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INTRODUCTION
A. WHAT IS CONGRESS’S AUTHORITY TO REGULATE “COMMERCE AMONG THE STATES?”

United States v. Lopez

JUDICIAL REVIEW
MARBURY v. MADISON
“formalized notion of judicial review in this case”
HOLDING & DECISION:
1. YES. The Supreme Court has the power, implied from Article 6 Section 2 of the Constitution, to
review acts of Congress and if they are repugnant then the court can declare them void.
2. Court must consider 3 questions
o Has the applicant a right to the commission he demands?
 Yes. When a commission has been signed by the president, the appointment is
made; and the commission is complete when the seal of the US has been affixed
to it by the Secretary of State.
 To withhold the commission is an act deemed by the court as against the law,
and violating a vested legal right.
o If he has a right and it has been violated, do the laws of this country afford him a
remedy?
 The government of the US is a govt. of laws, not men,.
 Whether the legality of an act of the head of a department is examinable by the
court depends on the nature of the act
 The president, bound by these laws is given certain political powers by
the constitution, laws he can use at his discretion.
 To aid him in his duties, he is authorized to appoint certain officers to
carry out his orders.
 Their acts as officers are his acts and are never subject to examination
by courts.
 HOWEVER, when these officers are given by law specific duties on which
individual rights depend, any individual injured by a breach of duty may
resort to the law for remedy.
 The question whether Marbury’s right had vested or not must be left up
to the courts to decide.
o Is he entitled to the remedy for which he applies for? This depends on:
 The nature of the Writ applied for
 Madison meets the criteria of the Writ
o He is an officer of the US and Marbury is without any other
redress.
 Marbury had a right to the commission and by Madison refusing not to
deliver it he violated that right.
 This is a plain case of a Mandamus.

What Marbury v. Madison Does:

1. Creates authority for judicial review of executive actions.
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a. Distinction between areas concerning individual rights (govt. duties) and political rights
where they can exercise their discretion.
2. Article 3 is the ceiling of federal court jurisdiction
a. Precise Holding: Congress cannot expand the original jurisdiction of the Supreme Court.
3. Establishes the authority for judicial review of legislative acts.
a. Does this by establishing that the Judiciary Act of 1789 is unconstitutional
i. Which the court interprets as authorizing the Supreme Court to exercise
mandamus on original jurisdiction
3. Congress cannot increase the jurisdiction of the federal courts, article 3 is a ceiling not a floor
4. Court can review executive branch to determine its legality if they are ministerial acts,
discretionary acts do not qualify
5. Court can review legislative acts as well for constitutionality.

WEST Article AND THE PROGRESSIVE AND LIBERAL VIEW

Robin West Reading:

-don’t just accept the constitution as what’s best.
-maybe the 1st amendment is wrong…should we really protect hate speech?
-be critical of the constitution (she is speaking from the left, progressivism)

believes that the debate over the Constitution's meaning dominates scholarshp to the exclusion of a debate
over the Constitution's value. 2 Constitutional scholars, she surmises, ought to be asking whether the
Constitution is desirable as written. 3 Academics should scrutinize the Constitution for how broadly it
protects such values as free expression, self-actualization, and political debate, and whether protection of
those values is desirable. 4 As a progressive, West looks to the Constitution as a solvent of private power,
and finds it lacking. 5 She concludes, for example, that the Constitution fails to prevent private power from
restricting the equality and freedom of "subordinated peoples." 6

Does
the 1st amendment provide for goods values? Does it add to the social cohesion of society?

Progressives: committed to individuals leading autonomous, fulfilling lives

Difference between Progressives and Liberals

Liberals feel our greatest danger is an over oppressive state
Progressives feels that unjust concentrations of private power are the biggest danger.
-we must target these spheres and that will require state intervention.

Problems with constitution under progressive view:

1. It does not prohibit the abuse of private power that interferes with the equality of
subordinate people.
2. Constitution leaves untouched the very subordination that is ruining society.
a. No protection against Private racism, homophobia, homelessness
i. This relegates some to lead “lesser lives.”
3. Constitution actually protects the private spheres which enables this subordination.
a. Protects hate speech, pornography (subordination of women)
4. 2 issue: the 14th amendments protection of equality, rather than a limit on liberty
nd

impedes progressive progress.

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Constitution protects “negative liberty”

- refers to freedom from interference by other people
-negative liberty is protected at the cost of other positive forms of liberty that are necessary for
progressive change.

“Positive Liberty” is central to Progressivism

refers to having the power and resources to act to fulfill one's own potential, as opposed to negative
liberty, which refers to freedom from restraint. [1] Inherent to positive liberty is the idea that liberty is the
ability of citizens to participate in their government

AUTHORITY FOR JUDICIAL REVIEW OF STATE JUDGMENTS

The authority for judicial review of state court decisions was established in 2 decisions, Martin v. Hunter
and Cohens v. Virginia
 Martin v. Hunter
o Granted review and declared the authority to review state court judgments
o Justice Story’s Argument:
 Structure of the Constitution presumes that the Supreme Court may review
State Court decisions.
 Constitution gives Congress discretion to create lower federal courts, but if they
choose not to do so then the Supreme Court would be powerless to hear any
cases, except for the few that fall within its original jurisdiction…Unless it could
review state court cases.
 Cohens v. Virginia (lottery ticket case)
o Held: Supreme Court, in opinion by Justice Marshall, reaffirmed the constitutionality of
Section 25 of the Judiciary Act and the authority of the Supreme Court to review state
court judgments.
o Reasoning:
 Court emphasized that state courts often could not be trusted to adequately
protect federal rights because “in many states the judges are dependant for
office and for salary on the will of the legislature.”

LIMIT ON JUDICIAL AUTHORITY: INTERPRETATION OF THE CONSTITUTION…DEBATE BETWEEN

ORIGINALIST AND NON-ORIGINALISTS (pg 18)

IDEAS TO CONSIDER WHEN INTERPRETING THE CONSTITUTION:

-Think of broad ideas as we interpret:
Textualist: look no further than the text, that’s all the people ratified, didn’t ratify present or future
understanding of the text…going beyond that is beyond judges power (Justice Black was textualist).
Originalism: linked to textualism, not just look at text though, look to what the founders thought the
language would mean..
Traditionalist: look towards tradition, what has this country done for the past 200 years…this puts a spin
on what the constitution means
Constitutionalists: all this plays a role, but we must also look to how the values play out in today’s
changed world.
Process based argument: courts role is to enforce a fair and democratic process…can’t read substantive
values into the constitution, court can read fair procedural gestures into the constitution though.
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FEDERAL LEGISLATIVE POWER

McCULLOCH v. MARYLAND

Necessary and Proper Clause implementation…

 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 (article 1, section 8)”
o Constitution does not exclude incidental or implied powers
o Creating a bank was a means to execute a power expressly given to congress by the
constitution, all “necessary” means is that the method be convenient, useful or essential
This would transfer supremacy to the States!!
 If states may tax one instrument employed by the govt in the execution of its powers,
they may be able to tax all other instruments employed in the execution of its powers!

FEDERALIST 45

 However, they do not think about how much strength is required in a government to sustain
the union.
 There are many examples from ancient and modern confederacies that prove that the
individual members often betray the union. Since the states, under the U.S. Constitution, keep
a lot of power it is important to analyze whether enough checks have been placed on their
authority to hurt the union.
 The federal government serves to protect states from disputes with their neighbors, to grant
powers in the state governments and to provide the additional support of the people
 The federal government cannot run without the state governments. The state legislatures are
the ones to elect the President of the United States, and to select the state Senators. Each
branch of the federal government relies in these ways upon the state governments and will
feel dependence towards them.
 The powers granted to the federal government are few and specific and will be exercised
towards external parties
 Powers granted to the states are many and general and focused solely on internal affairs.
 The federal government will be the most important in times of war and danger, the state
government in times of peace and security. The more powerful the federal government is to
deal with war and danger, the less likely the will need to be most active.
 The proposed plan of government does not propose new powers, but a strengthening of the
original powers that were vested in it under the Articles of Confederation. The change does
not enlarge powers, just proposes a new way of administering those powers
 People are more likely to be more supportive of state governments, which are geographically
closer to them and in which they may have relatives or neighbors
 The state governments clearly have an advantage because the people are more attached to
them and the federal government depends on the states for elections. A local spirit will
inevitably control the members of Congress, and make them inclined to focus more on local
rather than national goals.
2 arguments in his federalist 45:
1. Must protect from external concerns
a. Bring states together because articles of confederation didn’t
2. State govts. Still retain essential powers
a. Responding
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COMMERCE POWER
Article 1, Section 8 “congress shall have the power…to regulate commerce with foreign nations and
among the several states”
 Authority for broad array of federal legislation

INITIAL ERA: GIBBONS DEFINES COMMERCE POWER

Gibbons v. Ogden

RULE:
 If a state law conflicts with a congressional act regulating commerce, the congressional act is
controlling.
FACT SUMMARY:
 Ogden, after acquiring a monopoly right from the state of NY to operate ships between NYC and
NJ, sought to enjoin Gibbons from operating his ships, licensed by the FEDERAL GOVT, between
the same points.
REASONING:
 Congress has been given all the power to regulate interstate commerce, although it is possible
for states to pass regulations that may affefct some activity associated with interstate
commerce.
o States in that case must base the regulation on some other source of power other than
commerce power (such as police power of the state).
 Regardless of the source of state power though, the state regulation MUST yield to federal law.
o This case: NY law conflicted with federal regulation dealing with interstate commerce
(navigable waters), so the NY law is not valid.

1890’s to 1937: Supreme Court during this era was deeply committed to laissez-faire, unregulated
economy. There was hostility to government economic regulation (limited federal commerce power)

US v. EC KNIGHT

RULE:
 The commerce clause does not empower congress to regulate manufacturing

FACTS:
 American Sugar Refining Company acquired several sugar refineries, giving it a nearly complete
control of the refining of sugar in the United states.
 Federal Govt. brought an antitrust action to set aside the acquisitions.

REASONING:
 Power to control manufacturing is secondary and incidental to the power to control commerce.
 “commerce succeeds to manufacture, and is not a part of it.”
 Manufacturing is not commerce, congress may not control a monopoly of manufacturing.

ANALYSIS:
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 During the laissez faire period, precommercial activities like mining, agriculture, and insurance
were not considered commerce.

WHAT DOES AMONG THE STATES MEAN?

HOUSTON EAST & WEST RAILWAY v. UNITED STATES

RULE:
 Congress has the power to regulate intrastate commerce when it impacts interstate commerce.
FACTS:
 Railroad freight rates for intrastate shipment were lower than for interstate shipment.
 The ICC finding that the lower intrastate rates discriminated against interstate commerce,
ordered that this price discrimination cease.
REASONING:
 Congress’s authority, which applies to instruments of interstate commerce, such as railroads in
this case, extends to intrastate activities of such intrastate commerce when those activities have
a “close and substantial relation” to interstate traffic.
 Whenever the interstate and intrastate activities of carriers are closely related, such that the
regulation of one affects the other, it is congress, not the state that has the final say.
 THUS, CONGRESS MAY CONTROL INTRASTATE COMMERCE TO PROTECT INTERSTATE
COMMERCE.
o “protective principle”

KEY DECISIONS CHANGING THE COMMERCE CLAUSE DOCTRINE

NLRB Jones, Darby, and Wickard overruled the earlier era of commerce clause decisions and expansively
defined the scope of congress’s commerce clause power.

NLRB JONES v. LAUGHLIN STEEL CORP

RULE:
 Under the commerce clause, Congress has the power to regulate any activity, even intrastate
production, if the activity has an appreciable effect, either direct or indirect, on interstate
commerce.
FACTS:
 A manufacturing company with subsidiaries in several states and nationwide sales, was charged
with unfair labor practice under the NLRA
 Board issued a cease and desist order to Jones to stop using coercive and discriminatory
practices to prevent union organization at 2 steel plants.
REASONING:
 Congress under the commerce clause has the power to regulate any activity, even intrastate
production, if the activity has an appreciable effect on interstate commerce.
 Controlling question is the effect on interstate commerce, not the source of the interference.
 If production were interrupted at one of the plants due to a labor dispute, the extensive
nationwide operations of Jones indicate that there would necessarily be an immediate effect on
interstate commerce
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US v. DARBY

RULE:
 Congress has the power to regulate the hours and wages of workers who are engaged in the
production of goods destined for interstate commerce and can prohibit the shipment of
interstate commerce of goods manufactured in violation of the wage and hour provisions.
FACTS:
 Darby was a lumber manufacturer, some of whose goods were later shipped in interstate
commerce
 He was indicted for violation of the wage and hour provisions of the Fair Labor Standards Act
and defended on the ground that as an intrastate producer he was not subject to federal
regulation.
REASONING:
 Although manufacturing itself is not interstate commerce, the shipment of goods across state
lines is interstate commerce and the prohibition of such shipment is a regulation of commerce.
 Congress has power to exclude from interstate commerce any article that it determines to be
injurious to public welfare, subject only to the specific provisions of the constitution.
o Congress determined that the employment of workers in substandard conditions is a
form of unfair competition injurious to interstate commerce, since the goods produced
will be lower priced than the goods produced under adequate conditions.
 This would spread the use of substandard conditions and truly affect commerce.
 ANALYSIS
o Congress has the power to exclude from interstate commerce harmful objects or
immoral activities
o This case extends the power to exclude articles produced under conditions that
congress considered harmful to the national welfare.
 Production of lumber was an intrastate activity, but it was part of an economic
process that led to the sale of lumber across state lines

WICKARD v. FILBURN

AGGREGATION PRINCIPLE: from this case we can consider aggregated situations to get to a national
scale…this aggregation principle is a very principle that has been established…greatly increases
congresses power, can now reach economically insignificant acts by looking at everyone combined.

FACTS:
 Appellee for many years owned and operated a small farm in Ohio….maintaining a herd of dairy
cattle, selling milk, raising poultry, and selling poultry and eggs.
 His practice was to raise a small acreage of winter wheat, sown in the fall and harvested in July.
o With the wheat he would sell a portion, feed part to the poultry and livestock on the
farm, use some in making flour for home consumption and keep the rest for the
following seeding.
 In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, there was an establishment
for the appellee’s 1941 crop of wheat acreage of an allotment of 11.1 acres which normally
yielded 20.1 bushels of wheat an acre.
o He was twice given notice of this, before his planting in the fall and harvesting in July.
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 HOWEVER, he ended up sowing 23 acres and harvested from the 11.9 acres of excess acreage
239 bushels
o And under Act this constituted a farm marketing excess, subject to a penalty of 49 cents
per bushel or $117.11 cents in all…

SCHEME OF AAC of 1938:

 Was to control the volume of wheat moving in interstate commerce to avoid surpluses and
shortages that would result in abnormally high or low prices which would obstruct commerce.
 Under the Act the Secretary of Agriculture would set a national acreage allotment for wheat
production, which would be divided into allotments for individual farms.

Appellee’s Argument:
 Congress does not have the power to do this under the Commerce Clause.
o COURT:
 This question would be easily answered under Darby because there the court
sustained the federal power to regulate production of goods for commerce
 PROBLEM: this Act extends federal regulation to production not intended in any
part for commerce but wholly for consumption on the farm
 Appellee: This is a regulation of production and consumption of wheat.
o These activities are beyond the reach of the commerce clause because they are “local in
character” and their effect on interstate commerce is at most “indirect.”

COURTS REASONING:
 Questions of the power of congress are not to be decided by any formula that would give force
to words such as “production” and “indirect.” At the expense of considering the actual effects of
the activity in question upon interstate commerce.
o Whether the subject of the regulation in question was “production” consumption” or
“marketing” is not a material purpose for deciding the question of federal power.

*EVEN if activity is local and not regarded as commerce it may still be reach by congress if it exerts a
“substantial economic effect on interstate commerce”

IN REACHING THE DECISION ON THE CASE AT BAR:

 Parties have stipulated a summary of the economics of the wheat industry.
o Commerce among the states in wheat is large and important
o The effect of consumption of homegrown wheat on interstate commerce is due to the
fact that it constitutes the most variable factor in the disappearance of the wheat crop.
o Consumption on the farm where grown appears to vary in an amount greater than 20%
of the average production.
 Total amount consumed as food doesn’t vary much and the use for seed is
relatively constant.

Maintaining the price of wheat by government regulation is effectively accomplished by sustaining or

increasing the demand as by limiting the supply.
 The effect of this statute is to restrict the amount which may be produced for market and the
extent to which one may forestall selling their wheat on the market when its most convenient.
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o Though appellee’s own contribution to the demand for wheat may be trivial by itself, its
not enough to remove him from the scope of federal regulation
 His contribution, coupled with many others is far from trivial.

WELL ESTABLISHED:
 The power to regulate commerce includes the power to regulate the prices of the commodities
within that commerce.
 PRIMARY PURPOSE OF ACT: to increase the market price of wheat and to limit the volume that
could affect the market.
 Home consumed wheat could have a substantial influence on price and market conditions
o As the market price of wheat climbs, farmers will sell more of their crop that was
intended for home consumption causing the price to drop.
o Even if the wheat is never sold it has a substantial effect on interstate commerce
because it reduces the demand for wheat (these farmers will buy less for themselves
when they have a surplus)

MEANING OF COMMERCE AMONG THE STATES: civil rights laws, regulatory laws, and criminal laws.

CIVIL RIGHTS LAWS

 Civil Rights Act of 1964: prohibits private employment discrimination based on race, gender, or
religion and forbids racial discrimination by places of public accommodation such as hotels and
restaurants.
 Congress enacted this legislation under its commerce clause power
 Section 5 only allowed congress to regulate government conduct and therefore could not
regulate private behavior under the 14 th amendment.
o So congress chose the commerce clause for its authority

HEART OF ATL MOTEL v. UNITED STATES

RULE:
 Congress, under the commerce clause, may regulate business local in scope, if their business
activities have some impact on interstate commerce.
FACTS:
 Heart of ATL Motel which operated a single Hotel in downtown Atlanta brought suit seeking
declaration of the Civil Rights Act as unconstitutional because it was against a local business.
REASONING:
 That a particular business is local in character does not impact congress’s ability to regulate it,
provided that the business in some manner impacts interstate commerce.
 Here, congress found that racial discrimination in public lodging had a deleterious effect on
interstate movement of persons and goods, a conclusion that it could rationally make.
 As long as valid commercial motivation for a law exists, moral concerns are irrelevant.
 Only issue is that the means chosen must be reasonably adapted to the end permitted by the
constitution.
 ANALYSIS: this case has been argued to make the commerce clause power so broad it is beyond
the intention of the framers.
COURT:
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 “if it is interstate commerce that feels the pinch, it does not matter how local the operation
which applies the squeeze.”
 THUS, the power of Congress to promote interstate commerce also includes the power to
regulate local incidents
o Including local activities in both state of origin and destination
o WHICH MIGHT HAVE A SUBSTANTIAL AND HARMFUL EFFECT ON COMMERCE!

KATZENBACH v. McCLUNG

RULE:
 Although an activity is local and may not be regarded as commerce, it may still be reached by
congress if it “exerts a substantial economic effect on interstate commerce.”
FACTS:
 Ollies BBQ refused sit-down service to Blacks. The lower court found that a substantial portion
of the food served in the restaurant had moved in interstate commerce.
REASONING:
 Although an individual defendant’s own effect on commerce may be slight, if their contribution
taken together with that of many others similarly situated is “substantial,” then the individual’s
activity may be regulated.
 Although the amount of food served at Ollie’s may be insignificant when compared with the
amount of food transported in interstate commerce and although Ollie’s may appear to be local,
congress may still regulate it if there is a rational basis for its finding that the Civil Rights Act to
be necessary to protection of commerce.
 Congress did not make any formal findings as to the effect upon commerce of discrimination in
restaurants, but did conduct prolonged hearings on the Act and the record is full of testimony of
the burdens placed on commerce by discriminating in restaurants.
 Rational basis: had a direct effect on travel by blacks, diminished spending by blacks, sold less
food in interstate commerce.

