending to interstate carriers as instruments of interstate commerce,

necessarily embraces the right to control their operations in all matters having such a close and
substantial relation to interstate traffic that the control is essential or appropriate to the security
of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions
under which interstate commerce may be conducted upon fair terms and without molestation or
hindrance.

-The "stream of commerce" theory: the consequences for transportation intrastate are so obvious
for interstate that can regulate. If local trade effects national trade, then can regulate

-Supremacy Clause – whenever the interstate and intrastate transactions of carriers are so
regulated that the government of the one involves the control of the other, it is Congress, and not
the State, that is entitled to prescribe the dominant rule.

Stafford v. Wallace

HELD: Stockyard business leads to shipment for interstate commerce – in the middle of the
current of commerce
 Champion v. Ames (The lottery case)

HELD: Under the CC, Congress may prohibit interstate sale of lottery tickets to protect commerce
and people’s morals, in the same manner that a State can within its boundaries. Lottery tickets
are subject of traffic and therefore are subjects of commerce and that the prohibition of commerce
lay within the regulatory power of Congress.

-Majority said it is enough that the activities address interstate commerce – fact that the purpose
of legislation is not economic does not matter

-Impure Foods

Hipolite Egg Co. v. US

Articles which are outlaws of commerce can be seized wherever they are found. The power to do
so is certainly appropriate to the right to bar them from intestate commerce and completes its
purpose, which is not to prevent merely the physical movement of adulterated articles, but the
use of them, or rather to prevent trade in them between the States by denying to them the
facilities of interstate commerce.

b. The Mann Act

Hoke v. US

The facility of interstate transportation can be taken away from the systematic enticement to and
the enslavement in prostitution ad debauchery of women.

Hammer v. Dagenhart (The child labor case)

Overt interstate transportation, or its incidents, the regulatory power of Congress is ample, but the
production of articles, intended for interstate commerce, is a matter for local regulation.

HELD: Congress has no power to make States prevent unfair competition – State laws must
prevent the local evil. Cannot have something that would give Congress authority and power as
to a purely local matter as to which federal authority does not exist. The manufacture/commerce
differentiation Congress could, by simple device by saying that the goods are manufactured
under certain circumstances, Congress would have no limits

-the Act is repugnant to the CON – it transcends the authority delegated to Congress over
commerce and also exerts a power at to a purely local matter to which the federal authority does
not extend.

RR Retirement Board v. Alton RR Co.

The law establishing compulsory retirement was not in purpose of effect a regulation of interstate
commerce within the meaning of the CON.

Carter v. Carter Coal Co.

HELD: CC only gives Congress power to regulate interstate commerce and States were left to
regulate their local businesses – mining coal is not commerce. The general purposes of the Act
are beyond the power of Congress except so far as they may be realized by an exercise of some
specific power granted by the CON.

2. The Decline of Limits on the Commerce Power: The Era Beginning in 1937

NLRB v. Jones & Laughlin Steel Corp.

 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 cannot be denied
the power to exercise that control.

HELD: Under CC, Congress has power to regulate any activity, even intrastate manufacturing, if
it has any direct or indirect affect on interstate commerce. The acts which directly burden or
obstruct interstate commerce, or its free flow, are within the reach of the congressional power.

-affectation doctrine: practical effect on congress

-manufacture/commerce distinction gone, indirect/direct distinction gone

Wickard v. Filburn

HELD: Federal may regulate local activity that has potential to have substantial effect on
interstate commerce. The stimulation of commerce is a use of the regulatory function quite as
definitely as prohibitions or restrictions thereon.

-aggregation: close and substantial test is not individualized but rather applied by looking at
aggregation of similarly situated individuals

US v. Darby

HELD: Congress, following its own conception of public policy concerning the restrictions which
may appropriately be imposed on interstate commerce, is free to exclude from the commerce
articles whose use in the states for which they are destined it may conceive to be injurious to the
public health, morals or welfare, even though the state has not sought to regulate its use.

-interstate commerce should not be made the instrument of competition in the distribution of
goods produced under substandard labor conditions, which competition is injurious to the
commerce and to the states from and to which the commerce flows

-Reverses Hammer v. Dagenhart - Congress can now act on basis of substantial economic
activity individually and in the aggregate as well as denying access to interstate commerce to any
objects it thinks is bad to public policy. If Congress wants to prohibit from interstate commerce
they can. So long as it has a reason to do so, if something is a matter of commerce when
disruption of production, and even if basis is fairness, can regulate

Jones, Wickard, Darby:

1. substantial economic effect on interstate commerce than can address – no longer believes in
indirect/direct distinction (Jones)
2. aggregate affect (Wickard)

a. butterfly affect – small manifests itself into larger effect

b. aggregation – of everyone does the same thing, it has an effect, whereas individually it
would not have the same effect –aggregate individual instances and there will be enough
to create a substantial economic effect.

1. Darby Bootstrap

a. Jones said substantial economic effect, Wickard relaxes subject of case to allow for
aggregation, Darby says don’t need to be motivated solely by supply/demand. May be
motivated by other concerns such as public policy (morals). Whether or not the economy
is hurt or helped, it is for Congress to decide because matters of public policy are not for
the courts to decide
 b. the activities in Darby are economic activities. Congress was regulating substantial
economic activities, but now not promote economic activity, but regulating for public
policy independent of economic reasons.

Perez v. US

Even where extortionate credit transactions are purely intrastate in character, they nevertheless
directly affect interstate and foreign commerce.

HELD: Congress may regulate entire class of activity if it affects interstate commerce.

a. The implications of the federal system as a restraint on statutory interpretation

US v. Bass

Because the statutes sanctions are criminal, and because, under the Governments broader
reading, the statute would mark a major inroad into a domain traditionally left to the States, the
Court refuses to adopt the broad reading in the absence of clearer direction from Congress.
Unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed
the federal-state balance.

b. The "affecting commerce" rationale at the end of the Wickard era

Maryland v. Wirtz

HELD: Coverage that had been limited to employees engaged in commerce or in the production
of goods for commerce was extended to include every employee who is employed in the
enterprise engaged in commerce or in the production of goods for commerce.

Where a general regulatory statute bears a substantial relation to commerce, the de minimus
character of individual instances arising under that statute is of no consequence.

Hodel v. Virginia Surface Min & Recl. Assn.

HELD: The commerce power is broad enough to permit congressional regulation of activities
causing air or water pollution, or other environmental hazards that may have an effect on more
than one state. When Congress has determined that an activity affects interstate commerce, the
courts only need inquire whether the finding is rationale.

Heart of Atlanta Motel v. US

HELD: Congress may regulate a local business if it affects interstate commerce – only requires
rational basis & reasonable means to the end. The power of Congress to promote interstate
commerce also includes the power to regulate the local incidents thereof, including local activities
in both the States of origin and destinations, which might have a substantial and harmful effect
upon that commerce.

The determinative test of the exercise of power by the Congress under the CC is simply whether
the activity sought to be regulated is commerce which concerns more States than one and has a
real and substantial relation to the national interest.

-a rational basis for finding that racial discrimination affected commerce and the means are
appropriate

Katzenbach v. Mc Clung
 HELD: Congress has broad power and may pass any law to regulate commerce even if it affects
business that only tangentially touches interstate commerce

Wickard relation– while the focus of the legislation was on the individual restaurants relation to
interstate commerce, Congress appropriately considered the importance of that connection with
the knowledge that the discrimination was but representative of many others throughout the
country, the total incidence of which if left unchecked may bell become far reaching in its harm to
commerce.

Once an economic measure of the reach of the power granted to Congress is the CC is accepted,
questions of federal power cannot be decided simply by finding the activity in question to be
"production" nor can consideration of its economic effects be foreclosed by calling them "indirect."
Even if appellee’s activity be local and thought it may not be regarded as commerce, it may still,
whatever its nature, be reached by Congress if it exerts a substantial economic effect on
interstate commerce, and this irrespective of whether such effect is what might at some earlier
time have been defined as "direct" or "indirect."

External Limits on the Commerce Power: The State autonomy and Sovereignty Concerns
Reflected in the 10th and 11th amendments

a. The Tenth Amendment limit on congressional authority

1. Whereas the federal government has only those powers granted to it by CON, the state
governments are governments of "unlimited" powers, having all powers not prohibited to them by the
CON. This is recognized by the 10th amendment , which provides that all powers not delegated to the
federal government by the CON are reserved to the states.

US v. California

There is no limitation upon the plenary powers in federal regulation for activities in which the States
have traditionally engaged. The state can no more deny the power if its exercise has been authorized
by Congress that can an individual.

Maryland v. Wirtz

Court rejected challenge to federal regulations allegedly interfering with state autonomy

Fry v. US

HELD: in this case, the federal law was an emergency measure. But, the 10th amendment expressly
declared the CON policy that Congress may not exercise power in a fashion that impairs the States’
integrity or their ability to function effectively in a federal system.

National League of Cities v. Usery

HELD: The law could not be applied to state employees performing traditional governmental
functions. The law would impermissibly interfere with integral governmental functions: it would
significantly alter or displace the States’ abilities to structure employer-employee relationships.

Hodel v. Virginia Surface Min & Recl. Assn.

HELD: The law did not commandeer the legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program.

--National League of Cities standard: has to meet all three criteria

 1. there must be a showing that the challenged statute regulates the "States as
States"
2. the federal regulation must address matters that are indisputably attributes of
state sovereignty
3. it must be apparent that the States’ compliance with the federal law would
directly impair their ability to structure integral operations in areas or traditional
governmental functions
4. even if a 10th amendment challenge satisfied this three-part test, it might not
succeed because the federal interest advanced may be such that it justifies state
submission.

United Transportation Union v. LI RR Co.

Rejected the state autonomy challenge because there was no interference with traditional state
functions: operation of railroads has traditionally been a function of private industry.

EECO v. Wyoming

The degree of federal intrusion in this case is sufficiently less serious than it was in National League
of Cities - no showing of a potential impact of the federal scheme on States’ ability to structure
operations and set priori ties over a wide range of decisions.

Ferc v. Mississippi

Upheld the mandatory consideration requirement on the ground that Congress could have pre-
empted the field entirely; Congress adopted a less intrusive scheme and allowed the states to
continue regulating in the area on the condition that they consider the suggested federal standards.

Garcia v. San Antonio Metro Transit

The Court rejects as unsound in principle and unworkable in practice, a rule of state immunity from
federal regulation that turns on a judicial appraisal of whether a particular governmental function is
integral or traditional. State sovereign interests are more properly protected by procedural safeguards
inherent in the structure of the federal system than by judicially created limitation on federal power.

-overruled National League of Cities – effort to articulate boundaries of state regulatory immunity in
terms of "traditional governmental functions" was unworkable

South Carolina v Baker

Where, as here, the national political process did not operate in a defective manner, the 10th
amendment is not implicated.

New York v. US

While Congress has substantial power under the CON to encourage the States to provide for the
disposal of the radioactive waste generated within their borders, the CON does not confer upon
Congress the ability simply to compel the States to do so. The CON enables the federal government
to pre-empt state regulation contrary to federal interests, and it permits the federal government to
hold out incentives to the States as a means of encouraging them to adopt suggested regulatory
schemes. It does not, however, authorize Congress to simply direct the States to provide for the
disposal of the radioactive waste generated within their borders-federal manipulation of state
administrative procedures – commandeering state legislature

Prinz v. US

The federal government may not compel the States to implement, by legislation or executive action,
federal regulatory programs. The CON line is crossed only when Congress compels the States to
 make law in their sovereign capacities. Congress cannot use the states as a front to accomplish its
own objective

Affect on Lopez – Congress is choosing not to commandeer a state legislator, instead it is choosing
to act like a state legislature and ordering officers to act under the statute. Congress cannot itself
decide to legislate wherever it wants and can’t deploy federal officials to act randomly – there must be
something in the statute that indicates Congress sees that he problem is interconnected

The Eleventh Amendment as a protector of state sovereignty and a curb on congressional powers

A jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party’s or
foreign governments claims against a state government.

1. the 11th amendment protects only state government, not local

2. Native American tribes are treated as other private parties, and so they are barred from bringing an
action against a state government in federal court.

Seminole Tribe of FL v. FL

HELD: Congress has no power under the Commerce Clause – either to regulate commerce "among
the States" or with the "Indian Tribes" – to abrogate state immunity under the 11th Amendment. The
11t h amendment restricts the judicial power under Article III and Article I cannot be used to circumvent
the CON limitations placed on federal jurisdiction.

A. Federalism-Based Restraints on Other National Powers in the 1787 Constitution

1. The taxing power as a regulatory tool

Bailey v. Drexel Furniture Co. (Child Labor Tax Case)

There comes a time in the extension of the penalizing features of the so called tax when it loses
its character as such and becomes a mere penalty with the characteristics or regulation and
punishment.

-tax or penalty: the difference between a tax and a penalty is sometimes difficult to define and yet
their consequences of that distinction in the required method of their collection often are important

-Pre-text passage (McCulloch)

US v. Kahriger

A federal excise tax does not cease to be valid merely because it discourages or deters the
activities taxed. Unless there are penalty provisions extraneous to the tax need, court are without
authority to limit the exercise of the taxing power.

