Constitutional Law I Outline - Final Exam Outline

8/3/2019 Constitutional Law I Outline - Final Exam Outline

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A) Historya. Oldest writtenconstitution in existence today (Englands is not one written document).b. 2/3 ofconstitutions in existence today have been adoptedsince 1970.c. 1765French and Indian War left England broke and they looked to colonies for

money.d. These taxes led to Revolution because there were no colonial representatives inParliament resulting in taxation without representation.

e. England held that ParliamentrepresentedallEnglishmen (includingcolonists).f. First unitedeffort by colonists toprotestwas Stamp Act Congress.g. United States Constitution went into effect in 1789 (proposedin 1787).h. Solepurpose ofConstitutional Convention was to reviseArticles of Confederation.i. Bulk offramers were lawyers.j. Strengths:

i. opening words(we the people) all governments power originates frompeople (in England, government had all power) and government only has power

we give to it;ii. sets up unique balance of power between existing state governments andnational governmentit created (birth offederalism);

iii. government power is definedinbroad brush strokes rather than minute detailenabling document to survive for so long (changes with times);

iv. separation of powers (three separate Articles) and checks and balances;v. contained provision for orderly change through amendment process (but not too

easy)k. Weaknesses:

i. slavery was not abolished (would have kept document from being ratified);ii. there was no Bill of Rights (framers were afraid that by enumeratingrights, they

would exlude those rightsthat werent enumeratedand framers consideredConstitution to be document limitinggovernment powers so that they may notinfringerights ofcitizens);1

iii. concept oflimited powerdoesnt go a long way in protecting individualrights.l. 4 distinctfunctions our Constitution performs:

i. establishesnational government (Art. 1,2,3, 6; Amend. 12, 16, 17, 20, 22, 23,25);

ii. federalism - controls relationship between national governmentand stategovernments (Art. 1 Sec. 8 and 10; Art. 3 Sec. 2; Art. 4, Amend. 10, 11, 18, 21);

iii. defines andpreservespersonal liberty and deals with issues ofequality (Art. 1Sec. 9 and 10; Art. 3 Sec. 2 and 3; Art.4 Sec. 2; Amend. 1-10, 13, 14, 15, 19, 24,26); and

iv. contains provisions for government toperpetuate itself through orderly change(Art. 5).

B) The Federal Judicial Powera. The Authority for Judicial Review

1James Madison wrote Bill of Rights (Amendments1-10) shortly after Constitution was ratified.


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i. Marbury v. Madison established Supreme Courts authority for judicialreview.

b. Authority for Judicial Review of State Judgmentsi. Martin v. Hunters Lessee established that the Supreme Courts authority to

review the highest state courts decisions.

C) Limits on the Federal Judicial Powera. Three primary limits onjudicial authority exist:i. interpretive limitshow Constitution should be interpreted;

ii. congressional limitsability of Congress to restrict federal court jurisdiction; andiii. justiciability limitsjudicially created doctrines limiting types of matters federal courts

can decide.b. Interpretive Limits

i. HowConstitution should be interpretedand extentto which method ofinterpretation should limitjudiciaryarises in all areas ofconstitutional law. Usuallydetermined between holding strictly to the constitution or by looking beyond the four

corners of the documentc. Congressional Limitsi. Article IIIprovides that Supreme Court shall have appellate jurisdiction, both as to

Law and Fact, with such Exceptions, and under such Regulations as the Congress shall

make.ii. Ex Parte McCardle establishes that congress has the power to repeal Supreme

Courts appellate jurisdiction. Here congress repealed the Supreme Courts

appellate jurisdiction over circuit courts.iii. Separation of powerscongress cannot be acting judicially (determining the

outcome of cases) and must specifically just be taking away appellate jurisdiction.A) Justiciability (Cases and Controversies)

a. Doctrines of Justiciability: An Overviewi. In large part from the Case and Controversy requirement of Art. III, the Court has

inferred various justiciability doctrines which limit the Courts jurisdiction.ii. Some of these doctrines are constitutionally based and cannot be overridden legislatively.

Others are based on prudential concerns and may yield to legislative acts.b. Advisory Opinions

i. Federal courts will not render Advisory Opinions because there is no adversarial conflictto bring the controversy into strict focus.

c. Standingi. Constitutional Requirements (Allen v Wright)

1. The party bringing a lawsuit must have Standing, i.e. it must show that it hassuffered an injury in fact,

2. which was caused by the defendants conduct (causation); and3. that a favorable judicial ruling would redress that harm. (redressability)

ii. Allen v. Wright determines that for a party to have standing they must have ajudicially cognizable injury and such injury must be fairly traceable to the

government conductiii. Prudential Requirements(Congress can change)

1. NO 3rd Party Standing


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a. Generally a plaintiff must assert his own legal rights and interests, andcannot rest his claim to relief on the legal rights or interests of 3 rd parties.

i. Exceptions:1. Singleton v. Wulff establishes that an action can be brought

by a 3rd party

a.