REGULATORY LAWS

HODEL v. Indiana

 Court upheld a federal law that regulated strip mining and required reclamation of strip mined
land
 COURT:
o This law was within the scope of congress’ Commerce Clause authority and described
the power in expansive terms:
 Court may only invalidate legislation enacted under the Commerce Clause when
it is clear that there is no “rational basis” for a congressional finding that the
regulated activity affects interstate commerce;
 OR, that there is no reasonable connection between the regulatory means
selected and the asserted ends.”
 NOT all justices Agreed with this broad definition of the Commerce power!
o Rehnquist:
 “it would be a mistake to conclude that congress’ power to regulate is
unlimited”
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 “some activities may be so private or local in nature that they may not be in
commerce”
 Court asserts that all there needs to be is a “rational basis” for finding that the
regulated activity affects interstate commerce
 *there must instead be a showing that the regulated activity has a
“substantial effect” on that commerce.”
 Notes: land is purely local, they still can extend to this…
CRIMINAL LAW: SEE LOPEZ (loansharking case)

1990’s to ????...NARROWING OF THE COMMERCE POWER AND REVIVAL OF THE 10 TH AMENDMENT AS A

CONSTRAINT ON CONGRESS.
 1995 in Lopez the Supreme Court for the 1st time in 60 years found a federal law to exceed
Congress’s Commerce Clause authority.
 In 2000 the Court reaffirmed Lopez in US v. Morrison.
 In 1992 additionally, in NY v. US and in 1997 Printz v. US, the court again used the 10 th
amendment to protect state governments from federal encroachments.
o All of these decisions limiting the scope of congress’s commerce clause power were 5-4
rulings.
o There has not been any decisions concerning the 10 th or commerce clause since Justices
Roberts and Alito replaced Rehnquist and O’Conner (who both were in the majority for
limiting power)

US v. LOPEZ
1. Charged with TX state law
2. Next day, state charges dismissed, federal agents charged him with violating the Gun-Free
School Zones Act of 1990
a. District Court in bench trial found him guilty
i. Sentenced to 6 months and 2 years probation
ii. "a constitutional exercise of Congress' well defined power to regulate activities
in and affecting commerce, and the `business' of elementary, middle and high
schools . . . affects interstate commerce.”
th
3. Appealed to 5 Circuit
a. Reversed and Remanded
i. "section 922(q), in the full reach of its terms, is invalid as beyond the power of
Congress[5] under the Commerce Clause."
4. Govt. petitioned for Supreme Court Review
a. This is now where the case is at.

REASONING
1. Constitution creates a federal govt. of enumerated powers
a. A healthy balance of power between state and fed govt. will reduce the risk of
tyranny.
2. Reviewed history of Commerce Clause decisions
a. Jones, Darby and Wickard: ushered in era that greatly expanded the authority of
congress under commerce clause.
i. Occurred because of changes in the way biz was carried out, enterprises
were more national than local now.
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3. These decisions may have expanded power under the commerce clause, but also
confirm there are limitations.
a. Jones case: warned that scope of interstate commerce must be considered in
light of the dual system of govt.
i. Can’t embrace effects upon interstate commerce that are indirect, this
would obliterate distinction between what is national and what is local.
b. Since then the court has adopted the strategy of determining whether a
“rational basis existed,” if a regulated activity sufficiently effected Interstate
commerce.
4. 3 broad categories of activity that congress may regulate under its commerce power
a. Congress may regulate the use of channels in interstate commerce
i. Darby: couldn’t send lumber interstate, violated labor standards
b. Congress is empowered to regulate and protect instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities
i. Darby, Heart of ATL
c. Congress’s commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce
i. From this case, court concludes it must “substantially affect” commerce

NOW Congress’s power in light of this framework to enact Section 922(q):

1. First 2 categories are irrelevant to analysis
o If 922 is to be sustained it must be under the 3 rd category of substantially affecting
interstate commerce
2. Court has upheld a wide variety of Acts regulating “intrastate” economic activity where it has
“substantially affected” interstate commerce
o Ex. Hodel: coal mining, Perez: loansharking”
o These cases establish a pattern
 Where “economic” activity substantially affects interstate commerce, legislation
regulating that activity will be upheld
3. Section 922 is a “criminal statute”
o Has nothing to do with commerce or economic enterprise.
o Not an essential part of larger regulation of economic activity that could be undercut
o CANNOT be part of cases where the activities arise out of an aggregated commercial
activity that would substantially affect interstate commerce
4. Contains no jurisdictional element which would ensure through a case by case inquiry that the
firearm possession in question affects interstate commerce
-no requirement to show this gun moved in interstate commerce, if it did we would
have a gun that moved in interstate commerce…we don’t have a channel, instrumentality, or a
thing in interstate commerce…left within the 3 rd rung
o US v Bass: court required an additional nexus to interstate commerce
o Unlike Bass, 922 has no element that will limit its reach
5. There are no congressional findings concerning the effect on interstate commerce
o This is not required but it helps the court evaluate whether it substantially effects
interstate commerce

Govt’s Argument:
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 Possession of firearm in school zone does indeed substantially effect interstate commerce
o Results in violent crime which affects the national economy in 2 ways:
 1st: costs of violent crime are substantial, effects economy through mechanism
of insurance
 2nd: violent crime reduces the willingness of individuals to travel to areas
perceived to be unsafe (heart of ATL argument)
 Guns in school also propose a substantial threat to the education process.
 This results in less productive citizenry

COURT’S RESPONSE
 Cost of Crime Reasoning:
o This could allow the govt to regulate ALL violent crime as well as any crime that might
relate to interstate activity
 National Productivity
o This would allow congress to regulate any activity it found was related to economic
productivity of individual citizens
 Under these theories there seem to be no limitation on Congress’s Power!
 There is always going to be legal uncertainty under the Commerce Clause
o Constitution mandates this uncertainty by not giving congress plenary police powers
that would allow any type of legislation.
HOLDING:
The 1990 Federal Gun-Free School Zones Act exceeded Congress’s Commerce Clause regulatory power.
*possession of a gun in a local school zone is in no sense an economic activity that might substantially
affect any sort of interstate commerce.
*Court is unwilling to pile inference upon inference to reach a substantial effect on interstate
commerce.

DECISION:
1. Federal Govt. is one of limited, enumerated powers.
2. Since the 1930’s the Commerce Clause has been the source of most of Congress’s legislative
power.
a. This clause is not a general grant of police power though!
3. A law passed under this clause must relate to:
a. “an activity having a substantial effect on interstate commerce.”
i. Act neither regulates a commercial activity nor contains a requirement that the
possession be connected in any way to interstate commerce.
ii. In this case, the regulated activity (carrying a gun to school) has no such effect.
iii. This is purely a “local matter.”
iv. If one is willing to accept a lengthy series of inferences and assumptions, any
activity may affect interstate commerce
b. PROBLEM
i. If concept of limited Govt. is to have any meaning, Congress’s legislative power
must be cut off somewhere.
1. That point is where the regulated activity does not substantially affect
interstate commerce
a. That point has been passed in this case!
 14

CONCURRENCES

Kennedy
1. Only with great care court should intervene in matters relating to the commerce clause
a. It is a matter best left to the political sectors of Govt.
b. Must respect decisions of our elected officials
2. This exercise of power upsets the balance of power between the states and national Govt.
a. Court intervention in this case is proper.
 History of commerce clause decisions contains 2 lessons of relevance to this case:
o The imprecision of content based boundaries used to define limits of the clause
o Stare decisis operates with great force to counsel the court in not calling into question
the principles now in place respecting congressional power to regulate.
 Statute hear upsets the federal balance to a degree that renders it unconstitutional
o There is no commercial aspect in this case
o This area is one of local concern
 Interference of these dimensions occurs here, it is well established that education is a traditional
concern of the state
o Court has a duty to ensure the federal-state balance is not destroyed
o Though it is unwise to allow carrying a gun in school, we must allow the states to
continue to be laboratories for experimentation where solutions are unclear.
 Statute before us forecloses the State from experimenting and exercising its own judgment.
o “there are over 100,000 elementary and secondary schools in the US, each of these now
has a federal zone extending 1,000 ft. beyond the boundaries of the property”
 “Absent a stronger commercial connection which is essential to the commerce clause, this
interference upsets the balance of power.

Thomas
1. The “substantial effects test” is a New Deal innovation that goes far beyond the original intent of
the Framers.
a. They had a much narrower view of what commerce could be regulated.
2. This grants Congress something approaching general police power, a result that is clearly at
odds with the 10th amendment.
 Writes because case law has drifted from the original understanding of commerce clause.
o Must find that balance between recent decisions and original understanding
 Constitution leaves issues such as the one in question to individual states, absent affects on
interstate commerce.
 MUST reexamine the “substantial effects” test
o Interjecting a modern sense of commerce into the constitution generates significant
textual and structural problems.
 Ex. Can’t replace commerce with different enterprise such as manufacturing.
 Manufacturing involves the production of goods; commerce
encompasses traffic of such articles.
o Commerce clause mentions nothing about “substantial effects”
 Article 1 section 8 would be surplusage if congress had the authority over
matters that “substantially affect” commerce.
 Power we have given congress has swallowed Art. 1 sect. 8!
 15

o If we are going to accept the substantial effects test, why not apply it to every other
power of the federal govt.
o Substantial effects test gives congress a police power over nation
o Aggregation principle is clever, but has no stopping point

DISSENT

Stevens
1. The education of our youth has a major impact on the national economy and is a proper subject
for Commerce clause regulation
 Guns are articles of commerce and can be used to restrain commerce
o Directly affects commerce

Souter
2. Majority’s approach today is a step backward towards the excessive judicial activism that
characterized judicial review of the congressional enactments during the first part of the century
 We must respect congress if there exists a rational basis for their finding
 There is really no distinction between commercial and noncommercial, its just like the
old distinction between direct and indirect
 “reflects the centuries end, not its beginning.”

Breyer
3. True Question to Answer:
a. “Whether Congress could have a ‘Rational Basis’ for enacting the statute.
i. Is there a rational basis for finding a connection between gun-related school
violence and interstate commerce? YES.
ii. 2 reasons Congress could have found that gun related violence near the
classroom poses a serious economic threat:
1. Leads to poorly educated workers that must work low paying jobs
2. With lack of well educated workforce, business opportunities are likely
to diminish for the community.
4. In determining whether a regulated activity has a significant impact on interstate commerce, it is
necessary to consider not a single example of the regulated activity, but rather its cumulative
effects of all similar instances of the conduct.
a. It is clear that the cumulative impact of the possession of weapons by students on
campus will, over time, have a significant impact on the national economy.

 Statute falls well within the scope of commerce power as this court has understood in the past.
 TO reach this decision, Breyer applies 3 basic principles of commerce clause interpretation:
o The power to regulate commerce encompasses local activities so long they substantially
affect interstate commerce
o In determining whether a local activity will have a significant impact on interstate
commerce, the court needs to apply the aggregation principle.
o Congress must be given a degree of leeway in determining the factual connection
between regulated activity and interstate commerce
 QUESTION before the COURT is NOT whether the regulated activity affected commerce, BUT
“whether congress could have a rational basis for so concluding”
 16

o Numerous studies inside and outside of govt. make clear that congress had a reasonable
basis for making this connection
 To hold this statute constitutional does not obliterate distinction between national and local:
o 1st : this statute is aimed at curbing a particularly acute threat to the educational process
o There is evidence of the immediate connection between education and the national
economic well-being.
 Majority’s holding creates 3 problems:
o Runs contrary to modern supreme court cases….court has upheld congressional actions
despite connections to interstate activity that are less significant than school violence
o Court feels it can justify its decision by making a distinction between “commercial” and
“noncommercial”
 This approach fails to heed the courts earlier warning not to turn questions of
the power of congress upon formulas that would give controlling force to
nomenclature and foreclose consideration of the actual effects of the activity
o It threatens legal uncertainty in an area of law that was thought to be settled.
 Congress has enacted many statutes using the words “affecting commerce” to
define their scope.

UNITED STATES v. MORRISON

FACTS:
 Brzonkala enrolled at Virginia Tech in the fall of 1994
 In September of that year she met Morrison and Crawford who were students and football
players at VT
 Brzonkala claimed that within 30 minutes of meeting Morrison and Crawford they assaulted and
repeatedly raped her.
 B filede a complaint with VT’s judicial committee who found insufficient evidence to punish
Crawford, but found M guilty of sexual assault and sentenced him to immediate suspension for
2 semesters.

B’s Contention:
 Seeks to sustain that section 13981 as a regulation of activity that substantially affects interstate
commerce.
o Focuses on fact that gender motivated violence occurs all over

COURT:
 In lopez the court held it was a criminal statute and had nothing to do with commerce or any
sort of economic enterprise
 B and J. Souter downplay the role that economic nature of the regulated activity plays in the
commerce clause analysis.
 Important considerations from Lopez
o BUT in Lopez the noneconomic, criminal nature of the conduct at issue was central do
the decision in the case.
o The statute in Lopez contained no express jurisdictional element that could limit the
reach of congress
o There were no congressional findings in Lopez regarding the effects upon interstate
commerce that gun possession in a school zone may have.
 17

o *FINALLY, the decision in Lopez RESTED on the fact that the link between gun
possession and a substantial effect on interstate commerce was attenuated.

With these principles underlying the commerce clause jurisprudence as reference points, the proper
conclusion to this case is clear: “Gender-motivated crimes of violence are not, in any sense of the phrase,
economic activity!”

*Thus far in our Nation’s history the cases have upheld Commerce Clause regulation of intrastate
activity only where that activity is economic in nature.

In contrast to Lopez, Section 13981 is supported by numerous findings regarding the impact of gender
motivated violence on victims and families.
 BUT the existence of congressional findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation.
o Lopez, “simply because Congress may conclude that a particular activity substantially
affects interstate commerce does not necessarily make it so.”
*Congress’ argument is weakened by the fact it relies so heavily on the method of making inference
upon inference.
 This style of reasoning that petitioners seek to use is the but-for causal chain from the initial
occurrence of the violent crime to every attenuated effect upon interstate commerce.
 PROBLEM WITH THIS METHOD
o This style of reasoning would allow congress to regulate any crime as long as the
nationwide, aggregated impact of that crime had substantial effects on employment,
production, transit or consumption.
o 2nd Point:
 If congress could regulate gender motivated violence it would be able to
regulate murders and rapes because gender motivated crime is merely a subset
of this crime and is certain to have a lesser economic impact.

HOLDING:
 Court rejects the argument that Congress may regulate noneconomic, violent criminal conduct
based solely on that conduct’s aggregate effect on interstate commerce
o Reinforces the lopez holding….need economic activity, if noneconomic then no luck.

CONCURRENCE
 The notion of a substantial effects test is inconsistent with Congress’ powers and early
Commerce Clause jurisprudence, perpetuating the federal governments view that the
commerce clause has no limits

DISSENT:
 The past cases stand for the following propositions:
o Congress has the power to legislate with regard to activity that, in the aggregate, has a
substantial effect on interstate commerce.
o The fact of the substantial effect is a question for congress in the first instance, and not
the courts.
o Here congress has assembled a mountain of data demonstrating the effects of violence
against woman on interstate commerce
 18

 In this case Congress HAS IN FACT amassed substantial findings to demonstrate

that such intrastate violence does have an effect on the instrumentalities of
commerce.

PIERCE COUNTY, WA v. GUILLEN

RULE:
 Congress’s commerce power authorizes legislation aimed to improve the safety of the channels
of interstate commerce.

FACTS:
 Beginning with the “Highway Safety Act of 1966” congress endeavored to improve the safety of
the nation’s highways by encouraging closer federal and state cooperation with respect to road
improvement projects.
 In doing so, Congress adopted several programs to assist the states in identifying highways in
need of improvements and in funding those improvements.
 Relevant to this case is the “Hazard Elimination Program”
o Provides state and local governments with funding to improve the most dangerous
sections of their roads
o To be eligible for funds under the program the state or local govt. must undertake a
thorough evaluation of its public roads
 After the adoption of the HEP the Secretary of Transportation reported to congress that the
states objected to the absence of any confidentiality with respect to their compliance under
section 152
o According to the report states feared that diligent reporting of hazardous roads would
open them up to liability for accidents that took place on those roads before the
improvements could be made.
 To address this the congress adopted 23 USC 409:
o Basically holds that any information collected by the states and turned over to the govt
is not subject to discovery or can be admitted into evidence in federal and state courts.

Guillen’s wife died in an car accident at the intersection of 168 th and B st in Pierce County, WA.
 Several months before the county had requested section 152 funding for this intersection and
was denied
 The county renewed its application for funding and was approved 3 weeks after the accident
occurred.

Counsel for Guillen sought to obtain from the County information about the accidents that had occurred
at that intersection.
 The county declined to provide this information asserting that it was protected by section 409.
 After this failed Guillen turned to the Washington courts
 Guillen then filed another suit asserting that the county had been negligent in failing to install
proper traffic controls at the intersection.
 In connection with the tort action Guillen served the county with interrogatories seeking
information about the intersection.
o The county refused to comply with the discovery request relying on section 409
 19

 Guillen successfully sought an order to compel and the county moved for discretionary appellate
review of the trial judges interlocutory order

COURT:
 Must consider whether section 409 is a proper exercise of Congress’ authority under the
constitution.
 WE CONCLUDE THAT IT IS
o Commerce clause gives Congress the authority to “regulate the use of the channels of
interstate commerce.” (lopez)
o In addition, under the commerce clause congress “is empowered to regulate and
protect the instrumentalities of interstate commerce
 Congress adopted section 152 to assist state and local govts in reducing hazardous conditions in
the Nation’s channels of commerce.
o This effort was impeded by the states reluctance to comply, stemming from the fear it
might open them up to liability concerning accidents on these roads.
o Congress was reasonable in believing that adopting a measure that would curb the
unforeseen side effect of information gathering would result in better efforts to collect
the relevant information

GONZALES v. RAICH
(this case is ground in principle from Wickard, and distinguished from Lopez and Morrison, seems to
have restored much of the gigantic breadth of the commerce clause power that existed before the
Lopez decision)

RULE:
 The commerce clause permits congress to criminalize local cultivation and medicinal use of
marijuana even if those uses otherwise comply with a state’s laws.
FACTS:
 2 sufferers of serious physical ailments sought to grow and use marijuana for medicinal
purposes as permitted by CA law.

ISSUE:
 Whether congress’s power to regulate interstate markets for medicinal substances
encompasses the portions of those markets that are supplied with drugs produced and
consumed locally?
PETITIONER’S ARGUE:
 CSA’s categorical approach to drug classification as applied to the intrastate manufacture and
possession of marijuana for medical purposes pursuant to CA law exceeds congress’s commerce
clause power.
COURT:
 Just as in Wickard, here too congress has a rational basis for concluding that leaving home-
consumed marijuana outside federal control would similarly affect price and market conditions.
o High demand for marijuana in interstate market will likely draw home produced
marijuana into that market.
 DIFFERENCE FROM LOPEZ AND MORISSON:
 20

o Lopez and Morrison the court decided challenges to entire statutes, and they involved
no economic activity.
 The proposed use here seeks only to invalidate local enforcement of the CSA for
a very specific purpose, and the use is also an economic activity.

10th AMENDMENT BETWEEN 1937 AND THE 1990’S

GARCIA v. SAN ANTONIO METRO TRANSIT AUTHORITY

RULE:
 The test for determining state immunity from federal regulation under the commerce clause is
whether the regulation applied to the state activity is destructive of state sovereignty or
violative of any constitutional provision.
REASONING:
 The manner in which states are insulated from congressional regulation under the commerce
clause is found in the limitations imposed by the constitution under Article 1 and in the structure
of the federal government itself.
o It gives the states considerable influence over both branches of government and affords
the states protection against the unbridled regulation of the fed govt.
o The constitutional scheme developed to protect the “states as states” is thus one of
PROCESS, not one of result.
o In the present case it is sufficient to say that in the application of the minimum wage
and overtime requirements of the FLSA to SAMTA is not destructive of state sovereignty
or violative of any constitutional provision
 SAMTA faces nothing more than the same minimum wage and overtime
obligations that hundreds of thousands of other employers, private as well as
public have to meet.

DOES THE 10TH AMENDMENT LIMIT CONGRESS’S AUTHORITY?

2 cases that have used the 10th amendment to invalidate federal laws: NY v. US and Printz v. US.

NY v. US
Constitutional question: what is the proper division of authority between the fed govt and states?

HELD: congress has the substantial power under the constitution to ENCOURAGE the states to provide
for the disposal of the radioactive waste generated within their borders, BUT the constitution does not
confer upon Congress the ability simply to “compel the states to do so.”

The act in question provided 3 types of incentives to encourage states to comply with the statutory
regulations
 First 2 were not at issue, they were monetary incentives
 3rd was the “Take Title Provision” (the most severe)
 21

COURT:
 These questions can be viewed in 2 ways:
o Court will inquire whether the act of Congress is authorized by one of the powers
delegated to Congress in Article 1 of the constitution (Perez, McCulloch)
o The court seeks to determine whether an act of congress invades the province of state
sovereignty reserved by the 10th amendment (Garcia v. san Antonio)

-If power is delegated to congress in the constitution, the 10 th amendment bars the states from any
claim to that power.
-if a power is an attribute of state sovereignty reserved by the 10 th amendment, it is necessarily a power
that has not been conferred on Congress

*The 10th amendment thus directs the court here to determine whether an incident of state sovereignty
is protected by a limitation on the Article 1 power.
Good quote from Butler, “question is not what power the federal government ought to have but what
powers in fact have been given by the people.”