2. The spending power as a regulatory device

United States v. Butler

The Court held that the Act was not a valid exercise of the power to spend for the general
welfare. The grant of power to tax and spend for the general national welfare must be confined to
the enumerated legislative fields committed to the Congress. The power of Congress to authorize
expenditures of public monies for public purposes is not limited by the direct grants of legislative
power found in the CON. But the adoption of the broader construction leaves the power to spend
subject to limitations.
 Charles Steward Machine Co. v. Davis

The statute does not call for a surrender by the states of powers essential to their quasi-sovereign
existence. A wide range of judgment is given to the several states as to the particular type of
statute to be spread upon their books. What they may not do if they would earn the credit, is to
depart from those standards which in the judgment of Congress are to be ranked as fundamental.

Helvering v. Davis

Only a power that is national can serve the interests of all. When money is spent to promote the
general welfare, the concept of welfare or the opposite is shaped by Congress, not the States –
congressional authority is the General Welfare Clause.

South Dakota v. Dole

Incident to the spending power, Congress may attach conditions on the receipt of federal funds to
further broad policy objectives by conditioning receipt of federal moneys upon compliance by the
recipient with federal objectives. The Condition imposed by Congress is directly related to one of
the main purposes for which highway funds are expended – safe interstate travel.

Test for limits on Congress’ power to attach conditions on federal money that would require
states to adopt their own law:

1. exercise of spending power has to do with the general welfare

2. if attaches a condition, must do so unambiguously
3. restriction might be illegitimate if not related to the federal interest in national
projects

1. War, Foreign Affairs, and Federalism

a. The War Power

Woods v. Cloyd W. Miller Co.

The war power includes the power to remedy the evils which have arisen from its rise and
progress – the war power does not necessarily end with the cessation of hostilities.

b. Treaties, Foreign Affairs, and Federalism

Missouri v. Holland

A treaty can broaden the scope of Congress’ affirmative authority. Here a national interest of very
nearly the first magnitude is involved. It can be protected only by national action in concert with
that of another power. Since the government can make a treaty for any purpose it wants, then
Congress is free to do what it wants under the treaty clause, within the restraints of the CON.

Reid v. Covert

No treaty could confer on Congress authority to act in a manner inconsistent with any specific
provisions of the CON. The court has never held a treaty unconstitutional, but it is conceivable
that the treaty power extends only to subjects plausibly bearing on our relations with other
countries.

A. Federal Limits on State Power to Regulate the National Economy

1. State Regulation and the Dormant Commerce Clause

Did the state intend to discriminate against interstate commerce? If yes, the state act is no good. If no:
 a. Balance

-factors in favor of the state:

1. If the regulation in an arena of traditional state interest such as safety

-factors against the state:

2. Is there a discriminatory effect of state act

3. Are there alternatives less restrictive of interstate commerce available
4. If there is a potential for multiple burdens, real or hypothetical (Bibb)

The source of the dormant commerce clause

a. Early developments

Gibbons v. Ogden

b. The Modern Court’s Approach

Pike v. Bruce Church

Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its
effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on
such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local
purpose is found, then the question becomes one of degree. And the extent of the burden that will
be tolerated will of course depend on the nature of the local interest involved, and on whether it
could be promoted as well with a lesser impact on interstate activities.

-Facial Discrimination against out-of-state commerce by States

Philadelphia v. NJ

Whatever NJ ultimate purpose, it may not be accomplished by discriminating against articles of

commerce coming from outside the state unless there is some reason, apart from their origin, to
treat them differently. Both on its face and in its plain effect, the law violates this principle of
nondiscrimination.

- protectionist purpose
- social welfare

Chemical Waste Management Inc. v. Hunt

A state may not prohibit private landfill or waste disposal facilities from accepting out-of-state
garbage or waste or surcharge such waste unless Congress authorizes such discrimination.

Oregon Waste Systems v. Dept. of Environmental Quality

The differential surcharge was facially discriminatory and thus subject to the strictest scrutiny or a
virtually per se rule of invalidity. In-state producers’ payment of general taxes did not justify the
higher fee to out-of-state waste, for the two forms of taxation did not pertain to substantially
equivalent economic events.

West Lynn Creamery v. Healy

A State may not benefit in-state economic interests by burdening out-of-state competitors. The
paradigmatic example of a law discriminating against interstate commerce is the protective tariff
which taxes goods imported from other states, but does not tax similar products produced in
State.

Foster-Foundation Packing Co. v. Haydel

The practical operation and effect of the provisions complained of will be directly to obstruct and
burden interstate commerce.

Dean Milk Co. v. Madison

In thus erecting an economic barrier protecting major local industry against competition from
without the State, the State plainly discriminates against interstate commerce. This it cannot do,
even in the exercise of its unquestioned power to protect the health and safety of its people, if
reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are
available

- interstate and intrastate discrimination

- not facially discriminatory  provides burden to those not within that area

Fort Gratiot Sanitary Landfill v. Michigan Dept. National Resources

A State may not avoid the strictures of the CC by curtailing the movement of articles of commerce
through subdivisions of the state rather than through the state itself.

C&A Carbone Inc. v. Clarkstown

a law requiring all locally produced solid waste to be processed at a local waste processing
business was held to violate the CC because it was a trade barrier against competition from out-
of-state waste processors

-Protectionist Purpose and Effect

Baldwin v. Seeling

States may not protect local economic interests by limiting access to local markets by out-of-state
sellers – even in the absence of facial discrimination. Restrictions so contrived are an
unreasonable clog on the mobility of commerce.

Henneford v. Silas Mason Co.

Local retail sellers will be helped to compete upon terms of equality with retail dealers in other
states who are exempt from a sales tax; local buyers will no longer be tempted to place their
orders in other states to escape the local sales tax.

-De facto discrimination

Bacchus Imports, Ltd. v. Dias

The Court invalidates facially neutral statutes that actually appear to exist solely in order to
protect a particular in-state interest or target a particular out-of-state interest. Because the
exemption was motivated by an intent to confer a benefit upon local industry not granted to out-
of-state industry, the exemption was held invalid.

Hunt v. Washington State Apple Advertising

When such state legislation comes into conflict with the CC’s overriding requirement of a national
"common market" we are confronted with the task of effecting accommodation of the competing
 national and local interests. The law had the practical effect of not only burdening interstate sales,
but also discriminating against them.

-Limits of inferring protectionism from discriminatory effect rather than from motive

Breard v. Alexandria

The Court does not always infer discrimination against out-of-state interests from practical
burdens upon them.

Milk Control Board v. Eisenberg Farms

The Court has upheld application to out-of-state buyers of local price and production controls
when it finds their effects on interstate commerce merely incidental to regulation of a local market
- state barriers to out-of-state buyers

HP Hood & Sons v. DuMond

The distinction between the power of the state to shelter its people from menaces to their health
or safety and from fraud, even when those dangers emanate from interstate commerce, and its
lack of power to retard, burden or constrict the flow of such commerce for their economic
advantage is one deeply rooted both in history and law

-DCC is meant to protect free trade common market – let supply and demand work without state
interruption.

Legislation which discriminates on its face is almost always unconstitutional. Economically protectionist
( Hood, Washington) legislation, even if not discriminatory on face, is unconstitutional.

Cities Service Gas Co. v. Peerless Oil

The price regulation applies to all gas taken from the field, whether destined for interstate or
intrastate consumers. The Court cannot say that there is a clear national interest so harmed that
the state price-fixing orders here employed are barred by the CC

Hughes v. Oklahoma

A state could not prohibit export of live baitfish to out-of-state purchasers because the sale of
such fish to out-of-state purchasers would not impair any interest of the state, except the interest
of protecting local purchasers of baitfish from competition by out-of-state purchasers. States may
promote a legitimate purpose only in ways consistent with the basic principle that our economic
unit is the Nation and that when a wild animal becomes an article of commerce, its use cannot be
limited to citizens of one state to the exclusion of citizens of another. State restraints on exports of
natural resources

NE Power v. New Hampshire

The agency has made it clear that its order is designed to gain an economic advantage for NH
citizens at expense of Company’s customers in neighboring states. Agencies exportation ban
places direct and substantial burdens on transactions in IC.

Sporhase v. Nebraska

The Court while acknowledging some state authority to restrict export of water, it refused to
accept the State’s broadest claims
Pike v. Bruce Church

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its
effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on
such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local
purpose is found, the question becomes one of degree - the modern balancing test

SC State Highway Dept. v. Barnwell Bros

There are matters of local concern, the regulation of which unavoidably involves some matters of
local concern, the regulation of which unavoidably involves some regulation of interstate
commerce but which, because of their local character and their number and diversity, may never
be fully dealt with by Congress. Few subjects of state regulation are so peculiarly of local concern
as is the use of state highways.

Barnwell test: rational basis

1. Has the state acted via a means rationally related to a legitimate end?
2. Has the state intentionally discriminated against interstate commerce?

State is almost always going to win so long as the legislation is not discriminatory on its face
because there is almost always a reason for a state interest

Southern Pacific Co. v. Arizona

The State’s regulation of train lengths, admittedly obstructive to interstate train operations, and
having a seriously adverse effect on transportation efficiency and economy, passes beyond what
is plainly essential for safety since it does not appear that it will lessen rather than increase the
danger of accident. The state interest is outweighed by the interest of the nation in an adequate
economical and efficient railway transportation service, which must prevail.

-Purest form of Interest balancing test: (Barnwell alone is not balancing)

-Added a third element to Barnwell test:

1. Do the burdens on IC resulting from the state regulation outweigh the local benefits of the
regulation?  balancing test

Stone changes mind from Barnwell: shifts from rational basis to interest balancing test.

Bibb v. Navajo Freight Lines, Inc.

Safety measures carry a strong presumption of validity. Unless the court can conclude on the
whole record that the total effect of the law as a safety measure in reducing accidents and
casualties is so slight or problematical as not to outweigh the national interest in keeping
interstate commerce free form interferences which seriously impede it, the court must uphold the
statute. This is a case where local safety measures that are nondiscriminatory place an
unconstitutional burden on interstate commerce.

Kassel v. Consolidated Freightways

The total effect of the law as a safety measure in reducing accidents and casualties is so slight
and problematical that it does not outweigh the national interest in keeping interstate commerce
free from interferences that seriously impede it. Regulations designed for the salutary purpose of
safety may further the purpose so marginally and interfere with commerce so substantially, as to
be invalid under the CC.
 -balancing test: weight and nature of state regulatory concern in light of the extent of the burden
imposed on the course of interstate commerce

Exxon Corp. v. Governor of Maryland

The Act creates no barriers whatsoever against interstate independent dealers; it does not
prohibit the flow of interstate goods, place added costs upon them, or distinguish between in-state
and out-of-state companies in the retail market. So long as not trying to wreck a market but trying
to deal with inequities w/in a market w/in a state, then ok.

-state burdens on trade

Minnesota v. Clover Leaf Creamery Co.

A non discriminatory regulation serving substantial state purposes is not invalid simply because it
causes some business to shift form a predominantly out-of-state industry to a predominantly in-
state industry. Only if the burden on interstate commerce clearly outweighs the State’s legitimate
purpose does such a regulation violate the CC.

Lewis v. BT Investment Manages Inc.

The Law prevents competition in local markets by out-of-state firms with the kinds of resources
and business interests that make them likely to attempt de novo entry and found the law parochial
in the sense that it overtly prevents foreign enterprises form competing in local markets.

-state burdens on business entry

Edgar v. Mite Corp

The Act imposes a substantial burden on interstate commerce which outweighs its putative local
benefits

-shift from barriers on business entry to restraints on takeover effects

CTS Corp. v. Dynamics Corp. of America

The Act does not prohibit any entity – resident or nonresident – from offering to purchase, or from
purchasing, shares of Indiana corporations, or from thereby attempting to gain control. It only
provides regulatory procedures designed for the better protection of the corporations
shareholders.

The "Market Participant" Exception to the Dormant Commerce Clause

South Central Timber v. Wunnicke

If a state is acting as a market participant rather than as a market regulator, the dormant CC
places no limitation on its activities.

-Market participant doctrine: the limit of the doctrine must be that it allows a State to impose
burdens on commerce w/in the market in which it is a participant, but allows it to go no further.
The State may not impose conditions, whether by statute, regulation, or contract, that has
substantial regulatory effect outside of that particular market. Unless the market is relatively
narrowly defined, the doctrine has the potential of swallowing up the rule that States may not
impose substantial burdens on interstate commerce even if they act with the permissible state
purpose of fostering local industry.

Discriminatory Regulations:
 -Regulations protecting local businesses – laws designed to protect local businesses against
interstate competition will be invalidated

-Regulations requiring local operations – if a state law requires a business to perform specific
business operations in the state to engage in other business activity w/in the state, the law will
normally be held invalid as an attempt to discriminate against other states where the business
operations could be performed more efficiently.