Relationship between plaintiff and 3

rd

party isinextricably bound with the activity the litigantwishes to purse (Close relationship to 3rd Party)

b. The ability of the 3rd party to assert his own right isobstructed. (likelihood 3rd party can sue on its ownbehalf)

2. Craig v. Borena. Vendors and those in a like position are permitting

to resist the efforts at restricting their operations byacting as advocates of 3rd parties who seek access totheir market.

2.

Taxpayers Standing Rulea. Frothingham v. Mellon (General Rule)i. Federal taxpayers do not have standing to challenge acts of

congress solely on the basis of their taxpayer status.b. Exception (Flast v. Cohen)

i. Logical link or nexus between taxpayer and particular enactment1. Must allege that there is a violation ofCongresss Article I,

Section 8(1) taxing and spending powers (appropriation ofyour funds)

ii. Logical link between status as a taxpayer and specificconstitutional violation

1. If suit is brought then they must show that there is aspecific limitation on the spending power (EstablishmentClause)

iv. Ripeness1. Ripeness conveys the requirement that a dispute must have reached a point where

the challenged governmental action has a direct adverse impact on the individualmaking the challenge. Self-executing acts are ripe once enacted; those that requiresome further action before a legal consequence attaches may be morecontroversial. At times, courts have held that such laws are not ripe until thefurther action has occurred.

2. Two Prong Test to Prevent premature adjudicationi. Fitness of the issues for judicial resolution

ii. Hardship to the parties by withholding the decision right nowv. Mootness

1. Must be a live controversy at all stages of federal court litigation.a. Exceptions

i. Wrongs capable of repetition but evading review1. A case is not dismissed, even if it is moot, if the injury is

likely to occur in the future.


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a. Pregnancy Case and Election Casesii. Voluntary cessation (suits for injunctive / declaratory relief)

1. A case is not dismissed as moot, if the defendantvoluntarily ceases the allegedly improper behavior. Thecourt is free to return to it at anytime if the defendant

restarts such improper behavioriii. Class Action Suits1. A properly certified class action suit may continue even if

the named plaintiffs claims are rendered moot.vi. Political Questions (Is it proper for Judicial Resolution?)

1. Political questions are issues which the federal courts will not address becausetheir subject matter is deemed to be not fit for judicial resolution.

2. Baker v Carr determines six ways in which the courts should consider theirrelationship to the legislative and executive branches, not the states.

a. Look at language of Constitution and see if the issue is given to anotherbranch of government for interpretation

b.

Not easily handled by Judicial decisionc. Determination that is not of Judicial discretiond. Will deciding the cause a lack of respect for the other branchese. Unusual need for adherence to a political question already madef. Causes Embarrassment of US to foreign entities

B) Article ICongressional Powersa. Implied Powers under the Necessary and Proper Clause:

i. The Constitutions structure suggests the existence of implied powers beyond thoseenumerated in the Constitution. InMcCulloch v. Maryland,17 U.S. (4 Wheat.) 316(1819), Chief Justice Marshall held that the Constitution implicitly authorized Congressto take the means necessary to give effect to the powers granted.

1. The Federalist Papers suggested that Marshalls conclusion was consistent withMadisons intent (see No. 44).

ii. In addition the Necessary and Proper Clause provided textual support for Marshallsconclusion.

1. Through an elaborate and ingenious argument, Marshall argued that the Clauseexpanded rather than limited Congress enumerated powers and conferred power

to take action which was useful even though not indispensable.iii. Marshal Established EndMeans Test:

1. The test for action under the Necessary and Proper clause was stated as follows:Let the end be legitimate, let it be within the scope of the constitution, and all

means which are appropriate, which are plainly adapted to that end, which are notprohibited, but consist with the letter and spirit of the constitution areconstitutional.

iv. The Necessary and Proper Clause has proved to be a source of considerable additionalpowers. It authorizes action regarding not only the powers set forth in Article I butthroughout the Constitution.

v. Necessary and Proper clause must always be tied to an expressed power as reasonfor its use. Article 1(8)18

b. S
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i. Commerce Power (Article 1(8)3)ii. Spending Power

iii. Section 5 of 14th Amendmentc. Commerce Clause (Initial Era -1990)

i. Introduction1.