B.
Since space in radioactive waste disposal sites is frequently sold by residents of one state to residents of
another, regulation of the interstate market in waste disposal is “well within congress’s authority under
the commerce clause.”
 Under the supremacy clause congress could also if it wished pre-empt state radioactive waste
regulation

PETITIONERS MAIN ARGUMENT:

 Only contention is that the 10th amendment limits the power of congress to regulate in the way
it has chosen.
o Rather than addressing the problem of waste disposal by directly regulating the
generators and disposers of waste, PETITIONERS ARGUE, “congress has impermissibly
directed the states to regulate this field.”

This litigation concerns the circumstances under which Congress may use the sates as implements of
regulation; whether congress may direct or otherwise motivate the states to regulate in a particular field
or particular way.

PRINCIPLES THAT GUIDE THE RESOLUTION OF THE ISSUE:

1. Congress may not simply “commandeer the legislative process of the states by directly
compelling them to enact and enforce a federal regulatory program.
a. While congress has substantial power to govern the nation ‘directly,’ even including
areas of intimate state concern, the Constitution has NEVER been understood to confer
upon congress the ability to require the states to govern according to Congress’s
instructions.
b. FRAMERS: it was a lively debate whether the Constitution should permit Congress to
employ state governments as regulatory agencies…
i. In providing for a stronger central govt, the framers EXPLICITLY chose a
constitution that confers upon Congress the power to regulate individuals, NOT
STATES.
 22

ii. Court has consistently respected this choice

iii. Court has always understood that even where congress has the authority under
the constitution to pass laws requiring or prohibiting certain acts, “it lacks the
power directly to compel the states to require or prohibit those acts.”
c. The allocation of power contained in the Commerce Clause authorizes congress to
regulate interstate commerce directly, IT DOES NOT AUTHORIZE CONGRESS TO
REGULATE STATE GOVT’S REGULATION OF INTERSTATE COMMERCE!
2. This does not say that congress lacks the ability to encourage a State to regulate in a particular
way, or that Congress may not hold out incentives to the States as a method of influencing a
State’s policy choices.
a. 2 ways congress may urge a state to adopt a legislative program consistent with federal
interests:
i. Under Congress’s spending power, “congress may attach conditions on the
receipt of federal funds.” (south Dakota)
1. Such conditions must bear some relationship to the purpose of federal
spending
ii. Where congress has the authority to regulate private activity under the
Commerce Clause, the court has recognized Congress’s power to offer states the
choice of regulating that activity according to federal standards or having state
law pre-empted by federal regulation.
1. “a program of cooperative federalism”
a. Ex. Clean water act, Occupation safety and health act

*By either of these methods, the residents of the State retain the ultimate decision as to whether or not
the State will comply.
 If a state’s citizens view federal policy as sufficiently contrary to local interests, they may elect to
decline a federal grant.
 If residents would prefer their govt. to devote its attention elsewhere, they may choose to have
the federal govt. rather than the state bear the expense of a federally mandated regulatory
program, and they may continue to supplement that program to the extent state law is not pre-
empted.
o Where congress encourages state regulation rather than compelling it, state govts.
Remain responsive to the local electorate’s preferences, and state officials remain
accountable to the people.
 BY CONTRAST
o When the federal govt compels states to regulate, the accountability of both state and
federal officials is diminished.
 Where the federal govt directs the states to regulate, it may be state officials
who will bear the brunt of public disapproval, while the federal officials who
devised the regulatory program remain insulated from the electoral
ramifications of their decision.
o THUS, accountability is diminished when, due to federal coercion, elected state officials
cannot regulate in accordance with the views of the local electorate in matters not pre-
empted by federal regulation.

III.
 23

 Court upheld the monetary and access incentives created by congress for states to open waste
sites.
o This was a permissible exercise of the spending power
 TAKE TITLE PROVISION
o “congress has crossed the line distinguishing encouragement from coercion.”
o Take title provision: offers state govts a “choice” of either accepting ownership of waste
or regulating according to the instructions of congress.

*No matter how powerful the federal interest involved, the Constitution simply does not give Congress
the authority to require the States to regulate.
 The constitution instead gives congress the authority to regulate maters directly and to pre-
empt contrary state regulation.
o Where a federal interest is sufficiently strong to cause Congress to legislate, it must do
so directly; it may not conscript state govt’s as its agents.

PRINTZ v. UNITED STATES

PETITIONER’S ARGUMENT:
 Object to being pressed into federal service and contend that congressional action compelling
state officers to execute federal laws is unconstitutional.

No constitutional text speaking to this precise question court looks to ‘historical understanding and
practice,’ to the structure of the constitution, and in the jurisprudence of the court.

1. Compelled enlistment of state executive officers for the administration of federal programs is,
until very recently, unprecedented.
a. Early enactments of congress contain no evidence of the assumption that the Federal
Govt. may command the states executive power in the absence of a particularized
constitutional authorization, they contain an indication of the opposite assumption!
i. when the 1st congress enacted a law aimed at obtaining state assistance of the
most rudimentary and necessary sort for the enforcement of the govts laws: the
holding of federal prisoners in state jails
2. consideration of the structure of the constitution.
a. Framers experience under the articles of confederation had persuaded them that using
the states as instruments of federal governance was both ineffectual and provocative of
federal state conflict.
i. This separation of the two spheres is one of the constitutions structural
protections of liberty.
ii. There must be a healthy balance of power between the states and federal govt.
to reduce the risk of tyranny.
3. PRIOR JURISPRUDENCE OF THIS COURT
a. “states are being reduced to puppets of a ventriloquist congress”
b. “the federal govt may not compel the states to enact or administer a federal regulatory
program.”

THOMAS CONCURRENCE:
 24

 Must temper our commerce clause jurisprudence and return to an interpretation better rooted
in the clause’s original understanding

RENO v. CONDON
Driver’s Privacy Protection Act:
 “regulates the disclosure of personal information contained in records of the DMV.

HELD:
 Enacting this statute congress did not run afoul of the federalism principles enunciated in NY v.
US and Printz v. US.

FACTS:
 DMV’s require drivers to provide personal information which may include name, address, phone
number, social security…
 Congress found that many States in turn sell this personal information to individuals and
businesses.
o These sales generate significant revenue.
 DPPA
o Establishes a regulatory scheme that restricts state’s ability to disclose personal info
without driver’s consent.
 Prevents officials from “knowingly disclosing info obtained by DMV
o Defines personal info as: info that identifies an individual (social security number ex.)
o Provisions do not apply solely to states
 Prevents resale of personal info by private persons who have obtained the info
from the DMV
CASE:
 South Carolina law conflicts with DPPA provisions
o SC law: “info in the DMV is available to anyone that fills out a form listing the
requester’s name and stating the info will not be used for telephone solicitation.
 SC AG filed suit:
o “alleging that the DPPA violates the 10 th and 11th Amendments.

COURT:
 Begin with time honored presumption, “DPPA is a constitutional exercise of legislative power”
o US Asserts: “DPPA is a proper exercise of Congress’s authority to regulate interstate
commerce under the COMMERCE CLAUSE.”
 BASIS FOR COMMERCE CLAUSE ARGUMENT
o Personal info that DPPA regulates is a “thing in interstate commerce,” sale of the info in
interstate commerce is subject to regulation.
 COURT: AGREE with US’s CONTENTION
o Driver’s info is an article of commerce in this context
 BUT
o Still does not resolve the constitutionality of the DPPA
 25

 In NY and Printz court held federal statutes invalid, NOT because congress
lacked legislative authority, BUT because those statutes violated the principles
of federalism in the 10th amendment.
 SC CONTENTION
o DPPA violates the 10th amendment because it:
 Thrusts upon the states all of the “day to day” responsibility for administering
complex provisions AND thereby makes ‘state officials the unwilling
implementers of federal policy’
 State employees have to learn and apply acts restrictions
o This will consume TIME and STATE RESOURCES
 COURT’S RESPONSE
o Agree DPPA will require time and effort, but REJECT the argument that the DPPA
violates the principles laid down in either NY or PRINTZ.
 This case is governed by SC v. BAKER
 Upheld statute prohibiting states from issuing unregistered bonds
because the law “regulated state activities,” it did not seek to “control
or influence the manner in which states regulate private parties.”
o DPPA doesn’t require States to regulate their own citizens
 DPPA regulates the state’s as the owners of databases.
o DPPA is consistent with constitutional principles enunciated in NY and PRINTZ
 SC LAST ARGUMENT:
o DPPA is unconstitutional because it regulates states exclusively.
 May only regulate states by means of generally applicable law
 COURT:
o General applicability is not at issue here, DPPA is not generally applicable.

TAXING AND SPENDING POWER

 Article 1 section 8
o “congress shall have the power to lay and collect taxes
o Under articles of confederation govt. had no taxing power and therefore no revenue to
spend…
o Taxing power is now one of Congress’s greatest powers

CONDITIONS ON GRANT’S TO STATE GOVERNMENTS

 Congress may place strings on such grants, so long as the conditions are expressly stated and so
long as they have some relationship to the purpose of the spending program.

SOUTH DAKOTA v. DOLE

FACTS:
 SD’s drinking age was 19
 In 1984 Congress passed 23 USC section 158
o Directs secretary of transportation to withhold a percentage of fed. Highway funds from
states who maintained a drinking age of under 21.
 SD sued in district court
 26

o Contention was that 158 violated the constitutional limitations on congressional

exercise of the spending power and violates the 21 st amendment.

COURT:
 Congress has the power to tax
o Incident to the power congress may attach conditions on receipt of federal funds
o Congress has the power to “further broad policy objectives by conditioning receipt of
federal funds upon compliance with a certain requirement.

 Spending power is not limited, subject to several general restrictions

1. derived from language of constitution
a. must be in pursuit of general welfare
b. courts should defer to judgments of congress on this
2. conditions must be unambiguous, enabling states to exercise their choice
knowingly
3. conditions might be illegitimate if they are unrelated “to the federal interest in
particular national projects or programs.
DISSENT:

CONGRESS’S POWERS UNDER THE POST CIVIL WAR AMENDMENTS

 after the civil war 3 extremely important amendments were passed:

o 13th amendment
 Prohibits slavery
 Section 2: “congress shall have the power to enforce this article by appropriate
legislation”
o 14th Amendment
 “no state can abridge the privileges and immunities of such citizens; nor may
states deprive a person of life, liberty and the pursuit of happiness without due
process of law or deny any person of equal protection of the laws
 Section 5: “congress shall have the power to enforce this article by appropriate
legislation”
th
o 15 Amendment
 “the rights of citizens of the US to vote shall not be endied or abridged by the US
or any state on account of race, color, or previous condition of servitude.”
 Section 2: “congress shall have the power to enforce this article by appropriate
legislation”
 Thus, these 3 amendments contain provisions that empower congress to enact civil rights
legislation

WHOM MAY CONGRESS REGULATE UNDER THE POST CIVIL WAR AMENDMENTS?

Civil Rights Cases

 Court held that Congress, pursuant to §2 of the 13 th and section 5 of the 14th may regulate only
state and local govt. actions, NOT PRIVATE CONDUCT.
 Civil Rights Act of 1875
 27

o Broadly prohibited private racial discrimination by hotels, restaurants, transportation

and other public accommodations
 By 8-1 the Court held this act was unconstitutional and adopted a restrictive
view as to the power of congress to use these Amendments to regulate
behavior
 13th Amendment applies to private conduct only in the sense it bans slavery which is private
conduct.
o Congress could not use 13th to adjust the social rights of men in the community.
 20 years after the Civil War
o Little need for civil rights legislation to protect African Americans
o J. Bradley “there must be some stage in the progress of his elevation when he takes the
rank of a mere citizen”
 14th Amendment
o Congress lacked authority to enact the law
o Only applies to govt. action, cannot be used by Congress to regulate private behavior.
 NOW AND DAYS
o Under the 13th, pursuant to section 2, Congress may prohibit racial discrimination
 Jones Case
 Court held Congress could prohibit private discrimination in the selling
and leasing of property
 Af. Am couple sued using 42 USC Section 1982
o “all citizens have same right to purchase, sell, lease property.
 Court held that 1982 applies to prohibit private discrimination
o The court said congress has broad legislative authority under the 13 th amendment.
o HOWEVER
 Court recently reaffirmed that Congress cannot regulate private behavior under
the 14th amendment.
 US v. GUEST
o Court: Concluded that Congress may outlaw private
discrimination pursuant to Section 5 of the 14 th
o Involved fed law that made it illegal to go in disguise on hwy or
another’s property to hinder exercise of enjoyment of any right
o Could have used commerce clause for this, regardless of race.
o Other justices concluded that congress could prohibit private
discrimination under 14th section 5 power.
o “language of section 5 empowers congress to enact laws
punishing all conspiracies, with or without state action, that
interfere with the 14th.
 HOWEVER, Guest was recently overruled, “Congress cannot regulate
private behavior under section 5”

US v. MORRISON

ISSUE:
 Constitutionality of the civil damages provision of the Violence Against Women Act.

FACTS:
 28

 women from VT who while a freshman was allegedly raped by football players
 She sued under the civil remedies provision of the Act.
 In first part of opinion the majority held that it “exceeded the scope of Congress’s Commerce
Clause Authority” (had nothing to do with economics)

In the Alternative:
 Govt. argued that the law was constitutional as an exercise of Congress’s remedial power under
Section 5 of the 14th amendment.

 Congress expressly invoked the 14th amendment as a source of authority to enact Section 13981.

PETITIONERS ARGUMENT:
 There is pervasive bias in various state justice systems against victims of gender motivated
violence.
o This assertion is supported by an ample congressional record.

ANALYSIS:
 Language and purpose of 14th place limitations on the way in which Congress may attack
discriminatory conduct.
o These limitations are necessary to prevent the 14 th from eliminating the balance of
power between the states and national govt.
 14th could have a broad reach by its wording
 LIMITATIONS:
o By its terms, prohibits ONLY state action
 Erects no shield against merely private conduct (won’t protect individuals
 2 cases were decided right after the adoption the 14 th interpreting its provisions
 US v. HARRIS and CIVIL RIGHTS CASES
o Held: “laws exceeded congress’s section 5 power because the
law was “directed exclusively against the action of a private
person, without reference to the laws of the state”
 STARE DECISIS
 Stands behind these decisions not only by length of time but also by the
insight attributable to the members of the court.
o Every member had intimate knowledge and familiarity with the
events surrounding the adoption of the 14 th
 PETITIONERS ARGUMENT
o Rely on Guest for proposition that the rule of the Civil Rights Cases is no longer good.
 Court had no right to revisit the rulings of these cases because they had already
determined that the charge contained an allegation of state involvement.
 So 14th worked on that ground.
 COURT:
o Section 13981 is not aimed at proscribing discrimination by state officials or state actor,
but at individuals who have committed criminal acts motivated by gender bias.
 This is unlike any other section 5 remedies that have been upheld.
 29

o Congress’s effort in 13981 to provide a federal civil remedy cannot be upheld by the
commerce clause nor under section 5 of the 14 th amendment.
 She should seek redress under Virginia law.

DISSENT:
 Govts argument:
o Congress used section 5 to remedy the actions of state actors who through
discriminatory design failed to provide adequate state remedies.
 This is a failure of the state

WHAT IS THE SCOPE OF CONGRESS’S POWER

2 Different views as to scope of congress’s power under the PCWA and particularly Section 5 of the 14 th
Amendment

NARROW VIEW:
 Congress only has the authority to prevent or provide remedies for violations of rights ‘
o Congress cannot expand the scope of rights or provide additional rights

Broad view:
 Congress can interpret the 14th to expand the scope of rights or even create new rights
o Congress may create rights by statute where the court has not found them in the
constitution, but congress cannot diminish constitutional rights

Choice between 2 views is a textual argument concerning what Section 5 means when it empowers
congress “to enforce” the amendment by appropriate legislation.
NARROW:
-congress is not “enforcing” if it is creating new rights
BROAD
-congress is “enforcing” the amendment by creating greater protections than those found by court.

KATZENBACH v. MORGAN

ISSUE:
 Concerns the constitutionality of Section 4(e) of the “Voting Rights Act of 1965”
o Law provides “no person who has successfully completed the 6 th grade in a public or
private school, accredited by the commonwealth of Puerto Rico in which the language
of instruction was other than English shall be denied the right to vote in any election
because of his inability to read or write English”

VOTERS OF NY ARGUMENT:
 This law prohibits the enforcement of the election laws of NY requiring an ability to read and
write English as a condition of voting.
 NY AG urges that 4(e) cannot be sustained as appropriate legislation to enforce the Equal
Protection Clause (of the 14th) unless the judiciary decides that the English literacy requirement
prohibited by 4(3) is forbidden by the EPC itself.
 30

COURT:
 We Disagree
 If congress were limited to restricting only those state laws that violated the amendment, there
would be no need for federal law, since the state law could be invalidated by the courts.
 The test must be whether the federal legislation is appropriate to enforcement of the Equal
Protection Clause.

Even though congress is adding rights of Puerto Ricans to vote, they are inversely restricting the rights to
those voters who meet the requirements….there vote will now mean less
-congress can go beyond what the court has said.

CITY OF BOERNE v. FLORES

In Smith case court changed the law and held that the free exercise clause cannot be used to challenge
neutral laws of general applicability
 OR law prohibiting use of peyote was neutral because it was not motivated by a desire to
interfere with religion
 And it was a general law against drug use.
 In response to this congress adopted RFRA to overturn smith and restore the old test
 State can’t deny me rights for engaging in religious practice
o Supreme court: 1st does not protect this individual
o Previously, if you have a generally applicable law that incidentally affects religious
practice, it will be scrutinized…
o If law applies to all, is neutral (doesn’t affect different people differently) then it doesn’t
matter if it captures people engaging in religious conduct.
 Smith is outta luck, he can’t smoke peyote because nobody can
o This case was seen as attacking religious freedom
 Congress then passed the RFRA, overturning the important part of smith
 Now its really hard for state to apply a generally applicable law to
religious practice

ISSUE:
 Calls into question the authority of Congress to enact the Religious Freedom Restoration Act of
1993
o Spurred on by a decision of a local zoning authority to deny a church a building permit

FACTS:
 Church was built in 1923 and it replicates the mission style of the regions earlier history
 The church seats 230 worshippers which is too small for the growing parish.
 So in order to meet the needs of the congregation the archbishop of san Antonio gave
permission to the parish to plan alterations to enlarge the building.
 A few months later the Boerne City Council passed ….check notes for facts!

SUIT:
 Archbishop brought this suit challenging the permit denial relying upon the RFRA as one basis
for relief
RFRA:
 31

 “prohibits government from ‘substantially burdening’ a person’s exercise of religion even if the
burden results from a rule of general applicability unless the govt. can demonstrate the burden:
o Is in furtherance of a compelling govt. interest
o Is the least restrictive means of furthering that compelling govt. interest

PARTIES DISAGREEMENT:
 Whether RFRA is a proper exercise of Congress’s section 5 power to “enforce by appropriate
legislation the rights conferred by the 14 th amendment.

COURT:
 Section 5 is a ‘positive grant of legislative power’ given to congress
 BUT it is also true that the congressional enforcement power is not unlimited.
 Congress can’t change the rights we have established

ASSESSMENT OF SECTION 5 TEXT:

 Congress has been given the power to enforce the provisions of the article
o Agree w/ church that congress can enact legislation under section 5 enforcing the
constitutional right to free exercise of religion
 BUT
o Congress’s power under section 5 is “remedial,” it extends only to “enforcing” the
provisions of the 14th amendment.
o The RFRA redefines the scope of the free exercise clause

HISTORY OF 14TH CONFIRMS “REMEDIAL” RAHTER THAN “SUBSTANTIVE” NATURE OF THE

ENFORCEMENT CLAUSE

 Court looks to the first draft of the amendment which has a direct bearing on the central issue
that defines congress’s enforcement power
o Criticisms had a common theme
 Amendment gave congress too much legislative power at the expense of the
existing constitutional structure
 Congress could intrude into traditional areas of state responsibility (a
power inconsistent with the federal design central to the constitution)
 New Draft:
o Had self-executing limits on the states (by adding section 5)
o This allowed congress to correct the unjust legislation of the states.

REMEDIAL AND PREVENTATIVE NATURE OF CONGRESS’S ENFORCEMENT POWER

 NO case has really questioned Congress’s section 5 power as corrective or preventative.
 Limitation on power was confirmed in civil rights cases
 “enforcement clause did not authorize congress to pass general legislation upon the rights of
citizens; but CORRECTIVE legislation
o Legislation that was necessary for counteracting state laws that violated the
amendment

WHETHER RFRA IS ENFORCEMENT LEGISLATION UNDER SECTION 5 OF THE 14 TH.