-Regulations limiting access to in-state products – a state law that makes it difficult or
impossible for out-of-state purchasers access to in-state products is likely to be held invalid

Exceptions:

-Necessary to Important State Interest – a discriminatory state or local law may be valid if t
furthers an important, non-economic state interest and there are no reasonable alternatives
available

-State as Market Participant – The CC does not prevent a state from preferring its own citizens
when the state is acting as a market participant

SUMMARY OF THE DORMANT CC

WHAT DOES NOT WORK WITHIN POST 1937 PERIOD:

1. Jackson’s approach in Hood as stated – do not think it is easy to distinguish between health and
safety regulation on one hand and economic regulation on the other. Jackson seems to suppose
that can engage in a straightforward categorization. This does not work because if it is in the
CON scheme, then those who are looking to economic legislation will disguise as health and
safety regulation.
2. Stone in Southern Pacific v. Arizona does not work – interest balancing if pursuing seriously will
involve judiciary too much and cause judges to make difficult determinations. Unless prepared to
do things like that, it is hard to interest balance even if could place a value on health and safety.
Can’t get to the stage where say responsibly balancing. It did not read literally requires us to state
something that ought to take seriously
3. Clark in Dean Milk – less restrictive alternatives pursued rigorously will cause problems – how do
know will serve interests just as well, what is less restrictive? It becomes hard to figure out.
4. Powell in CTS case – part of problem in Kassell – Iowa was legislating differently than other
states and that is what made in unconstitutional. Would Kassell have come out differently if it
varied from state to state? If Po well says what Iowa is doing is out of synch, that what is the
difference in Kattrell?
5. Barnwell rational basis – so long as legislation does not discriminate on its face, it is not
unconstitutional. The Court does not like this test.
6. Discrimination rule – is a puzzle even though can understand the rule – can’t discriminate against
interstate commerce. Care about discrimination in practice or on face of statute?
7. Not including market participation – Wunnicke - the Court is not interested
8. Even though may not know how to balance interests, can spot spurious interests – Arizona,
Bibb – no safety gain. The Court makes reference to Raymond that it is difficult to show safety
restraint less restrictive analysis in a lesser form to show something is spurious
9. Able to show real interests – Baitfish case – courts were genuinely persuaded that there was an
environmental interest at stake

DORMANT COMMERCE CLAUSE

Did the state intend to discriminate against interstate commerce? (facially neutral)

Yes: Act is no good no

 Factors in favor of state:

- If the regulation is in arena of traditional state interest

Factors against state:

- Is there a discriminatory effect of state act

- Are there less restrictive alternatives
- Is there potential for multiple burdens

1. The Privileges and Immunities Clause of Article IV

There are two P & I Clauses: The 14th Amendment P & I Clause and the Interstate P & I Clause of Article
VI.

a. Article IV – Privileges of State Citizenship

1. Citizens of each state shall be entitled to all P & I of citizens in the several states. Thus it prohibits
discrimination by a state against nonresidents – only "fundamental rights" – those involving
important commercial activities or civil liberties - corporations are not citizens of state for purpose
of P & I

a. Substantial Justification Exception

1. A state law discriminating against nonresidents may be valid if the state has a substantial
justification for the different treatments. It must show that nonresidents either cause or part of the
problem it is attempting to solve, and there is a less restrictive means to solve the problem.

United Building & Construction v. Mayor and Council of Camden

Camden may, without fear of violation of CC, pressure private employers engaged in public works
projects funded in whole or in part by the city to hire city residents. That same exercise of power
to bias the employment decisions of contractors against out-of-state residents may be called to
account under the P&I clause. A city ordinance was an apparent violation of the Article IV P & I
Clause because it gave a preference in private sector employment to city residents.

SC of New Hampshire c. Piper

The clause does not preclude discrimination against nonresidents where: (I) there is a substantial
reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents
bears a substantial relationship to the State’s objective. In deciding whether the discrimination
bears a close or substantial relationship to the State’s objective, the Court has considered the
availability of less restrictive means.

Edwards v. California

The majority opinion relied solely on the commerce clause.

- A right to personal mobility

1. Congressional Ordering of Federal-State Relationships by Preemption and Consent

a. Preemption of State Authority

Pacific G & E v. State Energy Resources

 Even where Congress has not entirely displaced state regulation in a specific area, state law is
preempted to the extent that it actually conflicts with federal law. Such a conflict arises when
compliance with both federal and state regulations is a physical impossibility.

-it would be an easy case if thought what the state law would do would disrupt or relax federal
enforcement of safety standards – actual conflict – state law makes it impossible for federal law
to govern in its own terms. Harder cases occur in occupying the field – the feds say that they
mean to be the only ones to regulate. Therefore, any state regulation, even though it did not
come obvious conflict with federal regulation, state law is preempted because federal law was
meant to be the only law.

Rice v. Santa Fe Elevator

The question in each case is what the purpose of Congress was. The Court requires a clear
showing that Congress meant to occupy a field.

Hines v. Davidowitz

Where the federal government, in the exercise of its superior authority in this field, has enacted a
complete scheme of regulation and has therein provided a standard for the registration of aliens,
states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or
complement, the federal law, or enforce additional or auxiliary regulations.

Florida Lime & Avocado Growers

There is neither such actual conflict between the two schemes of regulation that both cannot
stand in the same area, nor evidence of congressional design to preempt the field.

Gade v. National Solid Wastes Mgt.

The Court found conflict preemption, reading the federal scheme to forbid duplicative regulation.

Consent to State Laws

Leisy v. Hardin

Inasmuch as interstate commerce is national in its character, and must be governed by a uniform
system, so long as Congress does not pass any law to regulate it, or allowing the States so to do,
it thereby indicates its will that such commerce shall be free and untrammeled.

Wilkerson v. Rahrer

No reason is perceived why, if Congress chooses to provide that certain designated subjects of
interstate commerce shall be governed by a rule which divests them of that character at an earlier
period of time than would otherwise be the case, it is not within it competency to do so.

1. The McCarran Act

Prudential Insurance v. Benjamin

Congress can consent to any variety of state legislation impinging on commerce: in the exercise
of the national commerce power, it can permit state laws the Court would otherwise consider
unconstitutional under the dormant CC. Under the Act Congress is understood that the continued
regulation of insurance by the states is important – state law is the Congressional choice and
Congress has the power to regulate interstate commerce and also has the power to delegate its
authority to the states. Therefore, if Congress can regulate insurance, then it can give the states
the power to regulate insurance.
 Metropolitan Life Ins. Co. v. Ward

The States aim to promote domestic industry is purely and completely discriminatory, designed
only to favor domestic industry within the state, no matter what the cost to foreign corporations
also seeking to do business there.

-equal protection as a limit on state protectionism

A. Separation of Powers

The CON separates governmental powers among the branches of government. This doctrine prohibits the
legislature from interfering with the courts’ final judgments.

1. The Authority to Make National Policy: The Conflict Between Executive Authority and Legislative
Power

The entire "executive power" is vested in the President by Article II, Section I of the CON. Various
executive functions may be and are delegated within the "executive branch" by the President or by
Congress.

a. Domestic Affairs

1. Appointment – Under Article II, Section 2, the President is empowered "with the advice and
consent of the Senate" to appoint officers of the US, whose appointments are not herein otherwise
provided for – 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 departments.
2. Removal – The CON is silent as to removal of appointees.

a. by President – Under the Court’s decision, the President can remove high level,
purely executive officers at will, without interference from Congress. Congress may
provide statutory limitations on the President’s power to remove all other executive
appointees
b. by Congress – Congress cannot give itself the power to remove an officer
charged with the execution of laws except through impeachment. Congress cannot
give government employee who is subject to removal from office by Congress any
powers that are truly executive in nature.

Youngstown Sheet & Tube v. Sawyer (the steel seizure case)

Presidential authority to set policy on foreign relations through executive agreements. Without
such approval, power could only stem from CON – the power cannot be implied.

In the framework of our CON, the President’s power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The CON limits his functions in the law-making
process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And
the CON is neither silent nor equivocal about who shall make laws which the President is to
execute. Commander in chief power is limited to military functions of strategy and do not apply
when possibility of war is too remote.

Black: Congress’ job is to make the laws and the President enforces – the President is making
law here. The executive order looks like a statute and if it does what a statute does, then it has to
be followed. If it looks like legislation, then it is legislation - Model of law making form statutes and
looking at executive order to see if looks like a statute.
 Frankfurter: Saying don’t just read document, must look further. The practice gives meaning to
terms. All law/legislation take content and language from the larger legal tradition from which they
are just one product. To make sense, have to look at tradition as a whole – previous cases.

Douglas: Since President could not act constitutionally unless prepared to pay for what took, and
he could not pay without congressional approval, the President needed to involve Congress
based on back compensation issue – Bill of Rights protections of individual rights and discern
from SOP.

Jackson: "zone of twilight" – these categories organize cases, not decide:

Tripartite analysis:

1. President has most power when he has Article II powers and delegated
power
2. President has less power when he has Article II powers, but Congress
has not spoken (zone of twilight)
3. President has least power when he acts in contravention of set national
policy. He can only have article II powers minus power limited by Congress

Jackson places this case in #3 because it is an issue that has been previously decided.
Concurrency – the President and Congress act together in addressing issues on CON
agenda. Where choose to act unilaterally, the CON must speak specifically.

Dames & Moore v. Regan

Congress cannot anticipate and legislate with regard to every possible action the President may
find it necessary to take or every possible situation in which he might act. Such failure of
Congress specifically to delegate authority does not, especially in the areas of foreign policy and
national security, imply congressional disapproval of action taken by the Executive.

-Rhenquist argument looks like Frankfurter argument: a lot of statutes which seem to suppose
authorization of President and asserting some level of Congressional involvement as well.

1. Separation of Powers: Congressional Encroachments on the Executive’s Domain

a. Congress has broad discretion to delegate its legislative power to executive officers and/or administrative
agencies, and even delegation of rulemaking power to the courts has been upheld.

1. to be delegable, the power must not be uniquely confined to Congress; e.g. the power to declare war
cannot be delegated, nor the power to impeach
2. Separation of Powers Limitations – while Congress has broad power to delegate, the separation of
powers doctrine restricts Congress from keeping certain controls over certain delegates. Congress
cannot give a government employee who is subject to removal by Congress purely executive power.

a. Veto Power

1. Every act of Congress must be approved by the President before taking effect unless passed
over his disapproval by 2/3 vote of each house.
2. The President has 10 days to exercise his veto power. If he failed to act within that time, 1) the bill
becomes law if Congress is still in session; or 2) the bill is automatically vetoed if Congress is not
in session

INS v. Chadha

Congress made a deliberate choice to delegate to the Executive Branch the authority to allow
deportable aliens to remain in this country in certain specified circumstances. Congress must abide
by its delegation of authority until that delegation is legislatively altered or revoked. Congress passes
a statute which gives authority to an agency, by not wanting to give it all authority takes some back
-One house veto

Bowsher v. Synar

Congress and the presidential power to appoint and remove subordinates. To allow an officer who is
subordinate to execute a law that Congress enacted would effectively permit Congressional veto,
which is not allowed. Once Congress makes its choice in enacting legislation, its participation ends.
Congress can therefore control the execution of its enactment only indirectly – by passing new
legislation. By placing the responsibility for execution of the Act in the hands of an officer who is
subject to removal only by itself, Congress in effect has retained control over the execution of the Act
and has intruded into the executive function.

Meyers v. US

It was a reasonable implication from the President’s power to execute the laws that he should select
those who were to act for him under his direction in the execution of the laws. As his selection of
administrative officers is essential to the execution of the laws by him, so must be his power of
removing those for whom he can not continue to be responsible.

Humphrey’s Executor v. US

In view of the functions of the agency, Congress could limit the Presidents power of removal. The
Meyers principle is limited to purely executive officers.

Wiener v. US

As to officers who are not purely executive, power to remove existed only if Congress may fairly be
said to have conferred it. This differentiation derives from the difference in functions between those
who are part of the Executive establishment and those whose tasks require absolute freedom from
Executive interference.

Morrison v. Olson

Because the IC may be terminated for "good cause" the Executive, through the AG, retains ample
authority to assure that counsel is competently performing his statutory responsibilities in a manner
that comports with the provisions of the Act. The Act does not undermine the powers of the Executive
branch or disrupt the proper balance between the coordinate branches by preventing the Executive
Branch from accomplishing its constitutionally assigned functions.

-Federal law does not encroach on Executive or violate SOP.

Metropolitan Wash. Airports v. Citizens for Abatement

The majority continues to insist on a quite stringent, rigid review under separation of powers
principles. Congress’s conditioning of the airport’s transfer on the creation of the Board of Review
violated the separation of powers.

-Delegation of Legislative Powers of Congress

Mistretta v. US

Since substantive judgment in the field of sentencing has been and remains appropriate of the
Judicial Branch, and the methodology of rulemaking has been and remains appropriate to that
Branch, Congress considered decision to combine these functions in an independent Sentencing
Commission and to locate that Commission within the Judicial Branch does not violate the principle of
separation of powers. Foreign affairs: Judicial rule-making falls within a constitutional twilight area
where government branches merge – Congress gave commission sufficient policy guidelines as to
relevant considerations and purposes their guidelines should serve. Delegation of rulemaking power
to the courts has been upheld.
 US v. Curtiss-Wright Export

The un-wisdom of requiring Congress in this field of governmental power to lay down narrowly
definite standards by which the President is to be governed.

HELD: Federal government always exclusively controlled foreign affairs.

Jones v. Clinton

The doctrine of separation of powers does not require federal courts to stay all private actions against
the President until he leaves office. If Congress deems it appropriate to afford the President stronger
protection, it may respond with appropriate legislation.

Executive Privilege and Immunities

The executive privilege is not a CON power, but an inherent privilege necessary to protect the
confidentiality of presidential communication.

a. Extent of privilege – presidential documents and conversations are presumptively privileged,

but the privilege must yield to the need for such materials as evidence in a criminal case to which
they are relevant and otherwise admissible.
b. executive immunity

1. Absolute immunity for President – the President has absolute immunity from civil damages
based on any action that the President took within his official responsibilities.