The Commerce Clause constitutes the principal domestic power of the federalgovernment. The interpretation of the Commerce Clause has changed over time.

ii. Early 19th Century 1890: Broadly Interpreted; Rarely Used1. Marshalls Conception2. In Gibbons v. Ogden,22 U.S. (9 Wheat.) 1(1824), Chief Justice Marshall

articulated a broad vision of the Commerce Clause.a. Commerce extended beyond navigation to include commercial

intercourse. Everything involved with the movement or the effectuation ofcommerce

b. Regulate involved the power to prescribe the rule by which commercecould be governed. No limitations other than those prescribed by the

constitution plenaryc. Among the states means concerning more than one stateiii. 1890s to 1937 Narrowly Defined

1. United States v. E.C. Knight Co.a. Holding: No. Commerce does not include manufacturing of goods meant

to travel interstate.2. Carter v. Carter Coal Co.

a. Holding: No. Purely local activities are outside Congress commercepower.

iv. 1937 to 1992 Broadly Interpreted1. Court expansively definedscope ofcommerce power and refused to use Tenth

Amendment as limiton Congress power.2. Key Decisions Changing the Commerce Clause Doctrine

a. NLRB v. Jones & Laughlin Steel Corp. Defines what it means to affectcommerce

i. Holding: Yes. Congressional power to regulate interstatecommerce extends to regulations of intrastate activities that mayburden or obstruct interstate commerce.

ii. Analysis: Affecting commerce means in commerce orburdening or obstructing commerce or free flow of commerceor having ledor tending to leadto labor dispute burdening orobstructing commerce or free flow of commerce. Congressauthority to deal with such burdens is plenary, and reaches tosource of burden even if it is intrastate activity.

b. Wickard v. Filburn Establishes Substantial effects testi. Holding: Yes. Congress commerce authority extends to all

activities having substantial effect on interstate commerce,including those that do not have such substantial effectindividually but do when judged by national aggregate effects.

3. Civil Rights Cases
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a. The Modern Commerce Clause jurisprudence followed fromDarby andWickardand featured extensive deference to Congress.

b. The 1964 Civil Rights Act rested on the Commerce Clause. The Courtupheld the Act inHeart of Atlanta Motel v. United States,379 U.S. 241(1964) even though Congress used the Commerce Clause to address the

moral evil of racial discrimination in public accommodations. Used endsmeans testc. Heart of Atlanta Motel, Inc. v. United States Substantial Effects test

usedi. Holding: Yes. Racial discrimination in public accommodations

exerts substantial burden and harmful effect upon interstatecommerce.

d. Katzenbach v. McClung, Sr. and McClung, Jr. used ends means testi. Holding: Yes. Restaurants serving food that moved in interstate

commerce are subject to Act.4. Rational Basis Test

a.

A judicial standard of review that examines whether a legislature had areasonable and not anArbitrarybasis for enacting a particular statute.v. The Tenth Amendment Between 1937 and the 1990s

1. Darbys approach to Tenth Amendment, it is but truism, was followed until1976 inNational League of Cities v. Usery which was subsequently overruledbyGarcia (below):

2. National League of Cities v. Userya. Holding: No. Congress does not have authorty to regulate states as

employers. Pursuant to Tenth Amendment, Congress could not exerciseits power under Commerce Clause toforce its choices upon states as tohow essential decisions regarding conduct of integral governmentalfunctions were to be made.

3. Garcia v. San Antonio Metropolitan Transit Authoritya. Holding: Yes. Congress has full authority under Comerce Clause to

regulate traditional functions of state and local governmentsnotwithstanding Tenth Amendment.

b. Analysis: Courts have struggled with how traditionalfunction is to bedistinguished from nontraditional function. Attempt to draw suchboundaries is unworkable and inconsistentwith established principles offederalism because it invites unelected judiciary to make decisions aboutwhich state policies itfavors and which ones it dislikes. Thus,NationalLeague of Cities v. Usery is overruled. Framers believed statesovereignty could be maintainedby structure they adopted: Senate inwhich each state was given equal representation regardless of itspopulation and electoral college that gave states power to choose electors.

vi. 1990s and on Narrowed1. United States v Lopez: Back to constraints in congresss powers under the

commerce clause2. Congress can only affect

a. Channels of Interstate Congress
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b. Instrumentalities of interstate commerce (People or things in interstatecommerce)

c. Those activities having a substantial relation to interstate commerce orSubstantial Effect

i. Economic Activity: Intrastate activity is such that would affectbroader economyii. Non-Economic: Jurisdictional Effect is effected as such that itwould affect the broader economy

3. United States v. Lopeza. Holding: No. Gun-Free School Zones Act is unconstitutional exercise of

commerce power.b. Analysis: Congress has power to regulate only: 1) channels of

commerce; 2) instrumentalities of commerce; and 3) actions thatsubstantially affect interstate commerce.