 32

Church’s ARGUMENT:
 RFRA is a proper exercise of congress’s remedial or preventative power
o Act is reasonable means of protecting freedom of religion
o If congress can prevent racial discrimination in violation of equal protection clause, then
it can do the same for religion.
The Court, in an opinion by Justice Anthony Kennedy, struck down RFRA as an unconstitutional use of
Congress's enforcement powers. Because it was the Court that had the sole power of defining the
substantive rights guaranteed by the Fourteenth Amendment—a definition to which Congress could not
add and from which it could not subtract—and because RFRA was not legislation designed to have
"congruence and proportionality" with the substantive rights that the Court had defined, Congress could
not constitutionally enact RFRA. Although Congress could enact "remedial" or "prophylactic" legislation
that guaranteed rights not exactly congruent with those defined by the Court, it could only do so in
order to more effectively prevent, deter or correct violations of those rights actually guaranteed by the
Court. RFRA was seen disproportionate in its effects compared to its objective

This case seriously limits what congress can do under 14 th.

-Court is issuing a very strong opinion that the judiciary is supreme in interpreting the constitution.
-states can enact laws now that might incidentally affect religion.
-this is a switch from katzenbachs nationalist view…but now court says that katzenbach is much
more narrow and applied only to its facts.

FEDERAL EXECUTIVE POWER

INHERENT PRESIDENTIAL POWER

Alexander Hamilton:
 The wording of articles 1 and 2 reveal the framer’s intent to create inherent presidential powers.
 Because Article II does not limit the President to powers “herein granted,” the president has
authority not specifically delineated in the constitution

James Madison
 The open language of Article II was “simply to settle the question whether the executive branch
should be plural or single and to give the executive title.”
 President has no powers that are not enumerated in Article II and such unenumerated authority
would be inconsistent with a Constitution creating a govt. of limited authority.

YOUNGSTOWN SHEET AND TUBE v. SAWYER

ISSUE:
 Whether the president was acting within his constitutional power when he issued an order
directing the secretary of Commerce to take possession and operate most of the Nation’s Steel
Mills.

STEEL MILL ARGUMENT:

 33

 The president’s order amounts to lawmaking, a legislative function which the constitution has
expressly given to congress and not the president

GOVT ARGUMENT:
 Order was made on findings of the President that his action was necessary to avert a national
catastrophe which would have resulted from a stoppage of steel production
o President was acting within the aggregate of his constitutional powers as Chief
Executive and the Commander in Chief of the Armed Forces.

JUSTICE BLACK:
 President’s power to issue this order must stem from either an act of congress or from the
constitution itself.
o There is no statute that authorizes him to take possession as he did here
o Neither is there an act of congress from which this power can be implied

2 Statutes that authorize the President to take both personal and real property under certain conditions.
 Govt. admits these conditions were not met; order was not rooted in either statute.

1. Use of this seizure technique to solve labor disputes was previously unauthorized by congress.
a. Taft Hartley ACT
i. Congress rejected amendment which would have authorized governmental
seizure in an emergency
ii. It would interfere with collective bargaining
iii. Should encourage settlement through mediation and conciliation
iv. If all this failed unions were cleared to strike

2. If president had the authority to issue this order it must be found in some provision of the
constitution.
a. No express constitutional language grants this power

GOVT ARGUMENT:
 Presidential power should be implied from the aggregate of his power under the constitution
o Place reliance on article II

COURT:
1. Order cannot properly be sustained as an exercise of the President’s military power as
Commander and Chief of the Armed Forces
a. Govt. tries to validate this by citing cases upholding the broad powers vested in military
leaders engaged in war
b. COURT: cases don’t concern the court here
i. Must remain faithful to the constitution by not affording the commander in
chief the power to take possession of private property
c. THIS IS A JOB FOR CONGRESS, NOT MILITARY AUTHORITIES.
2. Order cannot be sustained because of several constitutional provisions that grant executive
power to president
a. Framework of constitution gives President the power to see that the laws are faithfully
executed which refutes the idea he is a lawmaker (his job is to oversee, not create)
 34

FOUNDERS TRUSTED THE LAWMAKING POWER TO CONGRESS BOTH IN GOOD TIMES AND IN BAD
TIMES.

JUSTICE JACKSON CONCURRING

Puts force an analysis:
The power of the president to act can be viewed as three separate categories of circumstances:

1. The president’s power is at its maximum when he acts pursuant to express or implied
congressional authority.
a. A seizure executed by President pursuant to an act of congress would be supported by
the judiciary and the burden would be on those who would oppose it.
2. In the absence of a congressional grant of power, the President acts solely on the basis of his
powers as specified in the constitution.
a. In this area the actual test of power is likely to depend on the situation rather than any
theory of law.
3. When the president acts in contravention of congressional action, he may do so only where it
can be shown that Congress has exceeded its constitutional powers and the President is acting
in his own sphere of authority (lowest grant of power)
a. Courts can sustain this action only by disabling congress, so they must do so with great
caution.
i. The balance of power afforded by the constitution is at stake here.

APPLIED TO THE CASE AT HAND:

 Doesn’t apply to the first situation.
o No congressional authorization exists for this seizure
 Doesn’t fit in the second situation either.
o Seizure of property is not an open field, Congress has ruled against it in 3 different
statutes already.
 Only category left is the severe test of the 3 rd situation.

COURT:
 The constitution expressly places in the Congress the power “to raise and support armies” and
to “provide and maintain a navy”
o Congress controls the raising of revenues; it is their responsibility to decide the manner
in which they will spend for army and navy procurement.
o Only congress can provide the president with an army or navy
Military powers of commander and chief are not to supercede representative govt. of
internal affairs based on the writing of the constitution.
 The constitutional grant of powers to the president is in specific terms that do not permit any
loose aggregation to create powers not specified

THE EXECUTIVE ACTION WE HAVE HERE ORIGINATES IN THE INDIVIDUAL WILL OF THE PREZ AND IS AN
EXERCISE OF AUTHORITY WITHOUT LAW.
-slippery slope, doesn’t know what powers will emanate from a decision giving the president
power to seize industry.
 35

COURT IS LAST LINE OF DEFENSE OF OUR GOVT

JUSTICE DOUGLAS, CONCURRING

 The country’s emergency did not create power for the president; it marked an occasion when
power should be exercised.
 Congress as well as president are trustee of the national welfare.
 Legislative process is slow to exercise, and that may cost us in a time of emergency…BUT
 As justice brandeis said, “separation of powers was not adopted to promote efficiency but to
preclude the exercise of arbitrary power.
 WE CAN’T DECIDE THIS CASE BY WHICH BRANCH OF GOVT. MOVES QUICKER IN A TIME OF
CRISIS.

o THE answer must depend on the allocation of powers under the constitution.
o That in turn requires an analysis giving rise to the seizure and the seizure itself.
 When US seizes a plant, US must compensate for temporary possession
 President has no power to raise revenues
 That power is given to congress by article 1 section 8
 THE BRANCH OF GOVT THAT HAS THE POWER TO PAY COMPENSATION FOR A SEIZURE IS THE
ONLY ONE ABLE TO AUTHORIZE A SEIZURE.

JUSTICE FRANKFURTER, CONCURRING

 CONGRESS COULD NOT MORE CLEARLY STATE THAT THE PRESIDENT DOES NOT HAVE THE
POWER OF SEIZURE
o NO LEGISLATIVE HISTORY GIVING ANY RISE TO THIS POWER
o Our govt. was meant to have restrictions
 Congress has authorized seizure 16 times since 1916, each time of which there were limits and
safeguards.
 Congress also expressly states the compensation to be paid.
 Under the Labor Management Relations Act of 1947:
o It was clearly stated that the only method for preventing a shutdown of industry was
vested in congress.

VINSON, REED and MINTON DISSENTING

o The majority’s opinion has left the president powerless to act at the very time the need
for his independent and immediate action is greatest.

US v. RICHARD NIXON

ISSUE: review of the denial of a motion filed in the district court on behalf of the President to quash a 3 rd
party subpoena “duces tecum” issued by the USDC of DC.
 36

 Subpoena directed the President to produce certain tape recordings and documents relating to
his conversations with aides and advisors.

COURT: rejected President’s claims of: “absolute executive power,” “lack of jurisdiction” and “failure to
satisfy the requirements of Rule 17(c).

PRESIDENT’S LACK OF JURISDICTION CLAIM:

 ARGUE: Court lacked jurisdiction to issue the subpoena because the matter was an intra branch
dispute
o This dispute does not present a “case” or “controversy” which can be adjudicated in
federal court.
 ARGUE: Federal courts should not intrude into areas committed to the other branches of Govt.
o Views this as a jurisdictional dispute within the executive branch
o Since executive branch has exclusive authority and absolute discretion to decide
whether to prosecute, the president’s decision is final in determining what evidence is
to be used in a criminal case.
COURT:
 Mere assertion of a claim of an “intra-branch dispute” without more has never defeated federal
jurisdiction….jurisdiction does not depend on such a surface inquiry.
 Starting point is the nature of the proceeding for which evidence is sought: a criminal
prosecution
o This is a judicial proceeding in federal court alleging violation of federal law
o Under authority of Art. II section 2 congress vested power in attorney general to
conduct the criminal litigation of the US Govt.
 Also vested the power in him to appoint special prosecutors.
 This gives special prosecutor explicit power to oppose the president in the
process of seeking evidence

 ISSUE: the production of specified evidence deemed by the special prosecutor to be relevant
and admissible in a pending criminal case.
o Issue of who wins…special prosecutor acting within the scope of his express authority or
president acting on his duty to preserve the confidentiality of his communications.

CLAIM OF PRIVILEGE:
President’s claim:
 Subpoena should be quashed because it demands “confidential conversations between a
president and his close advisors”
 1st CLAIM:
o The separation of powers doctrine precludes judicial review of a President’s claim of
privilege.
 2nd CLAIM:
o If the 1st claim of absolute privilege does not prevail, court should hold as a matter of
constitutional law hold that the privilege prevails over subpoenas.

COURT:
 Presidents counsel reads constitution as providing an absolute privilege of confidentiality for all
presidential communications:
 37

o It is up to the judicial dept to say what the law is, reaffirming the holding of Marbury v.
Madison.
 The respective branches of the govt cannot share powers, this would defeat the checks and
balances system.
 HELD: court must say what the law is with respect to the claim of privilege presented in this case

2 GROUNDS SUPPORTING PRESIDENT’S CLAIM OF PRIVILEGE ARGUMENT:

1. Need for protection of communications between govt. officials and those who seek to advise
them.
a. This is very important. Officials might censor themselves if they knew their words would
reach the public, this could affect the decision making process.
2. Absolute privilege claim rests on the “doctrine of separated powers.”
a. Independence of the executive branch within its own sphere insulates the president
from judicial subpoena.
COURT:
 NEITHER OF THESE CLAIMS SUSTAINS ABSOLUTE UNQUALIFIED PRESIDENTIAL PRIVILEGE OF
IMMUNITY FROM JUDICIAL PROCESS UNDER ALL CIRCUMSTANCES.
 Absent a claim of a need to protect military, diplomatic or sensitive national security secrets, the
court finds it difficult to accept the argument that confidentiality of Presidential communication
is diminished by production of such material for an inspection afforded all the protection that a
district court would provide.
C.
COURT:
 Legitimate needs of the judicial process may outweigh presidential privilege
o Must resolve these competing interests in a manner that preserves the essential
function of each branch.

*NO case has extended this high degree of deference to a President’s generalized interest in
confidentiality

*The right to production of all evidence at a criminal trial has constitutional dimensions:
 6th Amendment:
o Explicitly confers that a Df. In a criminal trial has the right to be confronted with
witnesses against him
 5 Amendment:
th

o Guarantees no person shall be deprived of liberty without due process of law.

 It is the duty of the court to uphold those guarantees AND in order to do so it is essential that all
relevant and admissible evidence be produced.

*Court must weigh the importance of the president’s general privilege of confidentiality of
communications against the privilege of a fair criminal trial.

COURT:
 This will not negatively affect the advisors
 BUT to withhold evidence that is relevant to a criminal trial would cut deeply into the guarantee
of due process of law and impair the basic function of the court.
 38

NOTES: this is the only time you have to give over conversations, don’t worry this isn’t going to happen
much….still have power to withhold conversations that are important: military actions and national
security.

THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER

CLINTON v. CITY OF NEW YORK

(Involves the constitutionality of a federal statute that created the line-item veto act)
 Statute empowered the President to veto (or more precisely “cancel”) particular parts of
appropriation bills while allowing the rest to go into effect.
 There is no provision in the constitution that authorizes the President to enact, amend, or repeal
statutes.
o President and “approve” bills or he can “return” them before they come into law.
 Constitutional return of a bill is for the entire bill, here with the line item veto
act it is just a portion of the bill though.
 The constitution is silent on whether the President has the authority to do this
o Court must construe silence as an “express prohibition.”
HELD:
 Line Item Veto Act is unconstitutional, violates the Presentment Clause
o Delegated legislative powers to the President, violated the “non-delegation doctrine”
o Violated Article 1 Section 7, "if he approve [the bill] he shall sign it, but if not he shall
return it." There are only two options available, under the clause, to the President: he is
not authorized to amend the bill and then sign it.

THE CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE

Administrative Agency:
 Congress delegates its legislative power to executive agencies.
o Have broad power (examples: FCC, SEC, FDA, EPA)
o Exercise all the powers of government: legislative, executive & judicial.
 Legislative: they possess authority to promulgate rules that have the force of
law.
 Executive: they are responsible for bringing enforcement actions against those
who violate the relevant federal laws and regulations.
 Judicial: they employ administrative law judges who hear cases brought by
agency officials against those accused of violating agency regulations.
 Madison: “this is the very definition of tyranny.”
o Controlling and checking administrative agencies presents constitutional problem,
unaddressed by the framer’s intent.
NON-DELEGATION DOCTRINE
 Principle that congress may not delegate its legislative power to administrative agencies
o Forces a politically accountable congress to make the policy choices, rather than leaving
this to unelected administrative officials.
 39

o In past 70 years NOT A SINGLE federal law has been declared an impermissible
delegation of legislative power by the Supreme Court.
 All delegations, no matter how broad have been upheld.
 Court says that Congress must provide criteria to guide the agency’s exercise of
discretion, but even delegations without this criteria have been upheld.
 Judicial judgment: “broad delegations are necessary in the complex world of the
late twentieth century and the judiciary is ill-equipped to draw meaningful lines.

2 cases where non-delegation doctrine was used to invalidate federal law…not the practice though!

ALA SCHECTER POULTRY CORP v. UNITED STATES

HELD:
 Congress cannot delegate its legislative power to the president

PANAMA REFINING v. RYAN

HELD:
 Congress cannot delegate its powers to the President or his agencies “without providing policy
standards and guidance for the delegated powers.”

WHITMAN v. AMERICAN TRUCKING ASSN.

Schecter and panama:

 These statutes violated the nondelegation principle because they provided no standards or
guidelines for exercising the agency’s authority.

ISSUE: whether Section 109(b) of the Clean Air Act (CAA) delegates legislative power to the
Administrator of the EPA

Section 109(a):
 requires the administrator of the EPA to promulgate NAAQS for each air pollutants for which
“air quality criteria” have been issued
 Once a NAAQS has been promulgated the Administrator must review the standard at 5 year
intervals and make revisions.
 THIS CASE arose when the Administrator revised the NAAQS for particulate matter and ozone

CIRCUIT COURT:
 Agreed with respondents that section 109(b)(1) delegated legislative power to the Administrator
in contravention of US Constitution Art. 1 section 1. Because:
o EPA had interpreted the statute to provide no “intelligible principle” to guide the
agency’s exercise of authority
 Court thought that the EPA could avoid the unconstitutional delegation by adopting a restrictive
construction of section 109(b)(1)
 SO instead of declaring the section unconstitutional the court remanded the NAAQS to the
agency.
 40

RESPONDENT’S ARGUMENT:
1. the financial impact of implementing such standards should have been considered by the EPA
2. the Clean Air Act did not provide an “intelligible principle” to guide the EPA in promulgating the
NAAQS.

COURT:
 Economic considerations play no part in the promulgation of NAAQS under section 109
 1st step in assessing whether a statute delegates legislative power is to determine what
authority the statute confers…address the issue of interpretation first and constitutional
argument second
o How does the EPA know what the “public interest” is or what an “adequate margin of
safety” is…EPA can basically do whatever it wants

INTERPRETATION ARGUMENT:
 Section 109 instructs the EPA to set PAAQS, the attainment and maintenance of which are
requisite to protect public health.
o It is very clear that the text does not permit the EPA to consider costs in setting
standards.
 EPA is to identify the maximum airborne concentration of a pollutant that the public can
tolerate, decrease the concentration to provide an “adequate” margin of safety, and set the
standard at that level.
o Nowhere are the costs of achieving that standard made part of the initial calculation.
 TEXT OF SECTION 109(b)
o Interpreted in its statutory and historical context and considering its importance to the
CAA, there is an absolute bar on cost considerations

II. CONSTITUTIONAL ANALYSIS

 Appeals Court: section 109(b)(1) as interpreted by the administrator did not provide an
“intelligible principle” to guide the EPA’s exercise of authority in setting NAAQS.
o EPA lacked criteria to draw lines
o Failed to intelligibly state how much is too much
 The EPA’s interpretation violated the “nondelegation doctrine” (not the statute
itself)
 COURT: WE DISAGREE
o Delegation challenge: Constitutional Question: “whether the statute has delegated
legislative power to the agency.”
 Article 1 section 1 of Constitution vests all legislative power in congress
 This text permits NO DELEGATION of powers
 When congress confers decision making authority upon agencies
congress “must lay down by legislative act an intelligible principle to
which the body authorized is directed to conform”
NEVER SUGGESTED AN AGENCY CAN CURE UNLAWFUL DELEGATION OF LEGISLATIVE POWER BY
ADOPTING IN ITS DISCRETION A LIMITING CONSTRUCTION OF THE STATUTE.
 Agency can’t just decline to exercise some of its power
o Whether statute delegates legislative power is a question for the courts
 41

 Agency’s voluntary self-denial has no bearing upon court’s

answer.

COURT AGREES WITH SOLICITOR GENERAL:

 Section 109 at minimum requires that the EPA must establish uniform national
standards at a level that is requisite to protect public health from adverse
effects of the pollutant.
o Requisite means “sufficient” but not more than “necessary”
o These limits are similar to limits approved in other statutes.

*Scope of discretion of section 109(b)(1) is well within the outer limits of the non-delegation
precedents.
-only 2 statutes where the “intelligible principle” was lacking, literally providing no guidance for
the exercise of discretion:
- Panama
-ALA Schecter

COURT SUMMATION:
1. Court has almost never felt qualified to second guess congress regarding the permissible degree
of policy judgment that can be left to those executing or applying the law.
2. There must be some “intelligible principle” when congress confers decision making power on an
agency
3. Section 109(b) is interpreted to require the EPA to set air quality standards at the level that is
requisite- that is, not lower or higher than necessary- to protect the public health
a. This fits within the scope of discretion permitted by precedent.
4. Congress can’t just give away its authority…if they at least have some intelligible principle they
are still legislating, its not an unconstitutional delegation…congress is making a choice on how
things are regulated, but leaving the specifics up to the agency.

CHECKING ADMINISTRATIVE AGENCIES

 Congress can control administrative agencies through statutes.
o For instance, laws can be enacted directing agencies to perform certain tasks or denying
them authority in particular areas
o Congress can overturn agency decision by statute
o President can also veto such statutes, requiring that Congress act by a 2/3 vote to
effectuate such a check
o Congress also controls the budget of administrative agencies, can use this as check.
 President also has the “appointment and removal” power of agency officials.

APPOINTMENT POWER

MORRISON v. OLSON

ISSUE:
 A challenge to the independent counsel provision of the Ethics of Govt. Act of 1978
 42

HOLDING:
 These provisions of the act do not violate the Appointments Clause of the constitution, the
limitations of Article III, nor do they impermissibly interfere with the President’s authority under
Article II in violation of the principle of the separation of powers.