US v. Nixon

Neither the doctrine of separation of powers nor the need for confidentiality of high level
communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity
form judicial process under all circumstances. The impediment that an absolute unqualified privilege
would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal
prosecutions would plainly conflict with the functions of the court under Article III.

-Judiciary may interfere within a purely inter branch dispute of the executive if the executive if
preventing the system of checks and balances from functioning

Nixon v. Administrator of General Services

-Impeaching the President

Nixon v. Fitzgerald

President is immune from action for damages in a civil suit.

Power over external affairs

1. War – although lacking the power to declare or initiate a formal war, the President has extensive
military powers.

a. Actual hostilities – the President may act militarily under his power as commander in chief of
the armed forces, under Article II, Section 2, in actual hostilities against the US w/o a congressional
declaration of war. But Congress may limit the President under its power to enact a military appropriation
every two years
 b. Treaty powers – the treaty power is granted to the President by and with the advice and consent
of the Senate, provided 2/3 of the Senators present concur.

1. Supreme law – all treaties which shall be made under the authority of US are the
supreme law of the land. Thus, it is clear that any state action or law in conflict with a US
treaty is invalid.

-no treaty has this supremacy status unless it is expressly or impliedly self-executing, i.e.
without necessity for congressional implementation

-some treaties require the signatory nations to pass legislation to effectuate their ends –
independent source of congressional power.

-assuming that an act of Congress is within its powers, a conflict between such act and a
valid treaty is resolved by order of adoption.

-treaties are not co-equal with CON, but they can broaden the scope of Congress’
affirmative authority.

a. executive agreements – do not require the consent of the Senate – can be on any subject as
long as they do not violate the CON

A. Constitutional and Prudential Limits on CON adjudication

1. Standing to litigate – the requisite personal interest

1. the P have suffered a concrete and particularized injury-in-fact that is actual or imminent – must
not be generalized injury (not shared by everyone), no third party claims, can be monetary or
aesthetic
2. the injury is fairly traceable to the challenged action of the D
3. A favorable decision by the court is likely to redress the plaintiffs injury.

If a case does not meet the Article III minimum of case and controversy a federal court cannot hear the case
and Congress cannot authorize the court to hear the case unless an amendment is passed.

Third party claim exceptions:

1. the P that is raising the claim is under a legal duty that violates the third party’s rights (Dr. in an
abortion case)
2. If failing to allow the third party claim would nullify a right itself
3. If it is hard for the proper party to raise the claim for themselves

Prudential considerations – a case may meet the Article III minimum, but the court may exercise
their discretion and refuse to hear a case based on prudential considerations. Congress may
mandate that the court hear such a case since Article III limits have been met.

-there is no third party standing – can’t assert other parties rights.

exception: person not able to assert rights self – "no use terti"

Warth v. Seldin

A plaintiff who seeks to challenge exclusionary zoning practices must allege specific concrete facts
demonstrating that the challenged practices harm him, and that he personally would benefit in a
tangible way from the court’s intervention.
 Allen v. Wright

The links in the chain of causation between the challenged Government conduct and the asserted
injury was far too weak for the chain as a whole to sustain P standing. The Court emphasizes the
importance of demonstrating adequate causation by requiring that the allegedly unlawful conduct
cause P injury in fact and that the injury was likely to be redressed by a favorable decision.

Lujan v. Defenders of Wildlife

A P raising only a generally available grievance about government – claiming only harm to his and
every citizen’s interest in proper application of the CON and laws, and seeking relief that no more
directly and tangible benefits him than it doe s the public at large – does not state an Article III case or
controversy. Generalized grievance cases have typically involved Government violation of procedures
assertedly ordained by the CON rather than the Congress.

-Scalia says citizen suit provision is unconstitutional action by Congress

Baker v. Carr

Political question doctrine. The case supposes that judges can make law out of constitutional
provisions

Bennett v. Spear

The Court says suit is alright – only a few individuals have the same interest, rather than a
generalized grievance

1. Additional Barriers to adjudication: questions of timing

a. Mootness – applies when a claim ceases to be a live controversy or when the parties to a suit no
longer have legal interests in the outcome. The doctrine ensures that the federal courts address only
issues that they can successfully resolve or re dress. Mootness requires more than merely the D
cessation of the violating activity – the D must show that the activity, for one reason or another, cannot be
reasonably expected to recur.

Exceptions where if a case becomes moot, it is still capable of judicial resolution

1. continuing harm to P (threat of prosecution – threat is a harm)

2. case is capable of continuing reoccurrence
3. Civil cases – similar case arises in the future but will always evade judicial review
(challenges to abortion laws)

a. Ripeness - timing

To figure out whether a case is justiceable:

1. situation of the other party who is raising the defense/claiming the right – the situation at hand
2. the legal instrument invoking – CL rule or CON provision

a. Third party problems when invoking an instrument that does not apply to individual

SEPARATION OF POWERS
The carefully crafted system of enumerated powers in the CON is a checks and balances adopted to
forestall excessive concentrations of power and the corruption of tyranny which such power inevitably
begets. The CON contemplates an internally balanced, self-correcting system of checks and balances on
separation of powers and reservation of rights.

Marbury v. Madison 1803 MARSHALL

"There exists a universal body of principles to which the laws of men must conform. Since judges are best
qualified by skill and training to find and discover this law, and since the CON precluded legislative law
finding in CON cases, it follows that the proper branch to determine the legitimacy of the legislative
enactments is the judiciary"

o Judicial Review

1. Article III provides that the judicial power of the US shall extend to all cases and controversies
arising under the CON, and vests that judicial power in the S/C
2. Article I vests in Congress all legislative powers granted by the CON
3. 10th amendment reserves to the states or people all powers not delegated to the US

o The CON clearly contemplates that the judiciary shall, in the exercise of judicial power, determine
whether a particular piece of legislation is within the legislative power of the Congress, and that in
making that determination the Court shall ground its decision in the CON.

INS v. Chadha 1983 BURGER

The court struck down a legislative veto proposition of the Immigration and Naturalization Act which
reserved to either house of Congress the power to override the AG’s suspension of a deportation
order. The Court held unconstitutional the one-house veto provision in the Act.

o The prescription for legislative action represents the Framers decision that the legislative
power of the Federal Government be exercised in accord with a single, finely wrought and
exhaustively considered, procedure. The Court reacting to perceived congressional
aggrandizements of power by insisting upon an exceedingly strict adherence to the divisions
of functions between the 3 branches set by the CON.
o Congress could not condition agency actions on the subsequent approval of the
legislature alone. The CON requirements of bicamerality and presentment to the President
reflect "the Framers" decision that the legislative power o f the Federal Government to be
exercised in accord with a single, finely wrought and exhaustively considered, procedure.
o These provisions expressly mandate both bicamerality (passage by majority of both
houses) and presentment to the President for possible veto, not simply when Congress
purports to be legislating but whenever it takes actions that must be regarded as legislative.
Because the congressional veto was legislative action not conforming with presentments
clause, it was unconstitutional. More importantly, it interfered with an executive branch
decision to execute immigration laws.
o Dissent – WHITE: This case resolved that the Article II mandate for the President to
execute the law is a directive to enforce the law which Congress has written. Under this
amendment, as long as Congress does not interfere with or encroach upon the CON powers
of the executive, Congress may condition its delegation s of power through the legislative
veto device.

Bowsher v. Synar – Burger 1986

The Court’s exploration of how to characterize government agency officers and the permissible extent of
congressional control over officers performing executive functions. The court again adopted a formalistic
approach, striking down the central provision of the Balanced Budget and Emergency Deficit Control act
of 1985. The Court invalidated the Comptroller Generals power to shape budget deficit reduction plans.
The Court forbade an officer removable by Congress to perform executive functions.
 -The CH is nominated by the President from a list of candidates complied by the Speaker of the House
and the President of the Senate. The nomination is then confirmed by the Senate.

o The Court held that the Act violated the principle of separation of powers by assigning executive
powers to a legislative agent (Comptroller General), thus impermissibly allowing Congress to
retain control over the execution of the Act.
o The CG post and the General Accounting office he directs were established by an Act. The Act
vests the CG with authority to investigate the receipt and disbursement of public funds and to
settle and adjust all claims and accounts of the federal government. The CG is appointed by the
President subject to senatorial approval and is removable by Congress for statutorily specified
cause.
o The Act was found to be unconstitutional, violating the constitutionally mandated separation of
powers by vesting executive powers in an officer removable by Congress. To permit Congress to
reserve for itself the power of removal of an officer charge d with the execution of the laws would,
in practical terms, reserve in Congress control over the execution of laws. Congress therefore
controls the CG and, as a legislative officer, the CG may not execute the law.
o Chadha – the removal power would operate as a "congressional veto" permitting Congress to
remove the CG if he executed the laws in ways that Congress found unsatisfactory.
o The CG is subservient to Congress because the removal provision of the Act creating the CG
office is sufficiently vague and broad to allow removal for any number of actual or perceived
transgressions of the legislative will. The CG is subject to congressional pressure because
historically he has considered himself an agent of Congress.
o the Court equated removal power with control of an officer for separation to power purposes –
once an officer is appointed, it is only the authority that can remove him, and that the authority
who appointed him, that he must fear and, in the performance of his functions, obey.
o The Court labeled the CG an executive actor in spite of the genesis and intended function of his
office. His duties under the Act, in the Court’s view, constituted the very essence of the execution
of the law, and the power to remove an officer so charged with the execution of the law could not
be reserved for Congress. A government constituted under separation of powers principles
denies the legislative branch active control over the executive branch that such power of removal
implies.

STEVENS: concurring – By delegating its budget-cutting power to one of its agents, Congress had
evaded the constitutionally mandated procedures for formulating national policy that had been
articulated in Chadha. Because Congress could perform this function only through a joint resolution, it
could not authorize a "lesser representative" ho was not subject to similar constraints to do so.

WHITE: dissent – Because the removal power is substantively limited, and because the veto power
secures for the President a principle role in the removal process, the CG cannot realistically be
considered a mere pawn through which Congress could usurp the executive branch’s functions.

BLACKMUN: dissent – A functional separation of powers analysis that examines a particular

arrangement in terms of how it contributes to or detracts from the maintenance of these desirable
tensions among the three branches best reflects the separation of powers concept. Tribe –
interdependence, not functional independence, underlies the separation of powers concept.

Youngstown Sheet & Tube Co. v. Sawyer 1952

o Jackson: concur - There are three situations in which the S/C might be called upon to officiate
between the two political branches and concluded that when there was a direct conflict, any
actual test of power is likely to depend on the imperatives of events and contemporary
imponderables.

COMMERCE CLAUSE

To see if a commerce clause question:

If Congress has acted, does it have the power it claims? Check for intended purposes of federal statute.

Rational basis test – Modern CC – permits federal regulation of any activity that Congress reasonably concludes
has a substantial effect on interstate commerce.

Gibbons v. Ogden 1824 MARSHALL

The Court held that the state cannot regulate commerce among the states, while Congress is regulating
it.

o Marshall gave an expansive meaning to "commerce" defining it as every species of commercial

intercourse which concern more states than one
o Congress, pursuant to the CC, had enacted a constitutionally valid law, regulating the same
subject matter as the NY act, and that therefore the federal act controlled under the supremacy
clause
o Marshall appears to have believed that the state and federal governments possessed very
different powers over interstate commerce. When each government (state and federal) exercises
a power, neither is exercising the power of the other. But, when a State proceeds to regulate
commerce among the several states, it is exercising the very power that is granted to Congress,
and is doing the very thing which Congress is authorized to do.

Following Gibbons, the Court developed a view of the CC which contrasted greatly with Marshall’s view. For
example, the court narrowly interpreted the CC by distinguishing commerce form "mining" and "manufacturing" an
d refused to allow Congress to regulate the latter activities, even if those activities products subsequently entered
interstate commerce. According to the Court, these activities were inherently local in nature and protected by the
10th amendment.

US v. Lopez 1995 GARWOOD

Federal laws prohibiting firearm possession all require the government to prove connection to commerce.
The legislative history of the Gun-Free School Zones Act makes no mention of the impact on commerce
of firearms in school, and thus, unlike prior gun control acts, fails to honor the traditional division of
functions between the states and the federal government.

o Unconstitutional extension of congressional power under the CC.

o Under our federal system of government, the framework w/in which Congress may legislate is
defined by the powers granted to congress and enumerated in the CON. Although the CON
allows for a strong national government, it nonetheless reserves for the states those powers not
delegated to Congress.
o Although the 10th amendment does not define the limits of the CC power, it assumes that the
reach of that power is not unlimited.
o Congress intended to make the possession of a firearm near a school a federal crime, but it has
not shown that such an exercise of power is within the CC.
o The Court did not attempt to define the boundary between the states’ sovereignty and the federal
commerce power; rather the court opined, the states and the people must rely on their
representatives in Congress to draw the line fairly. – political process. The court agrees with
Garcia view that Congress can be trusted with defining the boundary between the 10th
amendment and the CC.
o United States v. Bass – relying on this case, the court refused to interpret the statute to cover
the mere possession of firearms with no connection to commerce because Congress did not
clearly state its intention to change the federal-state balance.

Since the beginning of CC expansion during the New Deal Era, the courts have consistently relied on
congressional findings, legislative history, and the wording of statutes themselves to determine whether Congress
had a rational basis for finding a commerce nexus.