4. New York v. United States (1992)a. Holding: No. Congress may not commandeer legislative process of states

in order to force them to adopt federal regulatory program.b. Analysis: Congress has plenary power to regulate such interstatecommerce as radioactive waste, but take title" provision of Act violatesTenth Amendment and exceeds Congress's power under CommerceClause. Since provision offers States choice between twounconstitutionally coercive alternatives -- either accepting ownership ofwaste or regulating according to Congress' instructions -- provision liesoutside Congress' enumerated powers and is inconsistentwith TenthAmendment.

5. Printz v. United States (1997)a. Holding: No. Congress is not empowered to require state and local law

enforcement officials to administer federal regulations. Allowing federalgovernment to draft police officers of states into its service wouldincrease itspowers far beyond what Constitutionintends. Act effectivelytransferred executive branch's responsibility to administer federal lawsto thousands of officials who were left to implement program withoutmeaningful presidential control

vii. Congress trying to establish power to regulate interstate commerce.a. Enumerated Powerb. Necessary and properc. Does it violate constitutional provision

2. Principles of avoidance by courtsa. Avoid question of constitutionalityb. If they do have to formulate a constitutional law they tailor it as narrowly

as possible

d. The Taxing and Spending Poweri. Direct and Indirect Taxes

1. Direct Taxes: Article 1(2) &(9):Taxes that can be by apportionment only, taxes onreal estate.

2. Indirect Taxes: Article 1(8)(1)


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ii. Article I Section 8 states Congress shall have Power To lay and collect Taxes, Duties,Imposts and Excises, to pay Debts and provide for common Defence and generalWelfare; but all Duties, Imposts and Excises shall be uniform throughout United States.

iii. For What Purposes May Congress Tax and Spend?iv. Is Congress limited to taxing and spending only to carry out other powers specifically

enumerated in Article I, or does Congress have broad authority to tax and spend forgeneral welfare? Butler adopts latter view.1. Two issues inButler:

a. Scopeof Congress spending power (remains good law) andb. Whether Tenth Amendment is limiton it (no longer followed).

2. United States v. Butler (1936)a. Holding: No. Congress may not use taxing or spending powers to force

compliance in area where Constitution does not give Congressindependent power to regulate. Congress is authorized to appropriateand authorizespending forgeneral welfare under Article I, Section 9,Clause 7. This power is not limitedby enumerated powers but is

separate and distinctfrom enumerated powers. Thus, Congress haspower to tax and spend, limitedonly by requirement that it be forgeneral welfare. While Act might have been withinCongress' power totax and spend for general welfare, Act was unconstitutional on TenthAmendment grounds because it was designed to regulate agriculture,activity reserved to states. Tax, appropriation of funds raised, anddirection for their disbursement werepermissible means tounconstitutional end, to regulate agriculture.

3. Sabri v. United States (2004)a. Holding: Yes. Under Spending Clause, Congress is authorized to

appropriate federal funds for general welfare and use all rational meansnecessary and proper to further its spending power. Congress may useNecessary and Proper Clause to use wide range ofmeans to achieveconstitutionally enumeratedends. Statute is rationally related tofederal governments goal ofprotecting integrity of federal funds.

v. Conditions on Grants to State Governments1. Congress may place conditions on grants to state and local governments,even

as to areas that Congress might otherwise not be able to regulate , so long asconditions are expressly stated and so long as they have some relationship topurpose of spending program.

2. South Dakota v. Dole (1987)a. Yes. Use of spending power is subject to three requirements: 1) must be

used for general welfare; 2) conditions on receipt of funds must beunambiguous; 3) conditions must be related to federal interest in particularnational projects or programs being funded; and 4) is there anotherconstitutional that provides an independent bar to the conditional grant offederal funds

e. Congress Powers Under the Post-Civil War Amendmentsi. After Civil War, three amendments were added to Constitution:


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1. Thirteenth Amendmentprohibits slavery and involuntary servitude except aspunishment for crime, applies to private conduct;

2. Fourteenth Amendmentprovides all persons born or naturalized in UnitedStates arecitizens and no state can abridgeprivileges or immunities of suchcitizens; nor may states deprive any person oflife, liberty, or property without due

process of law or deny any person ofequal protection of laws; and3. Fifteenth Amendmentdeclares right of citizens of United States to vote shallnot be denied or abridged by United States or by any State on account ofrace,color, or previous condition of servitude.

4. All three amendments provide that Congress has power toenforce them byappropriate legislation (to enact civil rights legislation).

ii. Whom May Congress Regulate Under the Post-Civil War Amendments?1. Under 2 ofThirteenth Amendment Congress may prohibit privateracial

discrimination.2. However, Congress cannot regulate private behavior under 5 ofFourteenth

Amendment.

3.