FACTS:
 Title 6 of the Ethics in Govt Act allows for the appointment of an “independent counsel” to
investigate and prosecute appropriate high ranking govt. officials for violations of criminal laws.
 The attorney General conducts the initial investigation, and when he has completed this
investigation, or 90 days has passed, he is required to report to a special court created by the act
for the purpose of “appointing independent counsel”
 If the AG finds there are reasonable grounds to continue investigation or prosecution then he
applies to the division of the court for the appointment of independent counsel.
 Upon receiving the application, the special division appoints an appropriate independent
counsel and defines the independent counsel’s prosecutorial jurisdiction.
 Within this jurisdiction the independent counsel is granted full power and independent
authority to exercise all the powers of the department of justice
o Power includes: conducting prosecutions, signing indictments and handling all aspects of
the case.
o Better to have IC investigate because they aren’t as linked to the politics…
o You need IC who is not tied to political

2 STATUTORY PROVISIONS GOVERN THE LENGTH OF AN INDEPENDENT COUNSEL’S TENURE:

1. The first provision allows the AG on his own personal action to remove independent counsel for
good cause.
a. IC can seek judicial review of this decision
2. 2nd provision allows for termination of IC’s office when he informs the AG he has substantially
completed his investigations or prosecutions under the act.
3. Act provides for congressional oversight of IC activities

COURT:
 Appointment’s Clause of Article II
o “but congress may by law vest the appointment of such ‘inferior officers’ as they think
proper.”
 No dispute that the constitution for purposes of appointments divides all its officers into 2
classes.
o Principle Officers: selected by President with advise and consent of the senate
o Inferior Officers: can be appointed by president, by heads of depts., or by the judiciary.
QUESTION IN THIS CASE:
“whether appellant is an ‘inferior’ or a ‘principle’ officer?
 If it this position is a principle officer then the Act is in violation of the Appointments Clause

THE LINE BETWEEN INFERIOR AND PRINCIPLE OFFICERS IS FAR FROM CLEAR AND THE FRAMERS
PROVIDED LITTLE GUIDANCE AS TO WHERE IT SHOULD BE DRAWN.

COURT:
o Morrison is clearly an “inferior officer”
 43

o Several factors lead to this conclusion…

o Court looks to “tenure, duration and duties to establish the label of inferior officer for
the IC
1. The IC is subject to removal by a higher executive branch official
a. The fact that she is can be removed by the AG indicates to some degree that she is
“inferior” in rank and authority.
2. The IC is empowered by the Act to perform only limited duties
a. Duties are restricted to investigation and if appropriate prosecution of federal crimes
i. Even though IC has full power and independent authority to exercise her
functions, this grant does not include authority to formulate policy or give
administrative duties outside of those necessary to her office
3. The IC’s office is limited in jurisdiction
a. IC can only act within the scope of the jurisdiction that has been granted by the special
division pursuant to a request by the AG
4. The IC’s office is limited in tenure
a. The office of the IC is temporary in that the IC is appointed to accomplish a single task
and when that task is over the office is terminated.

DISSENT: (much longer in book)

o President has sole discretion in conducting criminal prosecution and the law in question
deprives the executive branch of its right to exercise sole discretion
o The law violates the separation of powers and should be invalidated.
o Worried about a runaway prosecutor
 In Clinton case, Starr was an IC…was supposed to investigate shady real estate
deals in AR but ended up writing about Clinton’s sexual exploits.

CHECKS ON THE PRESIDENT

Important informal mechanisms: pressure of the public opinion and checks by Congress (through budget
process).
 2 primary formal mechanisms:
o Civil suits and criminal proceedings against president, and impeachment.

SUING AND PROSECUTING THE PRESIDENT:

 2 Supreme Court Cases: Nixon v. Fitzgerald and Clinton v. Jones…
o NIXON: established absolute immunity
o CLINTON: rejected any immunity for acts that occur before a President takes office.

Absolute Immunity: the complete protection from civil suit for a president for all official actions while in
office.

NIXON v. FITZGERALD

ISSUE: what is the scope of the immunity possessed by the President of the US?
 44

HOLDING: A president is entitled to absolute immunity from damages liability predicated on his official
acts.

PRESIDENT’S CLAIM: he is shielded by absolute immunity from civil damages liability.

FITZGERALD’S CLAIM:
 he was wrongfully terminated by the President in retaliation for revealing to congress
information that was embarrassing to the department of defense.
 President is only entitled to qualified immunity

FACTS:
 In 1970 Ernest Fitzgerald lost his job as a management analyst with the airforce.
o The Air Force said his dismissal occurred in the context of a departmental reorganization
and reduction in force
o They further justified it as an action taken to promote economy and efficiency in the
armed forces.
 Fitzgerald’s discharge attracted unusual attention from congress and the press though.
o A year earlier he appeared before the subcommittee on Economy in the Govt.
 Testified that cost overruns on a transport plane could approximate 2 billion
dollars and unexpected technical difficulties had arisen during the development
of the aircraft.
o The administration was not fond of reassigning him though
 Butterfield Memo:
 “no doubt a top notch cost expert, but he is not loyal and that’s the
name of the game”
o At a news conference in 1973 Nixon was asked about fitzgerald’s firing.
 In commenting Nixon assumed full responsibility for the dismissal
o A day later the whitehouse issued a retraction of the statement saying he had Fitzgerald
confused with another former employee.
COURT’S REASONING:
 Immunity should be conferred on the President because of his unique position in office, based
on the constitutional tradition of separation of powers and supported by history.

UNIQUE POSITION:
 Unique position in the constitutional scheme
o Article 1 section 1 grants the executive power shall be vested in the president
 This grant of authority establishes the Prez as chief constitutional officer of the
Executive branch, entrusted with supervisory and policy responsibilities of the
utmost discretion and sensitivity.
o INCLUDES:
 Enforcement of the law
 “take care that the laws be faithfully executed”
 Conduct of foreign affairs
 Courts lack the relevant information to nullify these actions (president
may have secret info they don’t)
 Management of executive branch
 45

 Power to remove the most important subordinates in their most

important duties.

FITZGERALD’S ARGUMENT: President is only entitled to qualified immunity

-relies on cases in which governor’s are held to this standard

COURT:
 These cases do not apply….President’s unique status under the constitution distinguishes him
from other executive officials
o Because of the importance of the president’s duties diversion of his energy by concern
of private lawsuits would effect the functioning of the govt.
 President has to concern himself with matters that arouse intense feelings
 These cases are precisely why we need to afford the maximum ability to let the
president deal with these without fear of liability.
 The president would be an easily identifiable target for civil damages because of the visibility of
his office and the effect of his actions on countless people.
o This could make the president act much more timidly which would be a detriment to the
nation.
 Absolute immunity will not leave the nation without sufficient protection against abuse from the
president:
o We can impeach him
o There are formal and informal checks on presidential action
 He is constantly scrutinized by the press
 He is under constant surveillance by congress which would deter abuse
 He wants to be reelected
 President’s are traditionally concerned with how they will be viewed after they
leave office.

CLINTON v. JONES

CLINTON’S CLAIM:
 That “in all but the most exceptional cases,” the constitution affords the president temporary
immunity from civil damages litigation arising out of events that occurred before he took office.
COURT:
 This claim cannot be sustained on the basis of precedent

ONLY 3 PRESIDENT’S HAVE BEEN DF IN CIVIL LITIGATION INVOLVING ACTIONS PRIOR TO TAKING OFFICE
 Roosevelt & Truman
o Cases were dismissed before they took office; reaffirmed after inaugurations
 Kennedy
o Unsuccessfully argued that his status as Commander in Chief gave him a right to stay
under the Soldiers and Sailors Civil Relief Act of 1940
 Matter was settled out of court.
 None of these cases shed any light on the constitutional issue before the court.

PRINCIPLE RATIONALE FOR AFFORDING IMMUNITY FOR LIABILITY ARISING OUT OF OFFICIAL ACTS IN
INAPPLICABLE TO UNOFFICIAL CONDUCT.
 46

 Immunity serves purpose to allow officials to perform their designated functions without fear
that a certain decision will open them up to liability.

CLINTON’S STRONGEST ARGUMENT:

 Based on the text and structure of the constitution
o He relies on article 2 and the separation of powers principles
o He contends that his office is unique, and that the powers of the president are too
important, litigation will burden his ability to perform presidential role.
COURT:
 If this case is properly managed, it will not eat up a substantial amount of time affecting duties.
 Settled law, “the separation of powers doctrine does not bar every exercise of jurisdiction over
the president
IMPEACHMENT
 Article II, Section 4 provides “the president, vice president and all civil officers of the United
States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or
other high crimes and Misdemeanors.”
 Article I, Section 2 provides that the House of Representatives has the sole power to impeach.
o If there is an impeachment by the House, then a trial is held in the Senate.
 Article I, Section 3 gives the Senate the sole power to try impeachments and prescribes that “no
person shall be convicted without the Concurrence of 2/3 the members present.”

PROBLEMS:
 What constitutes “high crimes and misdemeanors?”
o One view: limited to acts that involve criminal law and are a serious threat to society
o Other view (Ford): impeachable offense is whatever majority considers it to be

SEPARATION OF POWERS AND FOREIGN POLICY

Constitution says very little about foreign policy decision making

 Article 1, Section: grants Congress the power to regulate commerce with foreign nations, “to
declare war, to raise and support armies…”
 Article 2: “president shall be commander-in-chief of the army and navy and of the militia of the
several states, when called into the actual service of the US.”
o President “shall have power, by and with the Advice and Consent of the Senate, to make
Treaties, provided 2/3 of the senators present concur.”

US v. CURTISS WRIGHT

Action to prosecute a company that violated an embargo authorized by Congress and proclaimed by the
president.

CURTIS WRIGHT ARGUMENT:

 Thought the joint resolution was an unconstitutional delegation of legislative power

ISSUE:
 47

 Even If this delegation of power would be unconstitutional if it were confined to internal affairs
may it nevertheless be sustained on the ground that it’s aimed to provide a remedy in a foreign
territory?

FACTS:
 Congress passed a joint resolution authorizing the President to prohibit the sale of arms to
Bolivia and other countries that were involved in an armed conflict in Chaco
o President believed that the prohibition would increase the chances of reestablishing
peace
 Curtis Wright was indicted for violating the terms of the embargo when they conspired to sell 15
machine guns to Bolivia

COURT:
 Unnecessary to determine whether the resolution would have been open to challenge had it
related solely to internal affairs.
o The whole aim of the resolution is to affect a situation that is completely external to the
US which falls into the category of a foreign affair.

*MUST FIRST CONSIDER THE DIFFERENCE IN POWER OF THE FEDERAL GOVT CONCERNING INTERNAL
AND EXTERNAL AFFAIRS.
 2 classes of power are different both in respect to their origin and nature

The belief that the govt can only exercise those powers specifically enumerated in the constitution and
use of the implied powers that are necessary and proper to carry into effect those enumerated powers is
only true in respect to internal affairs.
 Purpose of constitution was to carve certain legislative powers from states that were desirable
to be vested in the federal govt.
 All other powers were left to the states
 SINCE the states never possessed international powers, those powers could not have been taken
from the mass the others were taken from

SINCE STATES NEVER POSSESSED INTERNATIONAL POWERS THEY WERE TRANSMITTED FROM THE
CROWN.
 Investment in the fed govt. with the powers of external sovereignty do not depend upon
affirmative grants of the constitution.

FEDERAL POWER OVER EXTERNAL AFFAIRS DIFFERS NOT ONLY IN ORIGIN AND CHARACTER FROM
INTERNAL AFFAIRS, BUT PARTICIPATION IN THE EXERCISE OF THE POWER IS SIGNIF. LIMITED.
 President alone has the power to speak or listen as a representative of the nation.
o He makes treaties with the advice of the senate; but he alone negotiates
o Both congress and senate are powerless to invade this sphere
o Marshall “president is the sole organ of the nation in its external relations, and its sole
representative with foreign nations.”
 The president, NOT congress has the better opportunity of knowing the conditions which prevail
in foreign countries
o He has confidential sources of information
 48

 Secrecy in respect of info gathered by president’s agents may be highly

necessary and disclosure of this info could have harmful results.

DAMES AND MOORE v. REGAN AND SECRETARY OF TREASURY

Dames and Moore filed suit to recover funds owed to them on a contract with the Government of Iran,
but the order of attachment was voided by an executive agreement.

LAW: President lacks the power to settle claims against foreign govts through an executive agreement;
but when congress approves the president’s actions, he can settle such claims.

FACTS:
o In Nov. 1979 President Carter acting pursuant to the International Emergency Economic Powers
Act (IEEPA) froze Iranian assets in the US after Americans were taken hostage in Tehran.
o The Americans held hostage were then released on Jan. 20, 1981 pursuant to an executive
agreement entered into the day before.
o The agreement included a promise to settle all claims and litigation between the countries
through arbitration
o Dames and Moore, who were holders of an attachment order against Iranian assets, filed suit
for declaratory judgment and injunctive relief against the US and the secretary of treasury to
prevent enforcement of the Executive Order.

D &M ARGUMENT:
o The actions of the president implementing the agreement with Iran were beyond his statutory
and constitutional powers
o Were unconstitutional because they adversely affected their final judgment against
Iranian govt.

COURT:
o Affairs between nations concerning claims by nationals of one country against the govt of
another are sources of friction.
o To resolve these difficulties nations often enter into agreements settling the claims of
their respective nationals.
 This is international practice reflecting international theory.
o US has longstanding tradition of settling such claims by executive agreement without
the advice and consent of senate.
 President under these agreements agrees to renounce claims of US nationals in
return for a lump sum of money.
o CRUCIAL TO COURT’S DECISION TODAY
o “the conclusion that congress has implicitly approved the practice of claim settlement by
executive agreement”
o This is best demonstrated by Congress’s enactment of the International Claims Settlement Act of
1949 (the act had 2 purposes:
o To allocate to US nationals funds received in the course of an executive claims
settlement with Yugoslavia
o To provide a procedure whereby funds resulting from future settlements could be
distributed.
 49

 To achieve these ends congress created the International Claims Commission

and gave it jurisdiction to make final and binding all decisions with respect to
claims by US nationals
 By creating a procedure to implement future settlement agreements congress
placed its stamp of approval on such agreements
o Over the years congress has frequently amended the ICSA to provide for problems that
arise from the act
 This demonstrates congress’s continued acceptance of the president’s claim to
settlement authority
o Prior cases have also recognized the president does have some measure of power to
enter executive agreements without obtaining the advise and consent of senate.
 US v. Pink
o FINALLY RECOGNIZE
 This decision is narrow
Where congress has acquiesced to the president’s action, the court is not prepared to say that the
president lacks the power to settle

WAR POWERS

HAMDI v. RUMSFELD

RULE:
 A united states citizen designated and detained as an enemy combatant has a due process right
to challenge the underlying factual support for that designation before a neutral arbitrator.
FACTS:
 After 9/11, Congress passed a resolution authorizing the President to “use all necessary and
appropriate force against those nations, organizations, or persons he determines planned,
authorized or committed terrorist attackes.”
 President then ordered troops into Afghanistan to subdue al qaeda.
 Hamdi was captured in Afghanistan and detained in the US.

REASONING:
 Since congress authorized the detention of Hamdi, president was okay to do so.
o Must prevent a combatants return to the battlefield…
 Court: “without a doubt, our Constitution recognizes that core strategic matters of warmaking
belong in the hands of those who are best positioned and most politically accountable for
making them.”
 Military officers engaged in the work of waging battle would be unnecessarily and dangerously
distracted by litigation half a world away and discovery into military operations would both
intrude on the sensitive secrets of national defense and result in a futile search for evidence
buried underneath the rubble of war.
 COURT: reject Govt. argument that separation of powers principles mandate a heavily
circumscribed role for the courts in such circumstances.
o Courts cannot be forbidden from examining the cases of individuals and be confined to
only looking at the legality of the broader detention scheme.
o “state of war is not a blank check for the president when it comes to the rights of the
nation’s citizens.”
 50

o Constitution most assuredly envisions role for all 3 branches of govt when individual
liberties are at stake.

BOUMEDIENE v. BUSH

RULE:
1. The Military Commissions Act of 2006 strips the federal courts of jurisdiction over habeas
petitions filed by foreign citizens detained at Gitmo.
2. The MCA of 2006 is a violation of the Suspension Clause of the Constitution.

REASONING:
1. If the MCA is considered valid, its legislative history requires that the detainee’s cases be
dismissed.
2. Because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for
the habeas writ, the MCA operates as an unconstitutional suspension of that writ.

 Suspension clause is designed to protect against these abuses. The judiciary will have a time-
tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest
safeguard to liberty.
o The clause protects the rights of the detained by affirming the duty and authority of the
Judiciary to call the jailer into account.
 COURT: questions of sovereignty are for the political branches to decide.
o President’s construction of a lease agreement would be entitled to great respect.
 COURT: “our cases do not hold it is improper for us to inquire into the objective degree of
control the Nation asserts over foreign territory.”
 GOVERNMENT: constitution has no effect at Guantanamo Bay, at least as to non-citizens,
because the US disclaimed sovereignty in the formal sense
 COURT: constitution cannot be chartered away like this…
o Even when the US acts outside its borders, its power are not “absolute and unlimited,”
but are subject to “such restrictions as are expressed in the constitution.”

JUSTICIABILITY
PROHIBITION AGAINST ADVISORY OPINIONS
 Core of article III’s requirements for cases and a controversy is that federal courts cannot issue
advisory opinions.
1. There must first be an actual dispute between adverse litigants.
2. For a case to be justiciable and not an advisory opinion, there must be a substantial likelihood
that a federal court decision in favor of a claimant will bring about some change or have some
effect.

PLAUT v. SPENDTHRIFT FARM

(finality case)
RULE:
 Congress may not retroactively command the federal courts to reopen final judgments without
violating the separation of powers doctrine
 51

FACTS:
 After congress amended the Securities Exchange Act, changing the limitations periods
established by case precedent and mandating reinstatement of cases dismissed as time barred,
the district court denied Plaut’s motion to reinstate the final judgment in his case on the ground
that the amendment was unconstitutional.
REASONING:
 Article III of the Constitution establishes a “judicial department” with the “province and duty to
say what the law is”(marbury) in particular cases and controversies.
 Constitution forbids interference with the final judgments of courts
 History shows that the framer’s crafted this charter of the judicial department with an express
understanding that it gives the federal judiciary the power not merely to rule on cases, but to
decide them subject to review only by superior courts in the Article III hierarchy.
 With Section 27A(b) Congress has exceeded its authority by requiring the federal courts to
exercise “the judicial power of the US” in a manner repugnant to the text, structure and
traditions of Article III.

ALLEN V. WRIGHT

(don’t forget separation of powers issue here too…Parent’s are trying to restructure IRS, which is
executive agency, court says that it does not have the authority to delve into this realm)

Petitioners:
 Parents of black school children who are in districts undergoing desegregation brought on behalf
of them, the children and other parents of black children in schools undergoing or in the future
will undergo desegregation…the class they seek to represent includes several million people.
 CLAIM:
o Children have not been victims of discriminatory exclusion of named schools (never
allege that their children would have applied)
o Allege direct injury form the mere fact of the challenged Govt. conduct & injury to their
children’s opportunity to receive a desegregated education.
INJURY
Respondents allege 2 injuries:
1. They are harmed directly by the mere fact of Government financial aid to discriminatory private
schools.
2. The federal tax exemptions to racially discriminatory private schools in their communities impair
their ability to have their public schools desegregated.
COURT:
 Neither of the alleged injuries suffices to support Parent’s standing….
 1st: fails under clear precedent because it does not constitute a judicially cognizable harm
o Interpreted in 2 ways: could either be a claim to have the govt avoid violating the law or
could be a claim of a stigmatic injury suffered by all members of a group.
 Neither is judicially cognizable.
o “asserted right to have the Govt. act in accordance with the law is not sufficient alone
for standing.
 No standing to simply complain that their government is violating the law.
o Stigmatic injury: only accords a basis for standing to “those persons who are personally
denied equal treatment” by the challenged discriminatory conduct.
 52

 If this claim were judicially cognizable it would extend to all blacks all over the
country to assert this injury
 Would transform the courts into a “vehicle for vindication for interests of
bystanders”
 nd
2 INJURY: respondent’s alleged harm poses a “concrete, personal interest that can support
standing in some circumstances.” (kids diminished ability to receive desegregated education)
o This is definitely a “judicially cognizable” harm and a serious injury.

Despite fact this second claim is a judicially cognizable injury, it is not fairly traceable to the government
conduct respondent’s challenge as unlawful.

COURT:
 Illegal conduct: IRS’s grant of tax exemption to some racially discriminatory schools.
 “the line of causation between that conduct and desegregation of Parent’s schools is attenuated
at best.”
o From perspective of IRS “the injury to Parents is ‘highly indirect’ and ‘results from the
independent action of some 3rd party not before the court.”
 Would be traceable to IRS ONLY IF there were enough discriminatory schools
receiving tax exemptions in the Parent’s communities for withdrawal of those
exemptions to make “an appreciable difference in desegregation.”
 NO REDRESSABILITY IN SIGHT EITHER
o No evidence showing schools would even change if they lost tax exempt status
o Don’t know how many schools are even receiving the funds in violation

CONCLUSION:
 Standing in this case would allow a suit not to enforce specific legal obligations whose violation
works a direct harm, but to seek restructuring of the apparatus established by the executive
branch to fulfill its legal duties.
o Constitution assigns to executive branch the duty to take care that the laws be faithfully
executed”…court could not recognize standing here without running afoul of principle.

Any school that discriminates cannot get tax exempt status

-problem: these schools are still segregating, yet they are getting a tax exempt status.