Congressional regulation for the public welfare

 Champion v. Ames (Lottery Case) 1903 – Harlan

Regardless of its motives for doing so, Congress may regulate any article being transported interstate.
The CC delegates complete control to the federal government over the facilities of inter state commerce

o Congress must have the power to protect public morals and health in situations in which the
states can not. (Harlan disapproved of lotteries)
o Gibbons – if Congress exceeded the scope of powers granted to it, the courts had a duty to
invalidate the statute. However, if Congress acted within its power but the action was unwise or
injurious, the political process would take over.
o Hipolite Egg Co. v. US; Hoke v. US;

Regulation and the national economy

NLRB v. Jones & Laughlin Steel 1937

The court sustained the National Labor Relations Act, claiming it constitutional as applied.

o Congressional power is plenary and may be exerted to protect interstate commerce no matter
what the source o f the dangers which threatens it. The Court abandoned the distinction between
national commerce and local commerce. Although activities may be intrastate, 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 or obstructions, Congress cannot be denied
the power to exercise that control.
o The CC gave Congress the power to protect interstate commerce from burdens and obstructions
whenever they might arise. The Commerce power, therefore, can support congressional control
over intrastate activities if the purpose is to protect and facilitate interstate commerce.
o The stoppage of Jones & Laughlin’s activities due to labor unrest would have an immediate and
perhaps catastrophic effect on interstate commerce
o Carter v. Carter Coal Co

Since Jones, the Court has deferred to Congress’s express or implied findings that regulated activities
have a substantial economic effect whenever Congress has a rational basis for such findings.

US v. Darby 1941

All aspects of the Fair Labor Standards Act were properly within the scope of the commerce power. The
Court rejected the view of the 10th Amendment as an independent restriction on congressional power.

o Overruled Hammer stating that employers with lower labor standards possess an unfair
advantage in interstate competition, and only the national government can deal with the problem.
o Congress may regulate any article which is transported interstate and may exercise that power by
choosing any means reasonably adapted to achieving that end. Complete prohibition of
production under substandard working conditions was a means reasonably adapted to keeping
article produced under substandard conditions out of interstate commerce.
o The manufacture of goods under nonconforming conditions was detrimental to the interstate
commerce of goods manufactured under better conditions – the Act is thus directed at the
suppression of a method or kind of competition in interstate commerce which it has in effect
condemned as unfair.
o Jones – the FLSA regulated activities had a substantial effect on interstate commerce and
therefore, was constitutional.

Wickard v. Filburn 1942

There was sufficient evidence for Congress to conclude that home consumed wheat substantially
influenced price and market conditions by competing with wheat in commerce. Congress has the power to
 regulate local activity if, taken as a class and in the aggregate, such activities substantially affect
interstate commerce.

o broad interpretation of the CC

o The distinction between direct and indirect economic effects was discarded in favor of the
substantial effect on interstate commerce standard.
o The Court admitted that the wheat was trivial by itself but the aggregate effect of home-
consumed wheat was far from trivial.
o Even though the AAA regulated a purely intrastate activity, Congress could CON reach that local
activity because the separate states were incompetent to protect the wheat supply
o Jones & Laughlin; Darby – congress may regulate any activity having a substantial effect on
interstate commerce.
o Gibbons – Marshall intended for power under the CC to be absolute w/in its sphere, subject only
to the CON affirmative prohibitions on the exercise of federal authority. The Court relied on the
expansive interpretation of the CC in Gibbons to hold that federal power under the CC is plenary.

After 1945, the Court had provided Congress with 2 broad CC interpretations:

1. Based on the holdings of Champion, Hipolite, and Hoke – Congress could regulate any article being
transported interstate
2. Based on the holdings of Jones & Laughlin, Darby, and Wickard – Congress could regulate any activity
that had a substantial effect on interstate commerce or the national economy. The only limitation was that
the means employed must b e reasonably related to the congressional objective.

Regulation for local welfare

Heart of Atlanta Motel v. US 1964

Every aspect of the Civil Rights Act was within congressional commerce power, giving Congress virtually
unlimited power to regulate activity under the CC. Interstate commerce was affected by the motel’s
discriminatory policies.

o Civil Rights Act of 1964 – racial discrimination

o While the commerce power was being pushed to the extreme, the Court implicitly limited its
deference to Congress by requiring findings or legislative history indicating a nexus between the
regulated activity and interstate commerce – blacks were unable to obtain lodging when traveled
nationwide and that discriminatory practices impaired and discouraged travel by blacks.
o Katzenbach – congressional legislation, after Darby, was no longer restricted to the commercial
sphere – it was applied to Civil Rights.

Perez v. US 1971

There was a rational basis for the congressional finding that loan sharking had a substantial effect on
interstate commerce.

o In regulating a class of activities, Congress should consider the aggregate effect on interstate
commerce
o Congress used commerce power to bring certain local crimes within the jurisdiction of federal law
enforcement agencies.
o STEWART: dissent – all criminal activity when aggregated affects interstate commerce. The
Framers did not intend the CC to empower the national government to enact federal criminal laws
over purely local matters.

Test for determining the constitutionality of federal regulation enacted as an exercise of the commerce power:
 1. When Congress determines that an activity affects interstate commerce, the only limitation on its
regulatory power is that there be a rational basis for that finding.
2. If there is a rational basis, the court then inquires whether the means are reasonably adapted to the
permitted end.

As a practical matter, the rational basis test, in combination with the aggregate effect principle, brings all activities
within the scope of the commerce power.

The national league of cities

The National League of Cities v. Usery

The Congress adopted the position that the 10th amendment operated as an independent bar to
congressional regulation of states and their political subdivisions.

o The amendment, insofar as it regulated the states as states and displaced the states’ freedom to
structure traditional government operations, was beyond the scope of Congress’ commerce
power.
o Congressional regulations cannot operate to directly displace the States’ freedom to structure
integral operation in the areas of traditional governmental functions
o In Hodel, in order to succeed, a claim that congressional commerce power legislation is invalid
under the reasoning in National League, it must satisfy each of three requirements:

1. there must be a showing that the challenged statute regulates "states as states"
2. the federal regulation must address matters that are indisputably attributes of state
sovereignty
3. it must be apparent that the States’ compliance with the federal law would directly
impair their ability to structure integral operations in areas of traditional government
functions

o Overruled by Garcia v. San Antonio in 1985

DORMANT CC:

The S/C has used the dormant CC to invalidate a myriad of state regulations affecting interstate
commerce. Despite the extension of the commerce power, Congress has left numerous areas free from
federal statutory regulation. The grant of power to Congress enables Congress to override state
regulation of interstate commerce, and if necessary, to preempt state regulation of commerce under the
supremacy clause. Absent such affirmative congressional action, the states are free to regulate interstate
commerce.

o The CC in its dormant state is thought to invalidate state regulation, although it is accepted that
Congress may choose to overrule the judicial invalidation of a particular state regulation by
statutorily authorizing it
o Pike v. Bruce Church – Although Congress has failed to enact legislation preempting state
commerce regulation, the S/C nevertheless has invalidated state regulation as a violation of the
CC.
o Southern Pacific v. Arizona – Congress has undoubted power to permit the states to regulate
the commerce in a manner which would otherwise not be permissible. The states could neither
impede the "free flow" of commerce nor regulate elements of interstate commerce requiring
national uniformity.
o Maine v. Taylor – State statute banning importation of baitfish upheld as serving legitimate local
purpose of preventing parasitic infection of native fish.
 o South-Central Timber – state statute requiring timber from state lands to be partially processed
in-state unconstitutionally burdened commerce.

Garcia v. San Antonio Metropolitan Transit Authority Blackmun

The 10th amendment was no longer an independent limitation on federal regulation to state activity. The
only limit on the federal commerce power is found in the procedural safeguards of the political process
provided through state participation in federal governmental action.

State immunity from federal regulation based on a judicial determination of traditional or integral functions
would stifle state legislative experimentation and evolution of policy because innovation might comprise
intergovernmental immunity.

o The attempt in National League to draw the boundaries of state regulatory immunity in terms of
traditional government function is unworkable
o Departed from traditional CON interpretation when it declared the political system a primary
restraint on federal power.
o The political process was a built-in restraint on Congress, but nowhere in the CON was the power
of the people invoked to restrict the exercise of congressional power. Instead, the built-in restraint
is the CON separation of powers.
o The court relied on the states’ political influence in Congress to justify the effective exclusion of
judicial review in interfederal constitutional disputes
o Blackmun cited 2 reasons for overruling National League:

1. The "traditional governmental function test" adopted by the court, whereby the Court
attempted to define substantively areas traditionally controlled by the states, was too
difficult to apply
2. More importantly, the test was inconsistent with established principles of federalism and
had no CON basis.

o Dissent – O’Connor: predicted the revitalization of the 10th amendment – she authored the
opinion in NY v. US which reinstated the 10th amendment as a substantive limit on congressional
power to regulate interstate commerce

New York v. United States 1992 O’CONNOR

The 10th amendment confirms that the power of the Federal government is subject to limits that may, in a
given instance, reserve the power to the states.

o an attempt to reconcile post-New Deal concepts of national power with the existence of legal
limitation on that power derived from federalism
o The scope of the federal government’s authority with respect to the states has changed over
years, but the constitutional structure underlying and limiting that authority has not.

Garcia seemed to remove the Court altogether from the business of protecting state autonomy. The
Courts decision in NY, which established that there are at least some means that are unavailable to
Congress to exert control over state governments, may limit the sweeping breadth of Garcia, even if there
are no traditional functions reserved wholly to the states.

Ability to provide for local diversity

Kassel v. Consolidated Freightways Corp 1980

The law substantially burdened interstate commerce without significantly increasing safety.
 o The burden on commerce was not outweighed by the significance of he countervailing state
interest
o Brennan – concur – the statute was not motivated by safety concerns at all; the actual purpose
was protectionist and per se unconstitutional.
o Barnwell Brothers – some issues are best left to state determinations.

Bibb v. Navajo Freight Lines 1959

The court can invalidate a state regulation as a violation of the CC even though Congress has failed to
enact legislation preempting state commerce regulation

o The Court has done so when it has found that such regulation either discriminates against out-
of-state interests or unduly burdens the free flow of commerce among the states.
o The statute was invalid under the dormant CC, noting that the state did not attempt to rebut the
showing that the statute in question severely burdens interstate commerce despite the fact that
the statute was clearly nondiscriminatory

PRIVILEGES AND IMMUNITIES CLAUSE

The Citizens of each State shall be entitled to all P & I of Citizens in the several States. The P & I Clause was
designed to promote interstate harmony and cooperation in order to prevent the dissolution of the Union. Each
state was to be constitutionally prohibited from placing out-of-state citizens at a disadvantage.

United Bldg. & Constr. Trades v. Mayor of Camden 1984 Rehnquist

The P & I Clause imposes a direct restraint on state action in the interests of interstate harmony.

o The CC acts as an implied restraint upon state regulatory powers. Such powers must give way
before the superior authority of Congress to legislate on (or leave unregulated) matters involving
interstate commerce. The P & I Clause imposes a direct restraint on state action in the interests
of interstate harmony. It is discrimination against out-of-state residents on matters of fundamental
concern which triggers the Clause, not regulation affecting interstate commerce.

The constitutional exercise of federal police power

Since 1937, Congress has exercised its power over interstate commerce to promote and protect the public health,
welfare, and morality. The S/C has held that as long as such regulations of commerce do not infringe upon any
CON prohibitions, they are within Congress’ commerce power, regardless of their motive or purpose.

EXECUTIVE PRIVILEGE

Executive Privilege can be defined broadly as the presidential prerogative to withhold information or records from
either Congress or the judiciary. The doctrine allows the President acting in the public interest, the discretion to
withhold information acquired through or necessary to the faithful execution of the law. Executive privilege
becomes a tool for cutting off congressional inquiry into issues over which the legislative and executive
departments disagree.

o A reading of Article II reveals no explicit reference to authority vested in the chief executive to
withhold or protect information which accrues through the performance of his duties.
o CON justification for executive privilege relies upon separation of powers theory which accords
each of the three branches of government supremacy within its assigned province, free from
interference by either of the other two branches.

US v Nixon 1974
 The Court upheld the fragmentation of authority over a pending prosecution within the executive, rejecting
the Presidents claim that he possessed exclusive CON authority to decide whether governmental
evidence needed in a pending prosecution should be supplied

o Stands for the proposition that appropriate exceptions to plenary executive branch control of
prosecution can be crafted, at least in situations presenting disabling conflicts of interest
o Separation of powers theory insulates the President from being compelled to disclose confidential
communications between himself and his advisors and subordinates.
o The presumptive privilege can be overborne by more important, competing CON values such as
the integrity of the judicial system, the due process rights of the criminally indicted, and first
amendment rights of speech and assembly.

Nixon v. Fitzgerald 1982

Immunity from damages liability is a functionally mandated incident of the presidency. The President,
judges, and prosecutors enjoy absolute immunity from tort damages for actions within the scope of their
official responsibility

o The President is entitled to absolute immunity from civil claims predicated on his official acts,
while presidential advisors are entitled only to qualified immunity. Absolute presidential immunity
rests upon the President’s unique CON status, distinct from that of other executive branch
officials, and the wide-ranging, broad-impact decision-making responsibilities the President
exercises.