United States v. Morrison (2000)a. Holding: No. Congress may not regulate private conduct pursuant toFourteenth Amendment.

iii. What is the Scope of Congress Power?1. Two views as to scope of Congress powerto enforce under5 of 14th

Amendment:a. Congress may only prevent or provide remedies for violationsofrights

recognized by Supreme Court and cannot expand scope of rights orprovide additional rights; or

b. Congress may interpret Amendment to expand scope of rights or tocreate new rights by statute where Court has not found them inConstitution, but Congress cannot dilute or diminishconstitutionalrights.

2. Katzenbach v. Morgan and Morgan2a. Holding: Yes. Congress may enact laws stemming from its Fourteenth

Amendment enforcement power that increase rights of citizens beyondwhat judiciary has recognized.Analysis: 5 is positive grant of legislativepower authorizing Congress to exercise its discretion in determining needforand nature of legislation to secureFourteenth Amendmentguarantees. UnderMcCulloch v. Marylandstandard (rational basis test),Act was "plainly adapted" to furthering Equal Protection Clause and itsremedies constituted means consistent with letter and spirit ofconstitution.

3. City of Boerne v. Flores3a. Holding: No. Congress may not use 5 to define substantive scope of

constitutional rights.b. Analysis: Congress' power under 5 extends only to enforcing provisions

ofFourteenth Amendment. This power is remedial. Design of

2 adopted first view3 adopted second view


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Amendment and text of 5 are inconsistentwith suggestion thatCongress has power to decree substance ofFourteenth Amendment'srestrictions on States. Legislation which alters meaning ofFreeExercise Clause cannot be said to be enforcing Clause. Congress doesnot enforce constitutional right by changing what right is. It has been

given power to enforce, not power to determine what constitutesconstitutional violation. Were it not so, what Congress would beenforcingwould no longer be, in any meaningful sense, provisions ofFourteenth Amendment.

f. Congress Power to Authorize Suits Against State Governmentsi. Background on the Eleventh Amendment and State Sovereign Immunity

1. Eleventh Amendment grants sovereign immunity to states, which means statescannot be sued in federal court by its citizens or citizens of another state.

2. Three ways around Eleventh Amendment to hold statesaccountable in federalcourt:

a. state officers may be sued in federal court (Ex Parte young);b. states may expressly waive their immunity; andc. Congress waives may authorize suits against state governments if it:

i. Expressly states as such, andii. Is acting pursuant to 5 of Fourteenth Amendment

3. Congress Power to Authorize Suits Against State Governmentsa. Basic Rule: Congress May Authorize Suits Against States Pursuant

Only to 5b. Seminole Tribe of Florida v. Florida

i. Holding:No. Congress may not abrogate states immunity for thispurpose. Such abrogation is permitted only where it is necessaryto enforce rights of citizens guaranteed under Fourteenth

Amendment.4. Cases Denying Congress Authority to Act Under 5 to Authorize SuitsAgainst States

a. In three cases between 1999 and 2001, Court found federal statutes couldnot be used to sue state governments because laws did not fit withinscope of Congress 5 power:

b. Florida Prepaid Postsecondary Education Expense Board v. CollegeSavings Bank and United States

i. Analysis: Congress must 1) show history or pattern ofunconstitutional activitybystate giving rise to need forremedial or preventative federal regulation and 2) limit scope

of remedy, making it proportionate to constitutional violationsgiving rise to need for enforcementc. Kimel v. Florida Board of Regents

i. Holding: No. Acts substantive requirements must be congruentwith and proportionate to unconstitutional actions of state.Remedy does not fit the wrong

ii. Analysis: Received RationalBasis Review. ADEA containedclear statement of Congress'intent to abrogate States'


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immunity. However, in light ofindiscriminate scope of ADEA'ssubstantive requirements, and lack of evidence of widespreadand unconstitutional age discrimination by States, ADEA wasnot valid exercise ofCongress' powerunder 5.

d. Board of Trustees, University of Alabama v. Garretti.

Holding: No. Congress had not identified history and pattern ofunconstitutional employment discrimination against disabled bystates sufficient to abrogate States' immunity.

ii. Analysis: Received RationalBasis Review. States were notrequired by Fourteenth Amendment to make specialaccommodations for disabled, so long as their actions towards suchindividuals had rational basis. Thus, ifspecial accommodationsfor disabledwere to be required, they would have had to comefrompositive law and not through Equal Protection Clause.Congress had not identified history and pattern ofunconstitutional employment discrimination by states against

disabled on which 5 legislation was required to be based. Evenifpattern of discrimination were shown, however, rights andremedies in ADA were not congruent and proportional totargeted violation given ADA's sweeping requirements.