ISSUE: standing

Petitioners claim:
1. Govt is not following its own law
a. We have an interest in the govt following the law, thus we are injured by the law
2. If schools are getting tax exempt status, they are cheaper to go to and will foster segregation
a. By IRS giving this status to private schools, they are contributing to the continued
segregation of public schools

KEY: has to be an individualized harm, if we rule otherwise it would allow concerned bystanders to file
law suits…it would make the judiciary into a political body…this is not for the courts to deal with the
claims of concerned bystanders.
 53

ALLEN: this claim of generalized harm

Think of this as 3 separate prongs: must have injury, causation, and redressability…

2nd ISSUE:
Is this injury recognizable in court: (kids aren’t getting a desegregated education)
-this is a very serious injury within our legal system. (this is enough to satisfy the injury prong)
-this is different from the first claim of injury
-this is an individualized harm, this is there kids, not just everyone…limited class.

Injury: generalized grievance is not enough, but particular harm is…

MASS v. EPA

Mass is upset, EPA is not regulating greenhouse gases from cars…EPA made decision they would not
regulate these emissions, Mass is upset saying that EPA has to do this under the statute…congress tells
the agency what to do…Mass is saying EPA is not doing what congress told it to do…

MASS must have standing to bring this claim: show injury, causation, and redressibility.

INJURY HERE: Mass may lose a lot of its coastal property and cause millions of dollars…injury: we are
losing coastline

Claim from EPA: mass isn’t injured, harm may cause a looong time in the future…shouldn’t be worrying
about this.

COURT: this is a severe harm, it threatens sovereignty…this is actual harm..actual because there is
evidence they have already lost some coastline, imminent in the sense that it may not happen
tomorrow, but that its going to get worse…this is certain to happen
-not only do we need an injury that is personal to the plaintiff, but we need an injury that is actual and
imminent.

“a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual
or imminent.”
-this harm is just not shared by everyone…NJ, DE and NY have same harms but its limited.

Is the court acting as a political body or someone adjudicating a dispute?

Allows justices to pick and choose their cases in determining whether there is standing.

Lujan: no actual harm, its just a general claim: like to travel, like to see the animals…maybe if they would
have bought tickets to see the animals then there would have been harm
-general claim of unhappiness that animals disappear is not enough…

-its not actual and imminent unless you say when its going to happen to me
-must be particular to the individual and the harm must be actual and imminent.

If you open it up to far you are going to be enabling the court to act as a political body.
 54

-heart of MASS argument is that it reduces their sovereignty, it’s a reduction in land mass…less area for
people to live on.

Injury is just one of 3 aspects of standing though…still must meet causation and redressability.

CAUSATION:

Allen: causation is attenuated at best…

-unsure of how many racially segregated schools are receiving exemption
-schools may still continue to segregate even if they don’t get the exemption
-don’t know if school administrators or parents would change their behavior. If school more expensive it
still doesn’t mean that the white kid’s parents wouldn’t pay more money to send their kids to these
schools
-too many steps along the way, too many intervening actors
-COURT: we need to have fairly traceable injury…has to be traceable to the alleged conduct by the
defendant…
-intervening third parties eliminate the traceability of the injury to the injuror.

-NO STANDING: cognizable injury, but there is no traceable causation to DF actions here.
-sorry, nothing you can do about this in court…can use the political process to address their concern…
maybe take this to the press or your local representative…that is what the political process is for…
-maybe you can go back to court with another theory…not enough causation on the first try, maybe get
more evidence…

MASS Causation: not regulating the gasses is contributing to the injuries.

EPA: maybe it does contribute, but so does a ton of other things…

COURT: look to only 1 contributing factor in Mass…here there is still intervening decisions though, just
like allen, the rulings may not be consistent

Redressability:
ALLEN: injury actually is redressable, court can get this tax exemption changed…could bring about the
relief requested

MASS:
EPA: if we caused some of this harm, china and india are expanding and emitting greenhouse gasses,
whatever WE do is just a drop in a bucket.

WE need an injury that is concrete, actual or imminent, need causation: alleged injury fairly traceable to
the DF claimed action, need redressability: judicial relief to bring about some change.

Advisory opinion concern: if court can’t help you with your problem, then all it would be doing is issuing
an advisory opinion.

These aren’t cases or controversy, what we have here are not cases or controversies (what court is
basically saying).
 55

Court may be only body that could bring about this change…how are you supposed to know about
causation and redressibility at the pleading stage, this determination is made before discovery, you can’t
get all the docs the govt or df has…this is kind of unfair, kicked out of court because you don’t have
these documents yet.

Is the court letting the merits affect the standing, or just letting the issue affect the standing…
-justices may be fed up with how slow the desegregation process was occurring.
-Mass had 5 judges sympathetic to global warming concerns?
-standards are malleable here, court can infuse its own opinion

STANDING:
Injury, causation, and redressability….these are constitutionally required
2 other doctrines that are not constitutionally required, but doctrines were created to help the court
function. 3rd party standing and general grievances

SINGLETON v. WULFF

Action for declaration of the unconstitutionality of a state statute that excludes abortions that are not
“medically indicated” from the purposes which Medicaid benefits are available to needy persons.

FACTS:
 Missouri enacted a statute that excluded abortions that were not medically indicated from the
purposes from the purposes for which Medicaid benefits were available to needy persons
 The plaintiffs were 2 licensed physicians who performed non medically indicated abortions for
needy women who were eligible for Medicaid payments.
 The physicians brought suit challenging the statute as an unconstitutional interference with the
decision to have an abortion.
 The physicians standing to maintain the suit was challenged.

RULE: a litigant has “standing” to bring suit where the litigant’s relationship with a third party whose
rights he wishes to assert is very close and where there are genuine obstacles to the 3 rd party suing on
its own behalf (only a couple month’s window for a pregnant women to claim injury)
2 distinct questions are presented:
1. Whether PL alleged an “injury in fact” or a concrete interest in the outcome the suit
2. Whether as a prudential matter the PL are proper proponents of the legal rights on which the
suit is based.

DECISION:
 The physician’s alleged injury in fact (a sufficiently concrete interest in the outcome of their suit
to make it a case or controversy subject to the courts Article III jurisdiction
o COURT: if physicians prevail they will benefit by receiving payment for the abortions
o The state will be out of pocket the amount of the payments
 This is classically adversial relationship
 Reasons why the court hesitates to allow a person to seek redress for a 3 rd party:
o Holders of rights may not wish to assert them
o 3rd parties are often the best parties to assert the rights
 2 reasons why physicians could assert these rights
 56

o Looks to relationship between litigant and 3 rd party

o Ability of 3rd party to assert their own right
 CASE AT HAND:
o There is a closeness in relationship to litigants and patients.
 Woman needs Dr. to secure abortion, and a poor woman can not secure an
abortion without the state paying the Dr.
 Woman’s right to abortion is at stake here
 Physician is uniquely qualified to assert these rights for women.
 Need to make sure the 3rd party (or actually harmed) actually wants to bring this
lawsuit, prevent unnecessary adjudication
 They will also raise the best arguments
 This is why the court puts these additional hurdles in the way.
 Is the 3rd party suited to bring suit? Is there a way they depend on each other?
Yes, rights are bound up together, not just strangers, doctors get paid women
get abortion
o Several obstacles to women asserting their rights.
 May be chilled by the fact she wants to protect her privacy
 Woman only has a few months to decide whether to undergo an abortion
HELD: it is appropriate to allow a physician to assert the rights of women patients as against government
interference with an abortion decision.

2 part test for third party standing: closeness between parties and if there is some obstacle to the 3 rd
party bringing the suit themselves.

Must make sure that the obstacle is serious…that’s how you figure out whether the rule applies…must
meet these requirements from singleton to determine 3 rd party standing.

PROHIBITION OF GENERALIZED GRIEVANCES

Prohibition against generalized grievances prevents individuals from suing if their only injury is as a
citizen or a taxpayer concerned with having the government follow the law.
 It is a “prudential principle” preventing standing “when the asserted harm is a generalized
grievance shared in a substantially equal measure by all or a large class of citizens”

UNITED STATES v. RICHARDSON

FACTS:
 Richardson brought an action as a federal taxpayer alleging that certain provisions of the CIA Act
of 1949 violated article 1 section 9 clause 7 of the Constitution, which requires a public
accounting of the receipts and expenditures of public money.
 HOWEVER
o He made no claim that funds were being spent in violation of constitutional limitations
on taxing and spending power.
o RATHER, he was seeking to compel the govt. to give him information on how the CIA
spends its funds
RULE: a taxpayer does not have standing to bring a generalized grievance challenging a statute
regulating a federal agency’s accounting and reporting procedures.
 57

DECISION:
 Frothingham:
o Injury alleged was that the congressional enactment challenged as unconstitutional
would increase the complainants federal income taxes.
o Denying standing, court relied on “minute and remote uncertainty of the impact on the
taxpayer and the failure to allege the direct injury required for standing
 FLAST
o Key question for determining standing is whether the party seeking relief has “alleged
such a personal stake in the outcome of the controversy as to assure concrete
adverseness”
 Court announced a 2 prong test:
 Challenging enactment under the taxing and spending clause of art I
section 8
 Claiming that the enactment exceed “specific” constitutional limitations
imposed on taxing and spending power.
o Reaffirmed frothingham that fed taxpayer cannot use court to
aire his grievances.
 CASE AT BAR:
1. There is no logical nexus between richardson’s status as a taxpayer and the failure of
congress to require disclosure of CIA expenditures
a. He claims without detailed info on CIA expenditures he cannot fulfill his
function as a citizen and member of the electorate
b. This is the kind of general grievance that is common to all members of the
public
c. THUS: he has not alleged that as a taxpayer he will suffer a particular injury from
the operation of the statute.
d. His process for remedy for such is the political process

FLAST v.COHEN

FACTS:
 Flast and other taxpayers alleged that federal funds had been disbursed by federal officials
under the Elementary and Secondary Education Act of 1965 to finance instruction and purchase
of educational materials for sue in religious schools
o This is a violation of the Establishment and Free Exercise clauses of the 1 st amendment.
 Govt. moved to dismiss on the ground that appellants lacked “standing”
 Flast and company alleged standing based solely on their status as taxpayers

DECISION:
 Question of standing is related only to whether the dispute sought can be presented in an
adversarial context and is capable of judicial resolution.
o Emphasis on standing is whether “a person has stake in the outcome of the
controversy” and whether the dispute touches upon the “legal relations of parties
having adverse legal interests”
o No absolute bar in article III to suits by federal taxpayers challenging unconstitutional
federal taxing and spending programs.
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 TAX PAYERS MUST SATISFY A 2 PART NEXUS TEST:

1. Taxpayer must establish a logical link between the status as a taxpayer and the type of
legislation attacked (thus they are limited to challenging exercises of the congressional
power under the taxing and spending clause)
2. There must be a link between the taxpayer status and the precise nature of the
constitutional infringement alleged
a. Taxpayers must show the statute exceeds “specific” constitutional spending
power and not simply that the enactment is generally beyond the powers
delegated to congress by article 1 section 8

HOLDING:
 Flast and company have satisfied both nexuses to support their claim of standing under the test
announced by the court.
o Their constitutional challenge is made to an exercise by congress of its power under the
taxing and spending clause, to spend for the general welfare
o The challenged program involves a substantial expenditure of federal tax funds.
 MADISON
the Establishment clause was designed to be a bulwark against potential abuses of govt power
and that clause of the 1st amendment operates as a “specific” constitutional limitation upon the
exercise of Congress’s taxing and spending power.
DISSENT:
 the majority’s double nexus test does not measure a taxpayer’s personal interest or stake in the
outcome of any suit:
o a taxpayer’s interest in a suit challenging a public expenditure does not vary according
to the constitutional provision under which he states a claim.
o Permitting standing for such public actions will upset the balance of power among the
branches of the federal govt.

*Flast represents a narrow exception to the general rule that “taxpayers do not have standing to bring
generalized grievances about governmental conduct.”
-even in the context of the Establishment Clause, Flast has not be extended beyond challenges to
expenditures.
-Court further limited Flast in Hein: taxpayers lacked standing even under the Establishment Clause.

HEIN v. FREEDOM FROM RELIGION FOUNDATION

ALLEGATION:
 The Establishment Clause has been violated by organizing conferences at which faith based
organizations are “singled out as being particularly worthy of federal funding”
o Conferences sent a message:
 Religious believers are insiders and favored in the political community, and
nonbelievers are outsiders, not full members of the political community.
 Conferences were designed to promote religious community groups over secular ones.
 STANDING: they are tax payers that are opposed to congressional appropriations to advance
and promote religion, which violates the Establishment Clause
 59

ISSUE: claim was that conferences held as part of Bush’s Faith Based and Community Initiatives program
violated the Establishment Clause because Bush and Sec of Edu gave speeches that used religious
imagery and praised faith based programs for delivering social services.

Plaintiffs claim they have standing based on their status as federal taxpayers.
 BUT…being a taxpayer is generally not enough to establish standing
 FLAST was a narrow exception to the rule, in flast it was asserted that the Establishment clause
was violated by a federal law

ISSUE:
 Congress did not specifically authorize the use of federal funds to pay for the conferences or
speeches that PL allege
o INSTEAD they were paid for out of the general Executive Branch appropriations.

APPEALS COURT:
 PL have standing as taxpayers because the conferences were paid for with money appropriated
by congress

FACTS:
 President Bush issued an executive order that created the Office of Faith-Based and Community
Initiatives
o This was a program aimed at allowing religious charitable organizations to compete
alongside nonreligious ones for federal funding
o It also required various executive departments to hold conferences promoting the Faith
based initiative.
 No congressional legislation specifically authorized the creation of these bodies.
o They were created entirely within the executive branch by Presidential order
o These activities are funded through general executive branch appropriations.
 FREEDOM FROM RELIGION FOUNDATION
o Nonstock corporation “opposed to government endorsement of religion.”

REASONING:
 Taxpayer has standing to challenge the collection of a specific tax as unconstitutional
o Being forced to pay this tax causes an immediate economic injury to the individual
RESPONDENTS CLAIM:
o Having paid taxes to the treasury at some point, they have a continuing legal right to ensure the
funds are not used by Govt in a way that violates the constitution.
o This falls within FLAST exception
o “expenditure of govt funds in violation of the expenditure clause
COURT:
o Expenditures at issue in Flast were made pursuant to express congressional mandate and
specific congressional appropriation
o PL in Flast established the requisite logical link between status and enactment attacked
because it was a specific congressional appropriation pursuant to an express
congressional mandate.
o HERE:
o No link between congressional action and constitutional violation
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o Expenditure at issue is not made pursuant to an act of congress

o These expenditures resulted from executive discretion, not congressional action
o HELD ON THIS ISSUE:
o Challenged expenditures were not authorized by congress, no logical nexus between
taxpayer status and legislative enactment attacked.
o FREEDOMS OTHER ARGUMENT:
o Money spent by congress or money spent by the executive is all the same, the injury to
taxpayers in either situation is the injury targeted by the Establishment Clause and Flast-
no money to support religion exacted from taxpayers…
o COURT:
o FLast focused on congressional action, court does not want to extend this holding to
encompass acts of the executive.
o Executive branch is almost always funded by some congressional appropriation,
allowing this interpretation of Flast would subject executive action to be called into
question by any taxpayer under establishment clause.
o SEPERATION OF POWERS CONCERN HERE TOO!
HELD : we leave flast where we found it

o CONCURRENCE (SCALIA):
o Plurality’s distinction is utterly meaningless and Flast should be overruled
 Need to decide cases by rule of law, not show of hands..
o DISSENT:
o Taxpayers suffer injury when executive agencies spend identifiable sums of tax money
for religious purposes, no less than when congress authorizes the same thing.

POLITICAL QUESTION DOCTRINE

NOTES: once taxpayers give money to congress and then congress gives to the executive the relationship
is not close between taxpayer status and the expenditure of money…
-must be someone who has been actually injured by this, and you can challenge a statute…you were
forced to listen to a lecture that was religious in nature and you’ve been harmed maybe that could get
you into court.

-Flast is very limited: because the expenditures were not authorized by a specific congressional
enactment there is no logical nexus to status as a tax payer

Courts concern here: opening the door to too many lawsuits, overstepping bounds by questioning
another branch of govt. We have to limit this, only when congress spends money, no other branch its
applicable…

POLITICAL QUESTION

*Refers to allegations of a constitutional violation that federal courts will not adjudicate and that the
supreme court deems to be inappropriate for judicial review.
 Some constitutional provisions are left to the political branches of govt to interpret and enforce.
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 Defended on separation of powers grounds; constitution is seen as assigning certain provisions

to the other branches of government.
o Minimizes judicial intrusion into the operations of other branches of govt and allocates
decisions to branches of govt that have superior expertise in particular areas.
 Court has long refused to find cases under the “Guaranty Clause” justiciable.
o Cases under Guaranty clause ARE NEVER justiciable.
 BAKER: is same challenge of malapportionment justiciable under the Equal Protection Clause?

BAKER v. CARR

*Mere fact that a suit seeks protection of a political right does not mean it presents a political question.
Guaranty Clause: guarantees the states a republican form of government and they will be protected
from invasion,

HELD: claim here neither rests upon nor implicates the Guaranty Clause so its justiciability is not
foreclosed by prior cases (rests on the equal protection clause)

*It is the relationship between judiciary and federal govt, not between the judiciary and states which
give rise to the “political question.”
*the nonjusticiability of a political question is primarily a function of the separation of powers

We get one person, one vote here…it holds that your vote is just as important as the next, regardless of
the population of your district…this is protected by the equal protection clause, not the guaranty clause.

Policy is left to legislature, court does not want to step on their toes by going against legislatures wishes
in certain areas.

CASES WHERE A POLITICAL QUESTION IS PRESENT: (factors to look at to determine if political question
or not)
 Textually demonstrable constitutional commitment of the issue to a coordinate political branch
 A lack of judicially manageable standards for resolving it
 The impossibility of deciding the case without an initial policy determination calling for
nonjudicial discretion
 The impossibility of resolving it without expressing lack of respect due other govt. branches
 An unusual need for unquestioning adherence to a political decision already made
 The potentiality of embarrassment from a variety of announcements by different governmental
departments on one question.
Claimants are not barred from bringing suit under the equal protection clause provided it doesn’t
conflict with any of the previous factors.

 HOLDING: since the equal protection claim does not require a decision of a political question
and since the presence of a matter affecting state govt. does not render the case nonjusticiable,
the appellants have a proper cause of action

DISSENT
 A long line of cases has held that the Guaranty Clause is not enforceable through the courts
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 The present case involves all of the elements that have made the guaranty clause cases non
justiciable.
 Courts may be impaired in its role as the ultimate organ of the supreme law of the land
o Courts authority rests on public confidence in its moral sanction
o It must be upheld by the court avoiding political matters by not injecting itself into
situations where the political forces are at struggle.
 The decision today empowers the courts to devise the proper composition of the legislatures of
the 50 states.
 Appeal for relief should not be sought in the courts, it should be done through the political
process.

POWELL v. MCCORMICK

FACTS:
 Powell was elected to serve in the House of Representatives, however, pursuant to a House
resolution he was not permitted to take his seat.
 Powell filed suit in District Court
o CLAIM: the house could exclude him only if it found he failed to meet the standing
requirements of age, citizenship and residence contained in Article 1 section 2 of the
Constitution which the house found that Powell met and had thus excluded him
unconstitutionally.
 Previously, a subcommittee had investigated the expenditures of a committee Powell had
headed and found that he and other employees deceived house authorities concerning travel
expenses.
o Also evidence that Powell had advised illegal salary payments to be made to his wife.
 Democratic members-elect met in caucus and voted to remove Powell from his position of
chairman of the committee.
 When the 90th congress met to be sworn in, Powell was told to step aside while the oath was
administered.

HOUSE’S 1st CONTENTION:

 This case presents a political question because under article 1 section 5 there has been a
“textually demonstable constitutional commitment” to the house of the adjudicatory power to
determine Powell’s qualifications.
o House has power to determine who is a qualified member
COURT:
 To make this determination court must look to the constitution.
o What power does the constitution confer upon the house through art 1 section 5

POWELL:
 Constitution provides that an elected representative may only be denied his seat if the House
finds he doesn’t meet one of the standing qualifications expressly prescribed in the Constitution.
 ARGUE HISTORY: records of the debates of the constitutional convention, the commentary from
the post convention, and early congressional applications of article 1 section 5 support his
construction.

COURT:
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 Must determine what the phrase, “be the judge of the qualifications of its own members”
means.
 POWELL is right: historical materials lead to the conclusion that the House only has the authority
to exclude based on standing requirements prescribed by the constitution.
o Had their been less clarity of framer’s intent court would have still resolved the matter
by narrowly constructing the scope of congress’s power.
o HAMILTON: “people should choose who they want to govern them”
 Powell was elected by the people
o MADISON: govt should not limit who the people can select for representatives (must
limit the power to expel)
o Would also nullify the decision to require a 2/3 vote for expulsion.