INDEPENDENT COUNSEL AND THE CONSTITUTION

The Act directs the AG to conduct a preliminary investigation upon receipt of information sufficient to constitute
grounds to investigate whether a covered official has committed a serious federal crime. If the AG determines that
there are reasonable grounds to believe that further investigation is warranted, she must apply to a Special
Division of the Court, which consists of three judges, one of whom must be from the DC Circuit Court of Appeals,
for the appointment of independent counsel. If she concluded that there are no reasonable grounds to warrant
further investigation, she so notifies the Special Division and no appointment can be made. The AG may remove
the counsel for "good cause" and the Special Division may terminate the office on grounds that the investigation
has been substantially completed. Judicial review of the AG decision not to conduct a preliminary investigation is
barred. Although the Special Division may not overrule the AG determination, it may return the matter to the AG
for further explanation of the reasons for such determination.

o Appointments clause – authorizes the appointment of unspecified inferior Officers by the

President alone, the heads of departments, or courts because the Act calls for judicial
appointment of independent counsel, controversy surrounds whether they are inferior officers in
the CON sense.

-The S/C has held that inferior officers include any officers inferior to those specifically
mentioned in Article II as requiring nomination by the President and confirmation by the
senate. The IC is not listed in Article II and is inferior to the AG.

o The problem lies in the dual nature of the Atty. Generals role. On the one hand, she is the
nation’s chief law enforcement officer, expected to investigate and prosecute federal crimes
dispassionately. On the other, as the administration’s highest ranking legal advisor, she is
ordinarily a political and personal confidant of the President and his circle, providing advice on
both law and policy.
o Prosecution is traditionally classified as an executive function and therefore within the executive
power that Article II vests in the President. The CON command that the President take care that
the laws be faithfully executed has been thought to pl ace supervision of prosecution at the very
core of executive power. A powerful reason for allocating prosecution to the executive lies in the
purposes of the scheme of separation of powers: tyranny might ensue if legislators could both
define and prosecute crime, or if judges could both charge and adjudicate guilt.
 o The IC is an independent prosecutorial officer whose sole function is to investigate and, if
necessary, prosecute alleged illegalities perpetrated by high government officials.
o The statute has three mechanisms to guarantee the independence of IC. First, a court selects the
individuals who serve as IC. Second, the scope of the IC inquiries is defined by the court and the
conduct of their investigation is placed outside the direct control of the DOJ. Finally, IC, unlike
most other executive branch officials, are removable from office only for good cause and not at
the President’s will.
o Opponents of the independent counsel often imply that prosecutorial discretion is ordinarily
exercised under highly centralized control in the executive branch. 1) the Act deeply invades the
core executive responsibilities. It usurps the Presidents plenary power to faithfully execute the law
of the land, because it places unfettered prosecutorial power in an officer who need not answer to
the President or subsequently to the public. 2) the statutory requirement that the IC be appointed
by a special panel of judges violates the Presidents power to appoint federal officials. 3) the
provision providing for removal of the IC by the AG "for good cause" is an unconstitutional
prescription on the Presidents; unlimited power to remove executive officials.
o The court’s power to appoint and define inquiries of IC is a minimal intrusion into the executive’s
law enforcement authority, especially when compared to the powers retained by the executive
branch under the IC law. Only the AG can request appointment of an IC. The court cannot
appoint one without such a request and the AG decision in this matter is final and unreviewable
by any court or legislative body. Thus, there can be no IC unless the executive branch determines
there is a need for one.

Neither the courts nor Congress may control or influence the IC’s exercise of discretion once an
appointment is made. Thus, the IC is a truly independent entity. No branch of government loses power
which is CON committed to it, and all gain by confidence that a fair policing of the conduct of the highest
officials will occur.

Morrison v. Olson 1988

The Act that was found unconstitutional provides for the appointment of "special prosecutors"
independent of the Justice Department to investigate and prosecute serious crimes committed by high
officials in the executive branch.

o if the appointment of inferior officers were not restricted to their own branch, no principle limits
could be stated, so that the court could not be authorized to appoint the Secretary of State
o The IC was an inferior officer whose appointment could properly be invested in the judiciary.
Thus, the IC appointment provisions did not violate the appointments clause.

HOW THOSE WHO SEEK TO DERAIL IC BENEFIT FROM THESE CASES:

Chadha – Congress may only oversee or influence executive action by passing legislation. Executive
officials are otherwise free to carry out the law in keeping with their judgment about what the law in
question requires.

Bowsher – the CON does not contemplate an active role for Congress to execute the laws; it follows that
Congress cannot grant to an officer under its control what it does not possess.

-presents the model of separation of powers more accepted by those who seek to do away with
the IC: the fundamental necessity of maintaining each of the three general departments of
government entirely free for the control or coercive influence, direct or indirect, of either of the
others has often been stressed and is hardly open for serious question.

The Court has made it clear that a complete separation of powers is CON required. Going to court to
prosecute alleged criminal wrongdoing is an executive function, at the core of Article II responsibilities.
Because Congress has sought to alter the traditional role of AG in deciding when and whether to go to
court, the Act provision for the IC violates the separation of powers doctrine. Both Congress and the
courts would be usurping executive power; the courts in appointing the IC and Congress in placing
restraints on the AG prosecutorial discretion and in conditioning the IC removability.
 Problem with analysis: The Framers did not intend complete or absolute separation. The absence of an
explicit textual rule requiring complete separation is harmonious with the Framers efforts to insert a
system of checks and balances. The IC mechanism is different from legislative veto and congressional
removability of CG in one fundamental respect: Congress does not control the IC.

JUSTICIABILITY

Whether justiceability exists has most often turned on evaluating both the appropriateness of the issues for
decision by courts and the hardship of denying judicial relief

Specific categories:

o Standing – Standing focuses on the interest of the party who brings the action. For federal
courts, the parameters of standing are derived from Article III of the CON. While Article III does
not contain explicit "standing" requirements, that requirement has been defined through the S/C
interpretation of Article III’s case or controversy. Lack of standing defeats jurisdiction, even
though the issues tendered clearly would be justiciable in an action by a more directly affected
plaintiff. Standing questions have two parts: constitutional requirements and prudential
requirements.
o The elements of standing from the case or controversy requirement are:

1. P have suffered a concrete and particularized injury-in-fact that is actual

or imminent
2. injury is fairly traceable to the challenged action of D
3. A favorable decision by the court is likely to redress the P injuries.

1. Constitutional element: without an injury in fact, there is not case or controversy and hence no
federal court jurisdiction. In order to have a personal stake in the question, the prospective P
must be among those affected by the action. A generalized interest in a topic, no matter how
strong, cannot suffice for standing without injury. An injury in fact to the P provides the minimum
indicia of Article III standing. Nevertheless, the S/C has enumerated prudential limitations on
standing which Congress may eliminate by legislatively granting standing.
2. Prudential element: designed to meet the needs of the judiciary itself. Through the prudential
inquiry, the court determines whether the party is the appropriate one to assert the substantive
issue. Standing will be denied prudentially if the injury is a generalized grievance, if the P is
asserting the rights of third parties, or the injury is not within the "zone of interest" of the "relevant
statute"

o Some rulings reflect a refusal to exercise the judicial power even in cases within the reach of
Article III, invoking prudential principles for wise administration of the power.

Certain issues are not appropriate for judicial resolution. The reluctance for courts to
engage themselves in the resolution of such issues stems in part from the restriction on
judicial power to cases and controversies and in part from policy considerations.

o Types of plaintiffs seeking judicial review: Statutory and nonstatutory review

1. those with complaints analogous to a CL cause of action

2. those granted the right of appeal by being among the parties classified as "aggrieved" within the
particular statute

o Injury – The S/C has rooted its Article II jurisprudence firmly in the particularized injury standard
– it is the bedrock principle of modern standing law, an essential element of case or controversy.
 Determining injury is not a straight-forward factual inquiry. It is based on a normative judgment
about what ought to constitute a judicially cognizable injury in the particular context.

-does not have to be economic; it can also include damage to P aesthetic or

environmental well being.

-characterizing an injury either broadly or narrowly may manipulate the causation and
redress ability requirements to reach a seemingly sensible result linguistically.

o Redress ability – if court action is not likely to redress the P individual injuries (that is, injury that
goes beyond harm to the general public), then the P have lost a personal stake in the outcome of
the case, and the case becomes moot
o Standing includes the questions of:
 advisory opinions
 mootness
 ripeness – developed to identify appropriate occasions for judicial action
 political question - separation of powers –
o Mootness – integrally related to standing; mootness is the doctrine of standing set in a time
frame. The requisite personal interest that must exist at the commencement of litigation
(standing) must continue throughout its existence (mootness) . Ensures that the federal courts
address only issues that they can successfully resolve or redress.
o Ripeness – its basic rationale is to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over administrative policies,
and also to protect the agencies from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by challenging parties.
 Exception: capable of repetition yet evading review
o In determining whether an action is ripe for judicial review, must inquire: the evaluation of "both
fitness of the issues for judicial decision and the hardship to the parties of withholding court
considerations
o Justiciability and its various categories mean that a court will not decide a question unless the
nature of the action challenged, the kind of injury inflicted, and the relationship between the
parties are such that judicial determination is consonant with what was, generally speaking the
business of the courts – the jurisdiction of federal courts can be invoked only under
circumstances which constitute a "case or controversy"
o Case or controversy:
o Controversy – a justiciable controversy must be one that is appropriate for judicial determination
– distinguished from a difference or dispute or a hypothetical or abstract character; from one that
is academic or moot. The controversy must be definite and concrete, touching the legal relations
of the parties having adverse legal interests. It must be a real and substantial controversy
admitting of specific relief through a decree of conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts. Where there is such a
concrete case admitting of an immediate and definitive determination of the legal rights of the
parties in an adversary proceeding upon the facts alleged, the judicial function may be
appropriately exercised through the adjudication of the rights of the litigants may not require the
award of process or the payment of damages.
o Justiciability identifies appropriate occasions for judicial action, both as a matter of defining the
limits of the judicial power created by Article III of the CON and as a matter of justifying refusals to
exercise the power even in cases w/in reach of Article III. Whether jusiticiability exists has most
often turned on evaluating both the appropriateness of the issues for decision by courts and the
hardship of denying judicial relief.

-Concern with the appropriateness of the issues for decision is most obviously reflected
in doctrines defining political and administrative questions. The same concern also
affects decisions on standing, ripeness, mootness, and political question.

o The judicial power of the federal courts is constitutionally restricted to "cases and controversies."
Those words limit the business of federal courts to questions presented in an adversary context
and in a form historically viewed as capable of resolution through the judicial process. The also
define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal
courts will not intrude into areas committed to the other branches of government.
 o Justiciability rulings often are attributed to the limits on judicial power created by Article III of the
CON, reflecting the premise that this power is not an unconditioned authority to determine the
constitutionality of legislative or executive acts.
o Other rulings reflect a refusal to exercise the judicial power even in cases w/in reach of Article III,
invoking prudential principles for wise administration of the power.
o Most of the concern with limiting judicial power through justiciability concepts arises from the role
of courts in determining the CON of congressional action or the legality of executive action.

-Marbury: the justification for judicial review is that it arises from the duty of a court to
determine the law applicable to a case properly before it for decision.

Standing and citizen suits:

Requiring a P to show injury in fact to obtain standing could have a very restrictive effect on citizen
access to the courts, depending on what types of interests are recognized as capable of being injured in
fact.

Lujan – Prior to Lujan, although the Court had recognized that Article III imposed a barrier on Congress’
power to create standing, it had not required the showing of an injury other than a violation of the statute
containing the citizen suit provision.

Terry Campbell v. Louisiana 1988 KENNEDY

Issue: Whether a white criminal D has standing to object to discrimination against black persons
in the selection of grand jurors?

Held: The Court finds that he has the requisite standing to raise equal protection and due
process claims.

PH: A grand jury indicted P on count of second degree murder of another white man. P filed to
quash the indictment on the grounds the grand jury was constituted in violation of his equal
protection and due process rights under the 14th amendment and in violation of the 6th
amendment fair-cross section requirement. Evidence of racial discrimination is that from 1976-
1993 no black person served as a grand jury foreperson in the town, even though more than 20%
of registered voters were black. The trial judged denied P motion stating that he lacked standing
to complain where are the forepersons were white. P was then convicted and he renewed his
challenge to the grand jury foreperson selection procedures in a motion for a new trial, which was
denied. The Court of Appeals reversed stating P had standing and remanded. The LA S/C
reversed holding that the role of the grand jury foreman in LA appears to be ministerial such that
any discrimination has little, if any, effect on the D due process right of fundamental fairness.

1. D claims that the discrimination shapes the composition of the jury itself; it is more than a
simple discrimination claim. In the federal system, the foreperson is from the existing jurors
without any change to the grand juries composition. In LA, t he judge selects the foreperson
form the grand jury venire before the remaining members of the grand jury have been chosen
by lot. As a result, when the judge selected the foreperson, he also selected one member of
the grand jury outside of the drawing system used to compose the balance of the body.
2. In Powers v. Ohio a white D was found to have standing to challenge racial
discrimination against black persons in the use of preemptory challenges.

In order to assert rights of a third-party for own standing:

1. The D suffered an "injury in fact"

2. he had a close relationship with excluded jurors
3. there was some hindrance to the excluded jurors asserting their own rights
 1. Injury - Discrimination at the jury selection phase casts doubt on the integrity of the judicial process and
places the fairness of a criminal proceeding in doubt.

-strikes at the fundamental values of judicial system because the grand jury is a central component of the
criminal justice process

-The grand Jury acts as a vital check against the wrongful exercise of power by the state and its
prosecutors if the process is tainted by discrimination, doubt is cast over the fairness of all subsequent
decisions

2. Relationship – a common interest in eliminating discrimination

-and because conviction may be overturned

3. Hindrance – because of the cost/benefit, a juror dismissed because of race will probably leave the
courtroom with no incentive to vindicate own rights.