5. Congress Greater Authority to Legislate Concerning Types ofDiscrimination and Rights that Receive Heightened Scrutiny

a. Supreme Court uses heightened scrutiny for some types ofdiscrimination and for fundamental rights. For example,discrimination based on race or infringement of fundamental rightsmust meet strict scrutinyit must be necessary to achieve compellinggovernment purpose.

b. Some types ofdiscrimination must meet intermediate scrutinytheymust be substantially related to achieving substantial governmentpurpose.

c. Congress has more authority to act under 5 when dealing with types ofdiscrimination and rights that trigger heightened scrutiny.

d. Nevada Department of Human Resources v. Hibbsi. Analysis: Congress validly exercised its power under 5 of

Fourteenth Amendment by enacting prophylactic legislation inorder to prevent and detergender-based discrimination inworkplace. States' recordofunconstitutional participation in,and fostering of, gender-based discrimination in administrationof leave benefits was weighty enough tojustify enactment ofprophylactic 5 legislation. This case targets genderdiscrimination, which is subject to heightened constitutionalscrutiny rather than rational-basis review applicable to issues ofdisability and age discrimination. Because states bear higherconstitutional burden to justify gender classifications underheightened scrutiny, it is easier for Congress to establish patternof constitutional violations, as it is with racial classifications.


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FMLA was congruent and proportional to its remedial object,and could be understood as responsive to, or designed to prevent,unconstitutional behavior.

e. Tennessee v. Lanei. Holding: No. ADA constituted valid exercise of Congress's

authority. To abrogatestates Eleventh Amendment immunity,Congress must have unequivocally expressedits intent toabrogate thatimmunity and do so under valid grant ofconstitutional authority.

ii. Congress Power to Authorize Suits Against State Governments in State Courts1. Eleventh Amendment has been interpreted to barsuits against state

governments infederal courts. Congress also cannotauthorize suits againststate governments in state court, even on federal claims, without their consent.

a. Alden v. Mainei. Holding:No. States sovereign immunity extends to suits in state

courts.

ii.

Analysis: Neither Supremacy Clause nor enumerated powers ofCongress authorized Congress to subject nonconsenting states toprivate suitsfor damages in state courts. Sovereign immunityof states neither derivesfrom nor is limited by terms ofEleventhAmendment.

C) The Federal Executive Powera. Article II Powers Summary

i. Section 11. Executive powers are vested in the president

ii. Section 21. Commander in Chief2. Reprieves and Pardons3. Treaties (2/3 Senate Advice and Consent)4. Appointment of Ambassadors, etc. (Advice and Consent5. Recess Appointments

iii. Section 31. State of the union2. Recommend Laws3. Receive Ambassadors4. Faithfully execute the laws

b. Inherent Presidential Poweri. Introduction

1. If President has explicit constitutional authority for particular conduct, thenissue is whether President is acting within scope of granted power and whetherPresident is violating some other constitutional provision.

2. Ifstatute authorizes Presidents conduct, question is whether law isconstitutional.

3. When may President act withoutexpress constitutional or statutoryauthorization?


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4. Some argue President has inherent authority not specifically delineated inConstitution because Article II does not limitPresident to powers hereingranted.

5. Some argue he has no powers not enumerated since unenumerated authoritywould be inconsistentwith Constitution creating government oflimited authority.

a.

Youngstown Sheet & Tube Co. v. Sawyerb. Holding: Yes. President does not have inherent authority to orderinvoluntary surrender of private property to government.

c. Analysis: Presidential power exerted here could not be sustained asexercise of President's military power because it was outside theater ofwarand it is Congressduty to raise and supply armed forces. Seizurecould not stand because Congress had exclusive constitutional authority tomake laws necessary and proper to carry out powers vested by

Constitution. There is no explicit statute or actwhich authorizesPresident to act in this manner. Not only is it unauthorized, but Congressrefused to actin such manner to begin with, in regards to Taft-Hartley's

legislative history. President cannot orderpolicy; he can only suggestit.d. Concurrence: Three categories into which each of Presidents actionsmay fall: 1) actions have maximum force and authority when he actspursuant to express or implied authorization by Congress; 2) whenCongress is silent, Constitution grants President certain power to actindependently or concurrently with Congress unknown area; and 3)power is at its lowestwhen he acts contrary to will of Congress, expressor implied. Seizure of mills falls under third category.

ii. The Scope of Inherent Power: The Issue of Executive Privilege1. One of most important issues concerning inherent power of President is whether

and under what circumstances President can invoke executive privilege.2. Executive privilege refers to ability of President to keep secret conversations

with or memoranda to or from advisors.3. Constitutiondoesnotmentionauthority, but Presidents have claimedit

throughout history, claiming it necessary to receive candid advice and toprotectnational security.