HELD: the “textual commitment” formulation of the “political question doctrine” does not bar federal
courts from adjudicating Powell’s claim.

FOREIGN POLICY AND THE PQD

“it is error to supposed that every case or controversy which touches foreign relations lies beyond
judicial cognizance.”

GOLDWATER v. CARTER

*President Carter rescinded the United State’s treaty with Taiwan as part of recognizing the People’s
Republic of China
 Senator Goldwater brought a constitutional challenge arguing that the Senate must rescind a
treaty, just as the senate must ratify the making of a treaty.

Rehquist, Stewart and Stevens Concurring with Judgment:

 Question brought by Goldwater is political and therefore nonjusticiable because it involves the
authority of the president in the conduct of foreign relations and the extent to which the Senate
is authorized to negate the action of the president.
 Should be left for resolution by the executive and legislative branches

Constitution expressly provides the Senates power to participate in the ratification of a treaty, but is
silent as to its participation in the abrogation of a treaty.

MUST BE CONTROLLED BY POLITICAL STANDARDS

 It involves foreign relations
 This is a treaty commitment to use military force in the defense of a foreign govt

POWELL:
 Would dismiss the complaint as not ripe for judicial review
 Dispute between congress and the president is not ready for judicial review unless and until
each branch has taken action asserting it constitutional authority
o Judicial branch should not decide issues affecting the allocation of power between the
president and congress until the branches reach a constitutional stalemate
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 Otherwise this would encourage small groups of congress to seek judicial

resolution of issues before the political process has the opportunity to resolve
the conflict.
BRENNAN:
 Concurs in the dismissal
o If congress chooses not to confront the president, its not the court’s job to do so.
o Senate has only considered a resolution declaring that its approval is necessary for
termination of a treaty, no final vote has been undertaken.
 Dissents because this is not a political question.
o Political question doctrine sets forth 3 inquiries:
 Does the issue involve resolution of questions committed by the text of the
constitution to a coordinate branch of govt?
 Would resolution of the question demand that a court move beyond areas of
judicial expertise?
 Do prudential considerations counsel against judicial intervention?
o The answer to each of these questions would require court to decide the case if it were
ready for review

1. There is no textually demonstrable constitutional commitment here

a. No provision explicitly confers this power to the president
b. Article 6 provides that treaties shall be a part of the supreme law of the land, this is a
power of congress.
2. A standard is possible to reach here
a. All the court needs to do is decide whether the president may terminate a treaty under
the constitution without congressional approval
b. This is normal constitutional interpretation
3. Interpretation of the constitution does not imply lack of respect for the other branches of govt.

THERE IS NO POLITICAL QUESTION AT PLAY HERE.

NIXON v. UNITED STATES

ISSUE:
 Whether senate rule XI, which allows a committee of senators to hear evidence against an
individual who has been impeached and to report that evidence to the full senate, violates the
Impeachment Trial Cause of Article 1 section 3

1st Court must decide whether it is “justiciable” or whether it can be resolved in the court
-COURT: NO IT CANNOT

NIXON’S ARGUMENT:
 Senate Rule 21 violates the constitutional grant of authority to the Senate to “try” all
impeachments because it prohibits the whole senate from taking part in the hearing.
FACTS:
 Nixon, a former federal judge in MS was convicted of making false statements to a grand jury
and was sent to prison
 65

 Because he refused to resign from his office as US District Judge he continued to collect his
judicial salary while serving time in prison.
 May 10th the House of Representatives adopted 3 articles of impeachment for high crimes and
misdemeanors.
o First 2 charged Nixon with giving false testimony, 3 rd for bringing disrepute on the
federal judiciary.
 After the House presented the articles to the Senate, the senate voted to invoke its own
impeachment rule 21
o A committee receives evidence and takes testimony and then presents the full senate
with transcripts of the proceeding and a summary of evidence and contested facts.
 Senate voted by more than the constitutionally required 2/3 to impeach Nixon.

COURT:
 Must examine article 1 section 3 to determine the scope of authority conferred upon the senate
by the framers
 Language and structure of clause are revealing
o Word “sole” is of considerable significance
 Senate alone will have authority over who should be acquitted or convicted
 2 reasons why judiciary does not have role in impeachment:
o Framers realized there may be 2 trials, impeachment and criminal
 Keep trials separate so there is no biases
o Judicial review would be inconsistent with checks and balances
 Impeachment is a check on the judiciary by the legislature
NIXON:
 Judicial review is necessary to put a check on the legislature
o Feels legislature will usurp power if unchecked
 Framers saw this, created 2 safeguards
 Impeachment power is divided between 2 legislative bodies
 Needs 2/3 vote to impeach

ALSO LACK OF FINALITY ARGUMENT AND DIFFICULTY FASHIONING RELIEF

 Judicial review of this process could potentially expose the country’s political life to periods of
chaos.
 Could affect legitimacy of successor if president was impeached…his effectiveness would be
impaired while original president’s case was under review.

WHITE AND BLACKMUN CONCURRENCE:

 The framers intended the use of the word “sole” to be a limitation on potential interference by
the House and not on review by the judiciary.
 Further, to say the word “try” does not present a judicially manageable standard is
insupportable where one would intuitively expect that the framers used the word in its legal
sense
SOUTER:
 Agrees this is nonjusticiable political question
Not all judicial interference with the impeachment process is inappropriate and such could be
necessary if the senate were to act in a manner seriously threatening the integrity of its results.
 66

NOTES
Are these justiciability issues so malleable that they can be used to further the political interests of the
judiciary?
Are these standards so malleable that the justice can stay out of things they like, and interfere with
things they don’t like?
-is the same with standing, redressibility and whatnot? Does this just allow the justices to infuse their
own views in the process.
-OR do these doctrines make sense in saying the court has limits, we can’t allow the court to turn into a
political body.

LIMITS ON STATE REGULATORY AND TAXING POWER

HOOD v. DU MOND AG. Of NY

(state has power to protect its residents from menaces to their health and safety or from fraud, but it
does not have the power to burden the flow of commerce for its economic advantage)

ISSUE:
 Whether NY can deny additional facilities to an out of state company to acquire and ship milk in
interstate commerce where the grounds of denial are that the limitation on interstate business
will protect and advance local economic interests.
FACTS:
 Hood was a Boston Milk distributor who obtained some of his supply from producers in NY
 The controversy concerned the opening of an additional plant in NY, which the state sought to
deny. (deny plant will aid local economic interests, additional plant would draw milk supplies
from other processors and deprive local market of adequate supply)

Most relevant decision to date concerning milk litigation came from the Baldwin case:
 NY placed conditions on local sale of milk imported from VT, designed to basically exclude them
from the market
o HERE: the order proposes to limit local facilities for purchase so as to withhold milk from
export.
 Court held in Baldwin that the commerce clause, even in the absence of congressional action,
prohibited this type of regulation.
 COURT: recognized state interest to protect inhabitants against perils to health or safety, but
NOT to promote its own economic advantages by burdening interstate commerce.

CARDOZO in Baldwin:
 The states must sink or swim together; in the long run prosperity is in union not division.
 “the economic objective was the root of the statutes invalidity”
 Such a power would set a barrier to traffic between the states and act as customs duties.
 If NY can guard its farmers against the competition of the cheaper prices of VT, then this
opens the country up to the very rivalries that were meant to be averted by vesting the
commerce power into the federal govt.
 A state cannot use the power to tax or the police power to set up restrictions against
competition; it would clog up the mobility of commerce.
 67

o This sets up a rampart of customs duties designed to neutralize advantages belonging to

the place of origin
Distinction between state ability to shelter its citizens from menaces to health and safety or fraud and its
lack of power to burden the flow of commerce for its economic advantage is deeply rooted in history
and law:
 Once colonies gained independence they drifted towards commercial warfare between each
other.
o States would legislate to procure economic advantages, threatened solidarity of
country.
o One of the sole purposes which led to the drafting of the constitution was to address
the issue of trade between the states.
 The necessity of centralized regulation of commerce among the states was so obvious and
recognized that the commerce clause was hardly debated.
 Established interdependence of the states emphasizes the necessity of protecting interstate
commerce against local burdens.
o States producing natural resources withholding for the use of their own industry would
burden the country substantially.

The system of commerce in place in this country is based on free competition, which was the goal of the
framers.

Traditional arguments for having a dormant commerce clause:

1. There is a historical argument: the framers intended to prevent state laws that interfered with
interstate commerce
2. There is an economic justification for the DCC: the economy is better off if state and local laws
impeding interstate commerce are invalidated
a. “protectionism” is inefficient because it diverts business away from low-cost producers
Political justification: states and their citizens should not be harmed by laws in other states where they
lack political representation. (McCulloch v. MD)

Criticism of the Dormant Commerce Clause:

 No basis in the text of the constitution
 Court has used the commerce clause to make policy-laden judgments that it is ill equipped and
unauthorized to make.
o Whether a particular statute serves a legitimate local public interest
o Whether the effects of the statute on interstate commerce are merely incidental
 Non of the policy laden decisionmaking is proper, rather the court should
confine itself to interpreting the text of the constitution.
 TEXTUAL ARGUMENT:
o Drafters could have included a provision prohibiting states from interfering with
interstate commerce
 Invalidating laws pursuant to the dormant commerce clause should not be a task for an
unelected federal judiciary.

DETERMINING WHETHER A LAW IS DISCRIMINATORY

 68

Balancing test: varies depending on whether the state or local law discriminates against out of staters or
treats in staters and out of staters alike
 If a state is discriminating against out of staters then there is a strong presumption against the
law and it will be upheld only if it is necessary to achieve an important purpose.
 If not discriminatory, then the presumption will be in favor of upholding the law and will be
invalidated only if it is shown that the law’s burdens on interstate commerce outweigh its
benefits.
THRESHOLD QUESTION: whether the state law is discriminatory against out-of-staters.
 Framers were concerned about stopping “protectionist” state legislation

FACIALLY DISCRIMINATORY LAW:

 The law in its very terms draws a distinction between in-staters and out-of-staters

CITY OF PHILADELPHIA v. NEW JERSEY

ISSUE:
 Court has to decide whether a NJ law that prohibits the importation of solid or liquid wastes that
originated or were collected outside the state violates the commerce clause.
FACTS:
 NJ enacted a statute that prohibited the importation of waste which was collected or originated
in another state
 The law was challenged by private landfill owners in NJ

*all objects of interstate trade merit commerce clause protection

 Reject State court’s suggestion that “valueless” out of state wastes deserve no protection
II.
 Many subjects of potential federal regulation escape congressional attention because of their
local character
 In absence of federal legislation, these subjects are open to control by the states so long as they
act within the restraints imposed on the commerce clause.
 Court has consistently recognized evils of “protectionism” and “economic isolation”
o But still recognizes that incidental burdens on interstate commerce may be unavoidable
when state legislates to safeguard the health and safety of its people.

GOAL OF 363:
 Volume of waste is rapidly increasing and the treatment and disposal of this waste continues to
pose a greater threat to the environment
 Space within state landfills is being diminished, and out of state waste is posing a threat to the
health and safety of the public

CRUCIAL INQUIRY:
 Is 363 a protectionist measure or is it a law directed to legitimate local concerns, with effects
upon interstate commerce that are only incidental?

COURT:
 It doesn’t matter what NJ ultimate purpose is (saving its citizens $ or protecting the
environment)
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 IT CANNOT ACCOMPLISH ITS GOALS BY DISCRIMINATING AGAINST COMMERCE COMING FROM

OUTSIDE THE STATE
o Unless there is some reason, apart from the commerce’s origin, to treat them differently.
 HELD: both on its face and in its plain effect, 363 violates the principle of discrimination

Court has in many instances denied a presumably legitimate goal by the states on the ground they
sought to achieve it by the illegitimate means of isolating the state from the national economy.

RATIONAL:
 Today cities in NY and PA find it necessary to send waste to NJ and NJ claims the right to close its
borders to such traffic… BUT tomorrow NJ may find it necessary to send its waste to PA or NY
and when they try to close their borders
o The commerce clause will protect NJ just as it is today protecting NY and PA

DISSENT:
 NJ recognized the health and safety problems associated with the use of landfills in disposing of
wastes

FACIALLY NEUTRAL LAWS

 Can be discriminatory if they either have the purpose or the effect of discriminating against out-
of-staters.
o State law may constitute “economic protectionism” on proof of either discriminatory
effect or discriminatory purpose.

HUNT v. WA STATE APPLES

RULE: a facially neutral law is discriminatory if it has discriminatory effects.

ISSUE: is NC’s facially neutral law prohibiting the labeling of state standard grades discriminatory in its
effects?

FACTS:
 NC required apples sold in state to be packed in cartons carrying only the U.S. Dept of Ag grade
or no grade at all
 But WA, who is the leading apple producer, had developed at a significant cost a system of
grading apples that was more stringent than the USDA standard.
o Because of the importance to the industry to the state, the legislature wanted to protect
the reputation of WA apples
 This standard was regarded throughout the country as superior to the USDA standard.
 This NC regulation presented the WA apple industry with a marketing problem of potentially
nationwide significance.
o WA growers ship nearly 40 million containers in commerce, 500k of which reach NC
o It is industry practice to purchase these containers preprinted with the grades prior to
harvest.
o Since the ultimate destination of the packaged apples are unknown at the time they are
placed in storage, compliance with the statute would have required WA to do away with
the printed labels on the containers.
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 There were alternatives:

o Could have changed marketing practice for NC or do away with preprinted containers
 BUT none of these were good alternatives for the industry…

DC: the statute has the effect of not only burdening interstate sales of WA apples, but also
discriminating against them.

Discrimination takes various forms:

1. Statute’s consequence of raising the costs of doing biz in NC while leaving NC growers
unaffected.
a. NC growers were not forced to alter their marketing practices like the WA growers to
comply with the statute.
b. Increased costs posed by the statute would shield the local industry from competition
2. Statute has effect of stripping away from the WA apple industry the competitive and economic
advantages it has earned for itself through its expensive inspection and grading system.
a. System has gained nationwide acceptance in apple trade
3. By not allowing WA to market its apples under the superior grading system the statute has a
leveling effect which operates to the advantage of local producers.
a. WA sellers would have a market advantage with the grading system, but without the
distinction they have to use the USDA which levels the playing field.

COURT:
 Burden falls on the state to justify the local benefits derived from the statute and the
unavailability of nondiscriminatory alternatives adequate to preserve the local interest at stake.
o NC fails to meet this burden on both levels
o This statute doesn’t protect consumers in NC, it actually deprives them of all the
information that could be available to them in purchasing the apples.
 There are non-discriminatory alternatives to this outright ban
o Could require states that use state grades to also include USDA grades.

ANALYSIS:
 If the balancing test of the burden doctrine alone were used, the burden would be on WA
(challenging the statute) to prove that the burden on interstate commerce outweighed the local
benefit.
 HERE, the court shifted the burden to the state to prove both the local benefits and a lack of
discriminatory alternatives-more stringent than the discrimination doctrine.

EXXON CORP v. MARYLAND

RULE:
 A facially neutral law that burdens some interstate companies with disparate impact is not
discriminatory merely because it imposes such burdens.
FACTS:
 Maryland law prohibited oil companies from operating retail service stations within the state
 Virtually all oil companies were located outside of Maryland
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 The oil companies argued that, therefore, the law had a discriminatory effect on out-of-state oil
companies and impermissibly burdened commerce.
REASONING:
 The statute here creates no barrier against interstate independent dealers, nor does it 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.
 The absence of these factors distinguishes this case from those in which a state law was found
to be discriminatory.
 Interstate commerce is not subjected to an impermissible burden simply because an otherwise
valid regulation causes some business to shift from one interstate supplier to another.
 The commerce clause protects the interstate market, not particular interstate firms.

Analysis if a law is deemed discriminatory

Dean Milk Co.v. Madison, WI

RULE:
 A locality may not discriminate against interstate commerce, even to protect the health and
safety of its people if reasonable alternatives exist which do not discriminate and are adequate
to conserve legitimate local interests.

Dean’s Contention: statute violates the commerce clause and the 14 th amendment

FACTS:
 Dean Milk was an IL corporation engaged in distributing milk products in IL and WI
 A Madison, WI ordinance prohibited the sale of any milk as pasteurized unless it had been
processed and bottled by an approved plant within 5 miles of the city.
 Dean milk had pasteurization plants located 65 and 85 miles outside Madison, so he was denied
a license to sell its milk products within Madison solely because his plants were over 5 miles
away.
o DEAN MILK: this places an undue burden on interstate commerce.

COURT:
 The ordinance erects an economic barrier protecting a major local industry against out of state
competition.
o Plainly discriminates against interstate commerce.
 It must be decided whether the ordinance can be justified in view of the local interest and the
available methods for protecting those interests.
 Reasonable and adequate alternatives exist….
o Madison could send its inspectors to the distant plants
o Could exclude from its city all milk not produced in conformity with standards as high as
those in Madison
o It could use the local ratings checked by the US Public Health Services to enforce such a
provision
*The regulation must yield to the principle that “one state in its dealings with another may not place
itself in a position of economic isolation”
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MAINE v. TAYLOR

RULE: a facially discriminatory law is constitutional where less discriminatory alternatives are
unavailable.

FACTS:
 To protect native fish, Maine prohibited the importation of nonnative baitfish
 Taylor, who was a bait dealer, arranged for the importation of live baitfish and was indicted
under a federal statute making it a federal crime to transport fish in interstate commerce in
violation of state law.
 Taylor moved to dismiss the indictment on the ground that Maine’s law unconstitutionally
burdened interstate commerce.
 MAINE: “there was no less discriminatory alternative to protect the state’s fisheries from
parasites and nonnative species that might be included in the shipments of imported baitfish.”
o District court dismissed Taylor’s motion, court of appeals reversed, SC granted review.

COURT:
 This statute is discriminatory on its face, although it still doesn’t mean its unconstitutional
(restricts interstate trade in the most direct manner possible)
 Maine has the burden of showing that the law both serves a legitimate local purpose and that
this purpose cannot be achieved by any other nondiscriminatory means.

Based on the evidence presented by the experts on behalf of the state of main there was found to be no
less discriminatory way to prevent the significant threats to the fisheries.

Experts (2 significant threats):

1. Wild Fish population would be put at risk by 3 different types of parasites prevalent in out of
state baitfish not common in Maine
2. Could disturb Maine’s aquatic ecology
a. No satisfactory way to inspect shipments of baitfish.

COURT:
 Maine has a legitimate interest in guarding against imperfectly understood environmental risks
 Commerce clause cannot be read as requiring Maine to sit back and wait until potentially
irreversible environmental damage has occurred.

DISSENT:
 Maine is blatantly discriminating against other states, because it has a thriving baitfish
population of its own, but flatly prohibits importation of baitfish from other states.
 The state bears a heavy burden to justify such blatant discrimination
 The ambiguity of the ecological impact should defeat, rather than sustain, a discriminatory
measure.

Balancing test: courts balance the benefits of a law against the burdens that it imposes on interstate
commerce.
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SOUTHERN PACIFIC v. ARIZONA

RULE:
 In deciding whether a state law places an unreasonable burden on interstate commerce the
court must balance the nature and extent of the burden which would be imposed by the statute
against the purposes to be derived from the regulation.

FACTS:
 The Arizona Train limit Law made it unlawful to operate within the state a train of more than 14
passenger cars or 70 freight cars.
 It authorized the state to recover a monetary penalty for each violation
 Arizona claimed that the law had a reasonable relation to the safety and well-being of residents
of the state by preventing train accidents.
COURT:
 Findings show that the operation of long trains is standard practice over the main lines of the
railroads of the United States.
o If the length of trains is to be regulated at all, it must come in the form of a national
regulation which can only be imposed by congress. (for efficiency and economy).
 COSTS BURDEN
o There is a relationship between operating costs and the length of trains.
o By complying with the law it could result in an increase of a million dollars for the
railroads in question.
 EFFICIENCY
o The conversion and reconversion of train lengths at the terminals will cause delays by
breaking up and remaking the longer trains upon entering and leaving the state.
 NO DOUBT THIS IS A BURDEN ON INTERSTATE COMMERCE
o Impedes the movement of interstate trains through the state and imposes a substantial
obstruction to the national congressional policy to promote efficient and economical
railway transportation services
o ALTERNATIVE TO CARRIER
 Conform to the lowest train limit restriction of states
 If one state can control train lengths than so can others…this has the effect of
controlling train operations beyond the boundaries of the state
 NO REASONABLE RELATION TO SAFETY!
o This law makes operation more dangerous
 The danger from having more trains running offsets the potential danger to
having longer trains running.
o COURT:
 The AZ safety measure only affords a slight advantage, not enough to restrict
the free flow of commerce

Analysis if law is deemed non-discriminatory:

 If it treats in-staters and out-of-staters alike, then there is a much less demanding test.
 Non-discriminatory laws are upheld so long as the benefits to the state outweigh the burdens
are interstate commerce.