6) Due Process – A D has standing to litigate whether his conviction was procured by means or procedures
which contravene due process.

The D suggests that there is no harm when a single grand juror is selected based on racial prejudice because the
discrimination is invisible to the grand jurors on the panel.

-counter: the impartiality of the judge would be called into question. The D says that there is no
connection to the excluded class of jurors

-counter: P intends to prove exclusion, not to assert the third-party rights

Dissent in part/concur in part: THOMAS & SCALIA

Powers third-party doctrines was misguided - how can the rights of blacks excluded form jury service be
vindicated by letting a white murder go free? In addition, the doctrine does not apply to the case at bar. The court,
in recognizing that the D could not claim that his own equal protection rights had been denied, held that the D had
standing to assert the equal protection rights of venirement excluded from the jury – the three criteria for standing
had been met.

-using Powers is a misguided effort to remedy a general societal wrong by using the CON to regulate the
traditionally discretionary exercise of preemptory challenges.

-rather than helping to ensure the fairness of criminal trials, serves only to undercut that fairness by
emphasizing the rights of excluded jurors at the expense of the traditional protections accorded criminal D
of all races

Injury in fact: failure to demonstrate that the alleged discrimination had any effect on the outcome of the
trial. Although the court held that the D suffered a cognizable injury because racial discrimination in jury
selection casts doubt on the integrity of the judicial process, there was no injury in fact. Additionally, there
is no reason why a violation of third party rights to serve on a jury should be grounds for reversal when
other third party rights are not.

Close relationship: There is no close relationship between a white defendant and black veniremen.
Whether black venirement wish to serve on a particular jury, they do not share the white D interest in
obtaining reversal of his conviction. The court fails to identify the specific rights holders.

Hindrances: Cost is insufficient to justify third party standing.

The cases use to support the majority are factually different then the facts here. Even if discriminatory, the
judge selection of a single member of the grand jury could hardly constitute an "overt wrong" that would
effect the remainder of t he grand jury proceedings.
Lujan v. Defenders of Wildlife 1992 SCALIA

In Lujan, the Court for the first time analyzed congressionally imposed standing in light of the separation of
powers doctrine and determined that it was beyond Congress’s power to create sweeping citizen suit provisions
that granted standing to the public at large. The case dealt with access to the judiciary for review of agency action.

-the mood of the court was to decrease access to the judiciary. The Court believes that a judge should not freely
make law but should allow the politically accountable legislature and executive to handle majority interests –
restricting standing may enforce not only the idea of separation of powers, but also sovereign immunity. It may
also implicate the nondelegation duties.

Issue: Whether respondents here, plaintiffs below, have standing to seek judicial review of the rule (standing)?
Whether there was a final agency action subject to review (ripeness)?

Held: (1) P did not assert sufficiently imminent injury to have standing, and (2) P claimed injury was not
redressable

-respondents did not demonstrate that they suffered injury in fact. Assuming they established that
funded activities abroad threatened certain species, they failed to show that one or more of their members
would thereby be directly affected apart from the members special interest in the subject.

-an intent to revisit project sites at some indefinite future time, at which time they will presumably be
denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an
imminent injury.

Justice Scalia insisted on a clear and unequivocal injury in fact that would distinguish P and thus prove that
judicial intervention on their behalf was justified. This requires a showing that the P were harmed more than the
rest of us thus enabling a basis for concern that the majority is suppressing or ignoring the rights of a minority that
wants protection. Scalia also took the APA reference to an "agency action" as a precursor to judicial review and
elevated it to the point that agency action now presents an overriding requirement of particularity that must be met
before a court can intervene.

PH: The case involves a challenge to a rule promulgated by the Sec. of the Interior interpreting §7 of the
Endangered Species Act in such fashion as to render it applicable only to actions w/in the US or on the high seas.
The Court of appeals erred in holding that respondents had standing on the grounds that the statute’s citizen-suit
provision confers on all persons the right to file suit to challenge a secretary’s failure to follow the proper
consultative procedure.

1. As to the parties invoking federal jurisdiction, respondents bear the burden of showing standing by
establishing that they have suffered injury in fact, i.e. a concrete and particularized, actual or imminent
invasion, of a legally protected interest. To survive summary judgment motion, they must set forth by
affidavit or other evidence specific facts to support their claim. Standing is particularly difficult to show
here, since third parties, rather then the respondents, are the object of the Government action or
inaction to which respondent objects.

-The impact on P is plainly undifferentiated and common to all members of the public

2. Whether the public interest in proper administration of the laws can be converted into an individual right
by a statute that denominates it as such, and that permits all citizens, who suffer not distinctive/concrete
harm, to sue.

-when Congress passes an Act empowering administrative agencies to carry on governmental

activities, the power of those agencies is circumscribed by the authority granted. This permits the
 courts to participate in law enforcement entrusted to administrative bodies only to the extent
necessary to protect justiciable individual rights against administrative action fairly beyond
granted powers.

Case or Controversy – A P claiming only a generally available grievance about government, unconnected with a
threatened concrete interest of his own, does not state an Article III case or controversy.

Separation of powers: Vindicating the public interest is the function of the Congress and Chief Executive. To
allow that interest to be converted into an individual right by a statute denominating it as such and permitting all
citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from
the President to the courts the Chief Executive’s most important constitutional duty to "take care that the Laws be
faithfully executed" Article II, §3.

-The CON central mechanism of separation of powers depends largely upon common understanding of
what activities are appropriate to legislatures, to executives and courts

-Article III refers to cases and controversies that are of the justiciable sort, to be appropriately resolved by
the judiciary – the doctrine of standing

The parties complaint is that officials of the executive department of the government are executing and will
execute an act of Congress asserted to be unconstitutional. To do so would be not to decide a judicial
controversy, but to assume a position of authority over the governmental acts of another and co-equal
department, an authority which plainly the Court does not possess.

Whether the court were to act on their own, or at the invitation of Congress, in ignoring the Courts concrete injury
requirement described in cases, they would be discarding a principle fundamental to the separate and distinct
CON role of the third branch – one of the essential elements that identifies those cases and controversies that are
the business of the courts rather than that of the political branches. The CON as interpreted in Lujan limited the
power of Congress to create citizen suit standing. Scalia aligns with the belief that standing and ripeness are
designed to keep courts in the realm of deciding individualized rights in particularized settings. The doctrines are
used to prevent what he would term governance by the judiciary.

Standing – though some of its elements express merely prudential considerations that are part of the judicial self
government, the core component of standing is an essential and unchanging part of the case-or-controversy
requirement of Article III.

The irreducible CON minimum of standing contains three elements:

1. P must have suffered an injury in fact – an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.
(particularized – injury must affect P in a personal and individual way)
2. There must be a causal connection between the injury and the conduct complained of – the injury
has to be fairly traceable to the challenged action of the D, and not the result of an independent
action of some third party not before the court.
3. it must be likely as opposed to merely speculative, that the injury will be redressed by a favorable
decision

-"Zone of interest test" : Designed to look at the relationship between the alleged harm and the statutes
purpose posed no barrier; the environmental interests claimed were exactly the type of interests both
NEPA and FLPMA were to protect. Generally, bystanders should not have standing. Close examination of
congressional intent under a revitalized "zone of interest" test will restrict standing to those who are either
the regulated or the primary beneficiaries of a regulated statute.

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that
must be proved in order to establish standing depends considerably upon whether P is himself an object of the
action at issue. When a P asserted injury arises for the governments allegedly unlawful regulation/lack of
regulation of someone else, much more is needed. Causation and redress ability ordinarily hinge on the response
of the regulated third party to the government action/inaction. The existence of one or more of the essential
elements of standing depends on the unfettered choices made by independent actors not before the courts and
whose exercise of broad and legitimate discretion the courts cannot presume either to control of to predict and it
becomes burden of P to adduce facts showing that those choices have been or will be made in such a manner as
to produce causation and permit redressabilty of injury.

Scalia argued that the distinct and palpable injury standard should be used not only to limit the justiciability of
generalized CON claims, but also to curb the power of Congress to grand standing. The law of standing should be
employed to restrict courts to their traditional undemocratic role of protecting minorities against the imposition of
the majority, and to exclude them from the even more undemocratic role of prescribing how the other two
branches should function in order to serve the interest of the majority itself. Even the creation of "concrete"
statutory rights, therefore, might not suffice to mark out a subgroup of the body politic requiring judicial
protection.

Under Scalia’s view, classifying a statute ascertains who would have standing. For the NEPA and environmental
concerns, Congress may have intended to give standing to everyone impacted. He doubted that Congress always
would have meant to make other l argue universes of persons private AG simply because of their concern with a
statute’s generalized benefits. Therefore, the statute is of the type so that there are direct and immediate
beneficiaries and not the more generalized indirect beneficiaries would have standing. Even if the indirect
beneficiaries have interests within the disputed acts purpose, they should rely on those interests which their
claims derive for judicial enforcement.

Standing claim - Injury: The lack of consultation w/ respect to certain funded activities abroad increases the rate
of extinction and the desire to use or observe an animal species is undeniably a cognizable interest for purposes
of standing

-Injury in fact test requires more that an injury to a cognizable interest: "some-day" intentions without
concrete plans, do not support a finding of the actual or imminent injury that cases require

-although Imminence is an elastic concept, it cannot be stretched beyond its purpose, which is to ensure
that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending.

-it goes beyond the limit and into pure speculation to say that anyone who observes or works with an
endangered species, anywhere in the world, is appreciably harmed by a single project, affecting some
portion of that species with which he has not more specific connection.

-The Court found that the type of injury alleged, namely environmental and aesthetic harm, could be
cognizable, but there was no injury in fact to the members

-"procedural injury" due to the citizen-suit provision. This is not a case where P are seeking to enforce a
procedural requirement the disregard of which could impair a separate concrete interest of theirs.

-the person who has been accorded a procedural right to protect his concrete interests can assert that
right without meeting all the normal standards for redress ability and immediacy.

Ripeness:

-To Scalia, judicial review must be deferred until a concrete action is taken which would apply the
regulation in a manner that would harm or threaten harm to the Federation. The need for a concrete act,
which is essentially a ripeness requirement, may not be an easy test for beneficiaries of agency action to
meet. Scalia therefore ignores the immediacy of harm that the court of appeals recognized.

-Unless Congress specifically provides for earlier review, a regulation cannot be judicially reviewed until
concrete effects are felt.

Redress ability:

-Suits challenging, not specifically identifiable government violations of law, but the particular programs
agencies establish to carry out their legal obligations are, even when premised on allegations of several
instances of violation of law, rarely if ever appropriate for federal-court adjudication
 -Since the agencies funding the projects were not parties to the case, the DC could accord relief only
against the Secretary. But, this would not remedy respondents alleged injury unless the funding agencies
were bound by the Secretaries regulation, which it is deemed they are not.

-even if the DC could resolve the issue of the Secretaries authority as a necessary part of the standing
inquiry, this would still not have remedies respondents alleged injury because it would not be binding on
the agencies. Redress of the only injury in fact respondents complain of requires action (termination of
funding until consultation) by the individual funding agencies; and any relief the DC could have provided
in this suit against the Secretary was not likely to produce that action.

-A further impediment to redress ability is the fact that the agencies generally supply only a fraction of the
funding for a foreign project. Respondents have produced nothing to indicate that the projects they have
named will either be suspended or do less harm to listed species if that fraction is eliminated. It is entirely
conjectural whether the non-agency activity that affects respondents will be altered or affected by the
agency activity they seek to achieve.

Concur in part: KENNEDY AND SOUTER – The respondents have not demonstrated a concrete injury sufficient
to support standing. Congress has the power to define injuries and articulate chains of causation that will give rise
to a case or controversy where none have existed before. Congress must at the very least identify the injury it
seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The concrete injury
requirement preserves the vitality of the adversarial process by assuring both that the parties before the court
have an actual, as opposed to professed, stake in the outcome, and that the legal question presented will be
resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.

Concur on judgment: STEVENS – agree with the meaning of the act that it is not intended to include foreign
countries, but do not agree with Courts conclusion that respondents lack standing because the threatened injury
to their interest in protecting the environment and studying endangered species is not imminent. The likelihood
that respondents will be injured by the destruction of the endangered species is not speculative. If generally
interested in preservation and an intent to study or observe, the injury will occur as soon as the animals are
destroyed.

Dissent: BLACKMUN & OCONNOR – The court used the wrong standard in denying summary judgment. A
reasonable finder of fact could conclude, not only on statement of intent to return, but on past visits as well as
professional backgrounds, that it was likely there would be a return trip, therefore satisfying the actual or
immanent injury standard. This case differs from other cases in which the imminence of harm turned largely on
the affirmative actions of third parties beyond a P control. Petitioner has officially and publicly taken the position
that his regulations regarding consultation under the Act are binding on action agencies. The majority cannot be
saying that procedural injuries as a class are necessarily insufficient for purposes of Article III standing. Most
governmental conduct can be classified as procedural. The principle effect of foreclosing judicial enforcement of
such procedures is to transfer power into the hands of the Executive at the expense – not of the courts – but of
Congress, from which that power originates and emanates. It is hoped over time the Court will acknowledge that
some classes of procedural duties are so enmeshed with the prevention of a substantive concrete harm that an
individual P may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural
duty. In all events, the separation of powers analysis does not turn on the labeling of an activity as substantive as
opposed to procedural. There is no room for a per se rule or presumption excluding injuries labeled procedural in
nature.