a. United States v. Richard M. Nixon, President of the United Statesi. Analysis: Issues relating to production of documents in pending

criminal case werejusticiable and were properly heard oninterlocutory appeal in case involving President. Because specialprosecutor had demonstrated specific need for evidence sought byway of subpoena, it was proper to compel production and toexamine material in camera. Legitimate needs of judicialprocessoutweighedexecutive privilege. Executive Must assertmilitary diplomatic or national security interest and be specific

c. The Authority of Congress to Increase Executive Poweri. Two views ofseparation of powers:

1. separation of powers is appropriately resolved, whenever possible, betweenPresident and Congress, and ifbranches agree, courts only rarely shouldinvalidate their actions;


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2. separation of powers is constitutionally mandatedand therefore envisionscrucial judicial role in enforcing its requirements.

a. William J. Clinton, President of the United States v. City of New Yorki. Holding: No. If President wishes to exercise his veto power he

must veto bill in its entirety.

ii.

Analysis: In effect, President has amended two already enactedActs of Congress by repealingportions of each. Repeals ofstatutes must conform with Article I. Cancellation authority isdifferentfrom veto power because it occurs afterbill becomeslaw. Constitutional silence on subject ofunilateral Presidentialaction that either repeals or amends parts of duly enacted

statutes is equivalent to express prohibition. Thus, cancellationspursuant to Act had no legal force or effectandfailed to satisfyprocedures set out in Article I, 7.

d. The Constitutional Problems of the Administrative Statei. One of most dramatic changes in American government since Constitution was written

has been growth ofadministrative agencies.ii. These agencies exercise all ofpowers of government: legislative, executive, andjudicial.

1. The Non-Delegation Doctrine and Its Demisea. Principle that Congress cannotdelegate its legislative power.b. A.L.A. Schechter Poultry Corp. v. United States

i. Holding: No. Legislature may not delegate executive branchunfettered authority to make law.

ii. Analysis: Act prescribed no constitutional method or procedurefor ascertaining unfair methods of competition. Instead ofprescribing rules of conduct, Act authorized making of codes to

prescribe them. Discretion of President in approving orprescribing codes was virtually unfettered and, thus, code-making authority conferred was unconstitutional delegation oflegislative power.

c. Panama Refining Co. v. Ryani. Holding: No. Delegation of power to executive branch must be

specific and limited.d. SincePanama (1935), every delegation has been upheldby Court, no

matter how broadand even delegation without criteria.e. Whitman v. American Trucking Assn., Inc.

i. Holding: No. CAA properly delegated legislative power to theEPA.ii. Analysis: CAA, which required EPA to set air quality standards atlevel to protect public health with adequate margin of safety, fitcomfortably within scope ofdiscretion permitted by precedent.Federal legislation need not establish determinate criterion thatsufficiently limitadministrative discretion. Statutory mandate toestablish air pollutant standards that is no more or less than


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necessary to preserve public health falls within legitimatedelegation of administrative discretion.

f. Congress must have an intelligible principle (congress gives sufficientdirection) when delegating to administrative agencies

iii. The Legislative Veto and Its Demise1.

In 1930s, Congress created legislative veto as checkon actions ofadministrativeagencies.

2. Congress included in statutes provisions authorizing Congress or one of its housesor committees to overturn agencys action by doing something less thanadopting new law.

a. Immigration and Naturalization Service v. Jagdish Rai Chadhai. Holding: Yes. Legislative action is not legitimate unless there is

bicameral approval and presentment to President.ii. Analysis: House's action pursuant to statute was legislative in

function and did not fit within any exceptions authorizing oneHouse to act alone. As result, House's action was subject to

certain checks on legislative power contained in Article I, such asbicameral requirement, presentment to President, andPresidential veto. Congress must either abidebydelegationofauthority, which was enacted through proper channels, orexpressly revoke it.

b. Important Note: When congress can act alonei. House of Representatives alone has the power to impeach officers

including Presidentii. Senate alone has power to conduct trial after impeachment and

convictiii. Senate alone has power to approve or disprove presidential

appointmentsiv. Senate alone has power to ratify treaties negotiated by president

iv. Checking Administrative Power1. Congress can controladministrative agencies through statutes, can overturn

agency decisions by statute by following prescribed procedures for bicameralismandpresentment, and controlsbudgetofagencies.

2. Presidentchecksadministrative agencies through appointmentand removal.3. The Appointment Power

a. Article II 2 provides President shall nominate, and by and with adviceand consent of Senate, shall appointAmbassadors, otherpublic ministersand consuls,judges of Supreme Court, and all officers of United Stateswhose appointments are not herein otherwise provided forand whichshall be established by law: but Congress may by law vest appointmentof such inferior officers, as they think proper, in President alone, to courtsof law, or in hands ofheads of departments.

b. Alexia Morrison, Independent Counsel v. Theodore B. Olsoni. Facts: Special Division appointed independent counsel to

investigate high-ranking government official. Official claimedappointment of independent counsel was unconstitutional.