LOREN PIKE v. BRUCE CHURCH

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RULE:
 A non-discriminatory local safety measure that places burdens on interstate commerce that
clearly exceed the local benefits is unconstitutional
FACTS:
 Bruce Church was found in violation of the Arizona Fruit and Vegetable Standardization Act.
 Act required that all cantaloupes grown in AZ be packed there.
 Bruce Church, who was a farming corporation with operations in CA and AZ sent some of the
cantaloupes that it grew in AZ uncrated and in bulk to one of its packing facilities in CA, about 30
miles away from its operation
o Cantaloupes are highly parishable and this was the closest packing plant to the farm.
 Pike in his official capacity issued an order prohibiting the company from transporting the
uncrated cantaloupes.
 The company faced a $700,000 loss of its 1968 crop if it could not send them to the CA plant.

COURT’S: GENERAL RULE (for determining validity of state statute affecting interstate commerce)
 When the statute regulates both in state and out of state parties even handedly to effectuate a
legitimate local 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 local
benefits.
o If a legitimate local interest is found, the question becomes one of degree
o And whether it could be promoted with a lesser impact on interstate activities.
ARIZONA’S INTEREST
 This act is not designed to protect consumers from contaminated or unfit goods
 Its purpose is to protect and enhance the reputation of growers within the state
o These are legitimate state interests
COURT:
 State’s interest in having the cantaloupes identified as AZ cantaloupes cannot constitutionally
justify the requirement that the company build a $200,000 packing plant in AZ.
 The nature of that burden outweighs the local benefit
 When states require business operations to be performed in state that could be performed
more efficiently out of state, the courts will scrutinize the situation more intensely.
 This statute puts Church in a straitjacket
o This incidental consequence of a regulatory scheme could be upheld if a more
compelling state interest was involved.
o
BIBB v. NAVAJO FREIGHT LINES
RULE:
 A non-discriminatory local safety measure that places a burden on interstate commerce that
clearly exceeds the local benefits is unconstitutional
ISSUE:
 Does an Illinois statute requiring the use of a certain type of rear fender mudguard on trucks
and trailers operated on the highways of that state conflict with the commerce clause?
Appellees: interstate motor carriers challenge the constitutionality of the act.
FACTS:
 DC: this places an unreasonable burden on interstate commerce.
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o because it made the conventional straight mudflap, which is legal in 45 states, illegal in
Illinois and because taken together with an Arkansas statute requiring the use of
straight mudflaps it rendered the use of the same vehicle equipment in both state
impossible
COURT:
 the power of states to determine safety measures for their highways has been broad and
pervasive.
 Courts will often uphold these measures, and if there are alternative ways to solving a problem,
the policy decisions are left to the state legislature.
TEST:
 Unless it can be concluded on the whole record that the total effect of the law as a safety
measure in reducing accidents and casualties is so slight or problematic as not to outweigh the
national interest in keeping interstate commerce free from interferences, the statute must be
upheld.
REASONING:
 The heavy burden the Illinois statute places on interstate movement of trucks and trailers
passes the permissible limits for safety regulations
 COSTS
o Add to carriers costs of doing business since every truck entering interstate commerce
would have to have the contoured mudflap because of the impossibility of determining
at what point a truck may enter Illinois.
 SAFETY (introduced by IL)
o IL: this is a safety precaution to prevent throwing of debris
o BUT: contour flap possess no advantages over the straight flap
 Evidence that contour flap creates previously unknown hazards to the roadway
 It heats up the break drum and decreases the effectiveness of brakes.
 Trucks would require extensive work if operated in both AR and IL
o They would have to change mudflaps upon entering the respective states, which could
be 2 to 4 hours of labor. And could involve welding (not good for army trucks w/ explos)
 INTERFERES WITH INTERLINE
o Interferes with the interchanging of trailers between an originating carrier and another
carrier.
 This is where you change trailers rather than unload the cargo into another
truckl.
 This is especially important when dealing with perishables.

2 exceptions to dormant commerce clause

1. When congress approves the state law
2. Market participation exception
a. A state may favor its own citizens in receiving benefits from governmental programs or
in dealing with government owned business.
b.
WESTERN SOUTHERN v. CA

ISSUE:
 Presents the question of the constitutionality of retaliatory taxes assessed by the state of CA
against Western and Southern Life insurance (an OH corporation)
 76

SECTION 685:
 Imposes a retaliatory tax on out of state insurers doing business in CA, when the insurer’s state
of incorporation imposes a higher tax on CA insurers doing business in that State , than CA
would otherwise impose on that States insurer’s doing business in CA

COURT:
 No judicial decisions limit the authority of Congress to regulate commerce among the states as it
sees fit.
o “congress may confer upon the states an ability to restrict the flow of interstate
commerce that they would not otherwise enjoy.
o If congress ordains that a state may freely regulate an aspect of interstate commerce,
any action taken by a state within the scope of that authorization is rendered
invulnerable to commerce clause challenge.
CASE AT BAR:
 Congress removed all commerce clause limitations on the authority of the state to regulate and
tax the business of insurance when it passed the “McCarran-Ferguson Act”

WESTERN’S ARGUMENT:
 The McCarran-Ferguson Act does not permit “anticompetitive state taxation that discriminates
against out of state insurers”
COURT: finds no such limitation in the language or history of the act.
 ACT:
o Section 1: business of insurance is a public interest, any silence by congress shall not be
construed to impose a barrier to the regulation of taxation
o Section 2: the business of insurance shall be subject to the laws of the states which
related to the regulation or taxation of such business
HELD:
 Must reject Western’s commerce clause challenge, the McCarran-Ferguson Act removes entirely
any commerce clause restriction upon CA’s power to tax the insurance biz.

MARKET PARTICIPATION EXCEPTION

 If the state is literally a participant in the market, such as with a state-owned business, and not a
regulator, the dormant commerce clause does not apply.
o Discrimination against out of staters is allowed that otherwise would be impermissible.

REEVES v. WILLIAM STAKE

ISSUE:
 Whether the state of South Dakota, in a time of shortage, may confine the sale of cement it
produces solely to its residents, without violating the commerce clause.
FACTS:
 In 1919 SD build its own plant to produce cement
 By the 1970’s some 40 percent of its output was going to out of state distributors
 Reeves was an out of state distributor that purchased almost all of its cement from the plant for
the past 20 years.
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 BUT in 1978 there was a nationwide shortage of cement and the Plant decided to reaffirm its
policy of supplying all SD customers first and with the remaining cement they would distribute
on a first come first serve basis.
 Reeves was hit hard and unable to find another supplier, so they filed suit against the Plant
challenging the policy of preferring SD citizens and seeking injunctive relief.

COURT:
 The commerce clause responds principally to state taxes and regulatory measures impeding free
private trade in the national marketplace.
 There is no indication of a constitutional plan to limit the ability of a state itself to operate freely
in the free market, which is what SD is doing here.
 The state occupies the role of guardian and trustee for its people
o It is long recognized that the manufacturer engaged in an entirely private business is
free to choose who he will do business with.
 State proprietary activities are often burdened with the same restrictions imposed on private
market participants, so states in this instance should share the same freedoms from federal
constraints
 Regulating in this instance is better a task for congress than the courts

DISSENT:
 This policy represents precisely the kind of economic protectionism that the commerce clause
was intended to prevent.
o SD has ordered that the state cement plant must turn away out of staters until all SD
orders are filled.
 SD may provide cement for its public needs without violating the commerce clause
o Does not agree that SD may withhold cement from interstate commerce in order to
benefit private citizens and businesses.
o There is a need to ensure unrestricted trade among the states, that has been recognized
since the drafting of the constitution.
 Application of the commerce clause should turn on the nature of the govt. activity involved.
o If a state enters the private market and operates a commercial enterprise for the
advantage of its citizens, it should not evade the constitutional policy against economic
protectionism

WHITE v. MASS
o Mayor of Boston issued executive order that required all construction projects funded in whole
or in part by city funds to be performed by a work force consisting of at least half boston
residents.
o HELD: does not violate the commerce clause
o city expended only its own funds for the contracts, it was a market participant.

SOUTH-CENTRAL TIMBER DEVELOPMENT v. ALASKA

FACTS:
o In 1980, the Alaska Dept of Natural Resources published a notice that it would sell 49 million
board feet of timber in the following month
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o The proposed contract provided that:

o “primary manufacture within the state of Alaska will be required as a special provision
of the contract.”
 Which meant, The successful bidder must partially process the timber prior to
shipping it outside the state
 This does not limit the export of unprocessed timber though, owned by the
state
o PURPOSE OF REQUIREMENT:
o To protect existing industries, provide for the establishment of new industries, and
derive revenue from all timber sources, and manage the State’s forests on a sustained
yield basis.
o STATE ALSO CHARGES a significantly lower price for the timber than it otherwise would.

PETITIONER (SOUTH-CENTRAL DEVELOPMENT)

o Alaska corporation engaged in the business of purchasing standing timber, logging the timber,
and shipping the logs into foreign commerce, primarily to Japan.
o They do not operate a mill in Alaska, they customarily sell unprocessed logs.
o They then brought INJUNCTION:
 ARGUE: the requirement violated the dormant commerce clause.
COURT:
o If a state is acting as a market participant, rather than a market regulator, the dormant
commerce clause places no limitations on its activities.
o
ALASKA ARGUMENT:
o Alaska’s entry into the market should be viewed exactly as the same type of subsidy to local
interests that he court found acceptable in Alexandria Scrap
COURT:
o When MD became a participant in scrap market it was a purchaser of scrap; ON THE OTHER
HAND Alaska participates in the market, BUT imposes conditions downstream in the timber-
processing market.
o Alaska isn’t subsidizing the timber processing market as MD was subsidizing scrap metal
o STATE IS MORE THAN MERE SELLER OF TIMBER
o Seller usually has no say or no interest in the product after sale.
o HOWEVER, payment for timber in this situation does not end the obligation of the
purchaser…purchaser cannot do what he pleases with the timber right away.
o If the state directly subsidized the timber-processing industry the purchaser would have an
option of taking advantage of the price cut by processing in state, or foregoing these benefits
and exporting the unprocessed timber.
o AK makes the choice for him though! If he buys the timber from the state he is not free
to take the timber out of state prior to processing.
o THE MARKET PARTICIPANT DOCTRINE PERMITS A STATE INFLUENCE A DISCRETE IDENTIFIABLE
CLASS OF ECONOMIC ACTIVITY IN WHICH IT’S A MAJOR PARTICIPANT
o It allows the state to impose burdens on interstate commerce within the market but not
to go any further (AK is imposing conditions after the sale, that has an effect outside the
market….in the timber-processing market)
 Alaska is a direct participant in the timber market, but NOT THE PROCESSING
MARKET
 79

o the doctrine is not carte blanche to impose any conditions that the state has the power
to do.
o THE LIMIT OF THE MARKET PARTICIPANT DOCTRINE MUST BE THAT IT ALLOWS A STATE TO
IMPOSE BURDENS ON COMMERCE WITHIN THE MARKET IN WHICH IT IS A PARTICIPANT, BUT
NOT FURTHER.
o This provision has a substantial regulatory effect outside the timber market, it burdens
the processing market as well.
o State is attempting to govern private, separate economic relationships of trading
partners.
HELD:
o state may not avail itself of the market participant doctrine to immunize its downstream
regulation of the timber-processing market in which it is not a participant

DISSENT:
o the distinction drawn in the plurality opinion between market participation and market
regulation is unconvincing and artificial.
o AK could have chosen a number of constitutionally valid ways of requiring the buyers of
its timber to process it within the state, all of which are the same as the contractual
provisions held invalid.

PRIVILEGES AND IMMUNITIES CLAUSE

TOOMER v. WITSELL

ISSUE:
o Suit to enjoin as unconstitutional the enforcement of several South Carolina statutes governing
the commercial shrimp fishing in the 3 mile maritime belt of the coast of the state.
STATUTE:
o Section 3300: “waters in that area shall be a common for the people of the state to fish”
o Section 3379: requires payment of a license fee of $25 for each shrimp boat owned by a
resident, and $2,500 for each one owned by a non-resident.
APPELLANTS:
o 5 individual fishermen who are all residents of Georgia and a non-profit fish dealers’
organization incorporated in FL.
o CONTENTION: the statute is not meant to conserve shrimp, but to exclude non-residents
and create a commercial monopoly for South Carolina residents.
o Statute therefore violates privileges and immunities clause and equal protection clause
of 14th amendment.

COURT: purpose of Privileges and Immunities clause:

o Help fuse into one nation a collection of independent, sovereign states.
o Designed to insure that a citizen of state A who ventures into State B has the same privileges of
that state as B does.
o Without this provision the Republic would have remained a league of states, and not the
union it is today.
o LONG AGO DECIDED THAT THE CLAUSE GUARANTEES TO CITIZENS OF STATE A the ability to do
business in state B on terms of substantial equality.
 80

PRIVILEGES AND IMMUNITIES CLAUSE IS NOT ABSOLUTE

o Must be a substantial reason for the discrimination beyond the mere fact they are a citizen of
another state.

INQUIRY FOR EACH CASE:

o Is there a substantial reason for discrimination and does the degree of discrimination bear a
close relation to the reason

CASE AT BAR:
o SC plainly discriminates against non-residents
o SC argues that the goal was to conserve shrimp by heading off an impending threat of excess
trolling…
o Record casts doubt on this
o SC assumes that any means adopted to attain a valid objective squares with the P and I clause…
o BUT, purpose of that clause is to outlaw classifications based on non-citizenship unless
there is something to indicate that the non-citizens constitute a peculiar source of evil
at which the statute is aimed.

UNITED BUILDING OF CAMDEN v. CITY OF CAMDEN

ISSUE:
o A municipal ordinance of the city of Camden requires that at least 40% of the employees of
contractors and subcontractors working on city construction projects be Camden residents.
o UNITED BUILDING challenges this as violation of the P and I clause.

COURT: 1ST ADDRESS THE ARGUMENT ACCEPTED BY NJ SUPREME COURT, “THE CLAUSE DOES NOT
APPLY TO A MUNICIPAL ORDINANCE SUCH AS THIS”
2 separate contentions are advanced in support of this position
1. The clause only applies to laws passed by a state
a. Quickly rejected…a municipality is a political subdivision of the state which it derives its
authority
b. City derives its authority from the state, so it can no more accomplish an
unconstitutional objective than a state could.
2. The clause only applies to laws that discriminate on the basis of state citizenship
a. Does not apply to an ordinance that discriminates solely on basis of municipal residency.
b. Clause is phrased in terms of state citizenship, places citizens of different states on same
footing as citizens from other states.
i. Municipality residency classifications do not give rise to same concerns.
COURT:
o NO. can’t read the clause so literally.
o Whether a citizen is residing in a municipality or state the person will still be excluded.
o Out-of-staters venturing into NJ will not enjoy the same privileges of those in NJ
 Granted neither can some NJ residents enjoy this privilege, but they can remedy
the situation at the polls.
 Out of staters do not have this opportunity
o HELD:
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o Ordinance is not immune from constitutional review at the behest of out of staters just
because it excludes some in staters

APPLICATION TO CASE AT BAR:

Entails a 2 step inquiry:
1. Court must decide whether the ordinance burdens one of the privileges and immunities
protected by the clause
2. Must determine whether an out of state resident’s interest in employment on public works
contracts in another state is sufficiently “fundamental” to the promotion of interstate harmony
to fall within purview of Privileges and immunities clause.

COURT:
o Pursuit of a common calling is one of the most fundamental of the privileges protected by the
clause.
o BUT, just because it discriminates does not end the inquiry……
o Law can discriminate against out of state residents where there is a substantial reason
for the difference in treatment.
CAMDEN ARGUMENT:
o Ordinance is necessary to counteract grave economic and social ills.
o Spiraling unemployment, decline in population, reduction in biz
o Resident hiring program is designed to increase the number of employed persons living in
Camden and to stop “middle class flight”
o ALSO, non-Camden residents employed on city public works projects are the source of evil (they
don’t live there but work there) the statute is aimed at.
o “they live off Camden, without living in Camden”
o The ordinance is carefully constructed to alleviate evil without harming non-residents, who still
have access to 60% of jobs.

HELD:
o Impossible to justify Camden’s claims on the record as it now stands..
o there has been no trial, no findings of fact have been made.
o Case must be remanded to NJ supreme court

What are privileges and immunities: constitutional rights, economic interests, ability to earn a livelihood

LESTER BALDWIN v. FISH AND GAME OF MONTANA

ISSUE: issue as to the constitutional validity of disparities between residents and non residents in
Montana’s state hunting license system.

FACTS:
o In 1975 MT residents could purchase a license for solely elk for $4
o The non resident, however, in order to hunt elk was required to purchase a combination license
at a cost of $151 (for 1 elk, 2 deer)
o 1976 the resident license for elk went up to $9, and the non resident was still required to
purchase the combination license but for $225 now.
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o Residents were not required to purchase a combination license, but if they did it only cost them
$30.
o The non-resident thus paid 7 and a half times as much as the resident, and if he wanted
to hunt only elk it was 25 times.

APPELLANT:
o Baldwin is a MT resident who is a hunting guide.
o Majority of his customers are from out of state who come to Montana to hunt big game.
o Carlson, Huseby, Lee and Moris are MN residents who have been hunting big game in MT for the
past couple years and wish to continue to do so.
o They are upset with the disparity in price between resident and non-resident licenses
o FILE SUIT CLAIMING: declaratory and injunctive relief and for reimbursement, in part, of
all fees already paid
 MT licensing scheme violates the Privileges and immunities clause
COURT:
o When the privileges and immunities clause has been applied, its been to cases involving
unreasonable burdens on out of staters in pursuit of common callings, ownership of private
property, and access to state courts.
o NEVER SUGGESTED THAT STATE RESIDENCY MAY NEVER BE USED TO DISTINGUISH AMONG
PERSONS.
o For example voting or running for elective office (some distinctions merely reflect that
this is a nation composed of individual states)

QUESTION BEFORE COURT:

o Does the distinction made by MT between resident’s and nonresidents in establishing access to
elk hunting threaten a basic right in a way that it offends the Privileges and Immunities clause?
o NO….
o Elk hunting by out of state residents is a recreational sport, it is not a means to the
nonresident’s livelihood.
 Appellants are not totally excluded from hunting in MT
o Appellants interest in sharing the limited resource of hunting on more equal terms with
MT residents does not fall within the purview of the privileges and immunities clause.
 not a basic maintenance or well-being of the union.

Supreme Court NH v. PIPER

ISSUE: NH limits bar

1. no evidence to support NH claim that nonresidents might be less likely to keep abreast of local
rules and procedures
a. if a lawyer is going to pay the annual dues then chances are they intend to practice
within in the state
b. simple residency requirement underinclusive
i. permits lawyers to move away from state and still retain their membership in
bar. (former resident is not going to maintain a more active practice in NH than
a nonresident who does not live in state)
2. no reason to believe that a nonresident lawyer will conduct practice in a dishonest manner.
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a. Nonresident’s interest in maintaining a good reputation provides the same incentive to

maintain high ethical standards as they do for residents
b. Lawyer will always be concerned with his reputation no matter where he practices
i. Nonresident lawyer can still be disciplined
3. More merit to claim that nonresident member of the bar may at times be unavailable for
proceedings.
a. If you are going to take the bar in NH and pay dues chances are you will leave near NH.
b. State can also protect this interest through less restrictive means, may require any
lawyer who resides a distance away to retain a local attorney who will be available on
short notice.
4. Most lawyers who become members of a state bar will be likely to perform their share of pro
bono work
a. Nonresident still may be required to represent indigents

HELD:
o NH does not advance a “substantial reason” for its discrimination against nonresident applicants
to the bar, nor does it demonstrate that the discrimination practiced bears a close relationship
to its objectives.

DISSENT:
o Practice of law is not like other business conducted across state lines.
o The practice of law varies in each state because the states establish their own laws.
o THUS, a state has a substantial interest in having its lawyers, like its legislators and
judges, be members of its constituency.
 Rule 42 accomplishes this goal.
o MAJORITY’S LESS RESTRICTIVE MEANS ANALYSIS IS NOT APPROPRIATE IN THE CONTEXT OF
PRIVILEGES AND IMMUNITIES CLAUSE
o The court can always think of another “less restrictive” approach which is judicial
second-guessing of he legislature.
o ANOTHER INTEREST: THE NEED TO HAVE ATTORNEYS AVAILABLE FOR THEIR CLIENTS IN
EMERGENCY SITUATIONS AND IN THE COURSE OF REGULAR LITIGATION.
o The use of local co-counsel raise more problems than it solves.
 Have to explain things to client, allocating responsibility may prove
troublesome.
o HELD:
o NH has more than a substantial reason for requiring its attorneys to be residents

State laws can be preempted, can be found to be unconstitutional

-how much are we a nation