Analysis: The outcome of this case did not change traditional standing doctrine, nor did it create too onerous a
barrier to judicial access. It did place a substantial limitation on the scope of citizen suits which Congress may
provide. For the first time, the court explicitly held that Congress was unable to legislatively remove the
requirement of injury in fact.

It only directly requires that the P employ specificity when expressing use of the particular land affected by
agency action. This would enable the P to be counted among those with an injury in fact and therefore entitled to
standing. Is there an is sue of ripeness? The court appears to be involved with a hypothetical – determinations of
the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a
concrete case involves too remote and abstract and inquiry for the proper exercise of the judicial function.

Lujan requires P to delineate harm that is both specific and immediate. The dual requirements may make it
difficult for those seeking system-wide relief, namely across-the-board protection of wildlife and natural resources.
This decision reflects Scalia’s deep-rooted belief in the nature of the judicial role and the requirements of the
separation of powers.

Warth v. Seldin

P brought suit against town and members of board claiming that town’s zoning ordinance effectively
excluded persons of low and moderate income from living in the town, in contravention of P constitutional
rights and in violation of the Civil rights statute.

Held: whether the rules of standing are considered as aspects of the CON requirement that a P must
make out a case or controversy w/in the meaning of Article III, or as prudential limitations on the courts’
role in resolving disputes involving generalized grievances, or third parties legal rights or interests, none
of the P met the threshold requirement of such rules that to have standing a complainant must clearly
allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the
exercise of the court’s remedial powers.

o Relief must be guaranteed by requested remedy.

o The question of standing involves both CON limitations on federal-court
jurisdiction and prudential limitations on its exercise
o The Court narrowly characterized the P injury claim as actually obtaining
housing, rather than as a broader interest being given the opportunity to obtain housing
(which would have been redressible). The Court also refused to consider P alleged
interest in interracial association as capable of sustaining injury in fact.
o Here the P rely on little more than the remote possibility, unsubstantiated by
allegations of fact, that their situation might have been better had respondents acted
otherwise, and might improve were the courts to afford relief.
o The claim falls squarely within the prudential standing rule that normally bars
litigants from asserting rights or legal interests of other in order to obtain relief from injury
to themselves.
o Prudential considerations strongly counsel against according individuals, where
the complaint is that they have been harmed indirectly by the exclusion of others, thus
attempting, in the absence of a showing of any exception allowing such a claim, to raise
the putative rights of third parties.
o Apart from the minimal CON mandates for standing, the Court has recognized
other limits on the class of persons who may invoke the courts’ decisional and remedial
powers.

1. when the asserted harm is a generalized grievance shared in substantially equal

measures by all or a large class of citizens, that harm alone normally does not
warrant exercise of jurisdiction
2. even when the P has alleged injury sufficient to meet the case or controversy
requirement, the Court has held that the P generally must assert his own legal
rights and interests, and cannot rest his claim to relief on the legal rights or
interests of third parties.

o P must allege and show that they personally have been injured, not that the
injury has been suffered by other, unidentified members of the class to which they belong
and which they purport to represent.

Dissent: The protest against the creation of the segregated community expresses the desire of their
members to live in a desegregated community – a desire which gives standing to sue under the Civil
Rights Act. As the allegations show, these petitioners have alleged precisely what the cases require – that
because of the exclusionary practices of respondents, they cannot live in Penfield and have suffered
harm. These parties, if their allegations are proved, certainly have a personal stake in the outcome of this
controversy, and the Court’s conclusion otherwise is only a conclusion that this controversy may not be
litigated in federal court.
Allen v. Wright 1984

The S/C did not permit a group of parents to challenge an IRS policy that the parents claimed allowed
private non profit schools which discriminated against African-Americans to retain tax-exempt status.

o According to the S/C, the injury to the plaintiffs’ rights to attend desegregated
schools was not fairly traceable to the challenged action. Requiring IRS to lift tax exempt
status from racially discriminatory private schools may not achieve desired goal of public
school desegregation.
o The Court applied an extra level of analysis because the activities of third parties
in response to IRS policies would actually be required for a concrete remedy. No one
could predict whether these third party actions would assist the P. Standing, therefore,
could be denied because a favorable ruling would not redress the harm.
o Separation of powers – only the President has the power to "take care that the
laws by faithfully executed."

Bennett v. Spear 1997 SCALIA

Issue: Whether petitioners, who have competing economic and other interests in the Project, have
standing to seek judicial review of the biological opinion under the citizen suit provision of the ESA?

Held: The petitioners have standing to seek judicial review. The judicially imposed prudential zone of
interests that normally serve as a limitation to standing does not do so under the citizen suit provision
because Congress intended the provision to apply to any person.

PH: The district court dismissed complaint of petitioners concluding that they lacked standing because
they asserted recreational, aesthetic and commercial interests that did not fall within the zone of interests
sought to be protected by the ESA . The Court of Appeals affirmed stating that only P alleging an interest
in the preservation of endangered species fall w/in the zone of interests protected; it limits the class of
persons who may obtain judicial review under the citizen-suit provision o f the ESA. Neither court
addressed whether petitioners satisfied the d the zone of interest test to be dispositive.

o Prudential standing principles are judicially self-imposed limits on exercise of

federal jurisdiction requiring that plaintiff’s grievance arguably fall w/in zone of interests
protected or regulated by statutory provision or CON guarantee invoke d in suit, but
unlike CON standing requirements, prudential standing principles can be modified or
abrogated by Congress
o In addition to the standing requirements of Article III, the federal judiciary has
also adhered to a set of prudential principles that bear on the question of standing. These
judicially self-imposed limits on the exercise of federal jurisdiction are founded in concern
about the proper and properly limited role of the courts in a democratic society.
o The S/C said the Court of Appeals erred in using the zone-of-interest test
because, since it is a prudential standing requirement of general application that applies
unless expressly negated by Congress, by providing that any person may commence a
civil suit, negates the test.
o Zone of interest test – requires that a P’s grievance arguably fall within the
Zone of interests protected or regulated by the statutory provision or CON guarantee
invoked in the suit – limits the class of persons who may obtain judicial review not only
under the Act, but also under the ESA’s citizen-suit provision.
 1. Among these prudential requirements is that a P grievance must arguably fall w/in the
zone of interests protected or regulated by the statutory provision or CON guarantee invoked in
the suit.
2. The Court finds that the ESA’s citizen suit provision negates the zone-of-interest test (or
expands the zone of interests). The first operative portion of the provision, "any person may
commence a civil suit" is an authorization of remarkable breadth when compared with the
language Congress ordinarily uses. The Courts readiness to take the term "any person" at face
value is greatly augmented by the consideration:

- the overall subject matter of this legislation is the environment ( a matter common to think all
persons have an interest)

1. The Court cites Trafficante which deals with discriminatory housing practices – the
subject of the legislation makes the intent to permit enforcement by everyman even more
plausible.
2. Although Bennett gives more persons standing to allow their interests, including
economic interests, to be addressed in court, the case does nothing to guarantee whether
economic claims will prevail.

Differences:

- Campbell was based on a protected class; Lujan allowed suit by any person
- Lujan marked a significant departure by the S/C from the notion that Congress could create
statutory standing in the public at large.

Similarities:

Injury component

-in Lujan, the injury standard was particularly ill-suited to provide a comprehensible barrier
against the expansive use of statutory standing. The weakness of the standard is in the nature of
the injury determination itself – injury to what?

Warth and Campbell both dealt with racial segregation

- Warth: court found lack of racial integration no injury

- Campbell: court found racial discrimination on grand jury injurious

Bennett and Lujan: Similar fact patterns

CHIEF JUSTICE JOHN MARSHALL

Marshall played a significant role in constitutional interpretation and the development of the role of the S/C. Under
his leadership, the Court emerged as the principle guardian of the CON, supporter for individual rights, and the
ultimate arbitrator of legal conflicts within the federal system. During this era, CON supremacy, judicial
independence and dedication to the rule of law characterized the philosophy of the Court. His legacy was to
legitimize judicial review in a democratic republic and preserve the courts preeminent role in CON interpretation.

Marshall regarded the CON as the fundamental law of a nation in which the people retained ultimate political
control in a federal system that allocated authority between the states and the federal government. Marshall
construed the CON as a special kind of statute, aware that his principle objective was to interpret it as the
fundamental law of the nation and not from the short term perspective of political expediency. He understood the
CON as a document that reflected the will of the people to protect individual liberty through limitations upon both
state and federal governments. Marshall believed in a CON democracy in which limited government was essential
to the protection of individual rights.

While Marshall recognized that the coordinate branches of the federal government and the state courts
themselves could review the CON of government actions he believed the S/C had the solemn duty of preserving
the CON and its inherent values from the whims of transient democratic majorities and the political factions which
controlled them. The Court alone had the authority to decide cases from which there could be no appeal. Marshall
readily sustained federal court jurisdiction in cases arising under the CON, federal laws, or the nations treaties,
and in particular, insisted that the S/C’s authority to review the CON of state laws was an essential component of
the federal system.

Marbury v. Madison; McCulloch v. Maryland – it was popular sovereignty that compelled the S/C to
invalidate federal and state laws that conflicted with the CON. The Marshall court employed judicial
review to preserve the separation of powers on the national level to prevent the centrifugal forces of the
states from destroying the country in the early years. The decisions about judicial review not only
asserted the independence of the federal judiciary to interpret the CON but re cognized limits upon
federal courts based upon separation of powers and the constraints on federalism.

o Marbury – Marshall clearly perceived the controversy over Madison’s refusal to deliver Marbury’s
commission as a political one. He also realized that the legal remedy sought by Marbury, a writ of
mandamus issued by the Court as an exercise of its original jurisdiction, required the Court to
review the CON of the federal law that created this remedy. This Marshall considered within the
province of the Court.

Marshall articulated the CL distinction between the judicial function and those of political
branches of government when he remarked: "the province of the court is solely to decide on the
rights of individuals, not to inquire how the executive, or executive officers perform duties in which
they have discretion."

-Marshall made the opinion more difficult and longer than would have thought necessary
– He invents the long opinion

-Marshall uses the CON to draw distinctions - "he has already demonstrated that the
CON is law because he has already demonstrated that it is"

-This case is a political play and Marshall plays his game with legal reasoning to achieve
political results. It works because he conspicuously conceals the act.

Two rabbits out of the hat:

1. Because the commission was signed by the President and sealed by the Sec. of State,
the document is Marbury’s. To withhold the commission is an act deemed by the court not
warranted by law, but violative of a vested right.
2. But, this case cannot be seen before this court. It was not an appeal, but a case for
original jurisdiction. To issue a writ is in effect the same as to sustain an original action.

The Court will extend Marbury v. Madison to cases where state law can be determined to be
unconstitutional or inconsistent with federal statutes.

o McCulloch – The court broadly interpreted the necessary and proper clause in sustaining the
CON of the US Bank. Marshall interpreted this CON provision as he would a statute, and used his
reasonable discretion as a judge to conclude that nothing in the CON precluded the federal
government from implementing its enumerated powers through implied means. "we must never
forget that it is a CON we are expounding" and explaining that the Court should exercise broad
discretion in construing Congress’ enumerated powers under the CON.

-Marshall says that Congress has the power to create a bank, even though it is not
enumerated in the CON.
 -The CON is a legal document and should expect only general categories – it is an
outline of the agenda in large general terms. Must develop a theory of interpretation that
will realize there are just a few general terms. The CON would become unreadable if put
everything in it.

-The power to tax is the power to destroy – it interferes with the government – can’t
draw the line between little tax and big tax

o Gibbons v. Ogden – Marshall expressly acknowledged that states could regulate purely local
commerce pursuant to their 10th amendment police powers even though the CON prohibited their
restriction of interstate commerce. Marshall refused to interpret the CC as conferring an exclusive
power upon the federal government to regulate commerce among the states because neither the
precise language of he CON nor its internal structure indicated the existence of such broad
authority. However, Marshall did not go so far as to rule that NY had concurrent power over
interstate commerce. Instead he simply held that because NY steamboat licensing law conflicted
with a federal act, CON supremacy required the court to in validate the local measures in order
to prevent the state from infringing upon national power.

-Marshall says we are all one and the CON was written so everyone can understand it –
it was written for the people

-"All America knows"

-Because Congress regulates interstate commerce, navigation includes things that begin
in one state and end in another. Therefore, it is within Congress’s contemplation under
the CC.

-Marshall defines "navigate" as the power to regulate – to proscribe a rule by which

commerce is governed

o Cherokee Nation v. Georgia – held that because Indian tribes were not foreign nations within
the meaning of CC, the Court lacked jurisdiction to hear their disputes with Georgia

-Marshall says S/C has no original jurisdiction because Indians not a foreign state; he
decides to avoid direct confrontation with Jackson and Georgia – he includes the last
paragraph and brings about the dissent which is designed to provide the outline for the
next case where he does rule for the Cherokees

-From the prospective of the State, the Indians are foreign. To the US they are not. The
words of the CON make the US perspective right.

-This case turns out not to be the protection of State’s rights, an assertion of the
standpoint of the US, Marshall uses this to show that the CON is a document that can
decide cases

-Like Marbury: original jurisdiction problem, political foreground, Marshall’s opinion is that
P has rights that can’t be enforced