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ii. Procedural History: Appeals held appointment of independentcounsel was unconstitutional.

iii. Issue: Whether Constitution requires President to exercise sole andexclusive control over appointment of all executive officers?

iv. Holding: No. President does not have exclusive authority toappoint executive officers.v. Analysis: Act did not violate Appointments Clause becauseindependent counsel is inferior officer because she is subject toremoval by higher executive branch official, she is empoweredonly to perform limited duties, and her office is limited injurisdiction and tenure.

4. The Removal Powera. There is no provision ofConstitution concerning Presidents authority

to remove executive branch officials.b. In general, President may remove executive officials unless removal is

limitedby statute.

c.

Congress may limit removal both if it is office where independence fromPresident is desirable and if law does notprohibitremoval but, rather,limitsremoval to instances where good cause is shown.

5. The Impeachment of Andrew Johnsona. Congress passed Tenure in Office Act to prevent Johnson from removing

key members of cabinet when he took over as President afterassassination of Lincoln.

b. Johnson removed Secretary of War in violation of this Act.c. House voted Articles of Impeachment but vote in Senate was one short of

two-thirds necessary for removal and thus Johnson completed his term asPresident.

d. Myers v. United Statesi. Issue: Whether, under Constitution, President has exclusive power

ofremoving executive officers whom he has appointedby andwith advice and consent of Senate?

ii. Holding: Yes. President was empowered to remove postmasterfrom his appointment.

iii. Analysis: In absence of constitutional or statutory provisionotherwise, President could by virtue of his general power ofappointmentremoveofficer on ground power of removalinheredin power to appoint, even though he was appointedby and withadvice and consent of Senate.

e. Morrison v. Olsoni. Facts: Ethics in Government Act provided for appointment of

independent counsel to investigate alleged wrongs by Presidentand other high-level executive officials.

ii. Issue: Whether Act is invalidunder separation of powers?iii. Holding: No. Act did not violate separation of powers principle.iv. Analysis: Act did not violate separation of powers by increasing

power of one branch at expense of another. Instead, even though


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President could not directly remove independent counsel, personholding office was still Executive branch officer, not undercontrol of either Congress or courts.

D) Separation of Powers and Foreign Policya. Congresses Powersi. Article I (8) Enumerated Powers

1. Clause 3Regulate foreign commerce2. Clause 4Naturalization3. Clause 10Define and punish piracies offenses against law of nations4. Clauses 11-16Declare war, raise army, provide navy, regulate navy, calling

forth a militia, organize and discipline militia.b. Presidents Powers

i. Article II1. President is Commander in Chief of armed forces2. Shall have the power to make treaties (advice and consent of senate)3. Appoint diplomats (advice and consent of senate)4. Receive ambassadors

c. Are Foreign Policy and Domestic Affairs Different?i. United States v. Curtis-Wright Export Corp.

1. Holding: Yes. Nondelegation doctrine does not bar Congress from delegatinggreat authority and discretion to President in conduct of foreign affairs.

2. Analysis: There isfundamental difference in role of government in foreignaffairs as opposed to domestic affairs. Federal government has bothconstitutional and inherent authority to conduct foreign affairs as it sees fit.President is sole representative to foreign nations. Therefore, power to makedecisions regarding international affairs was vested in President, especially in

areas that could lead to embarrassmentofor security issues fornation. Inaddition, President is better able than Congress tojudge conditions in foreigncountries.

d. Treaties and Executive Agreementsi. Article II, 2 states President shall have power, by and with advice and consent of

Senate, to make treaties, provided two thirds of Senators present concur.ii. Major constitutional issue that has arisen concerns authority of President to use

executive agreements rather than treaties for foreign policy commitments.iii. Executive agreement is agreement between United States and foreign country

effective when signed by President and head of other government; no Senateratification needed.

iv.

Although Constitution does not mention executive agreements, it is well establishedthey are constitutional and can be used for any purposetreaties can be used for.1. Dames & Moore v. Regan, Secretary of the Treasury

a. Holding: Yes. President has power to settle claims by citizens againstforeign governments.

b. Analysis: President has authority to terminate legal proceedings and settlepending claims of U.S. citizens against foreign governments where suchaction is necessary to resolution of major foreign policy dispute.


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Congress has implicitly approvedpractice ofclaim settlementbyexecutive agreement.

e. War Powersi. Article I grants Congress power to declare war and authority to raise and support

army and navy. Article II makes PresidentCommander-in-Chief. Basic, unresolved

questions exist concerning these powers:1. What constitutes declaration of war?2. When maypresidentuseAmerican troops in hostilities without Congressional

approval?a. Congress adopted War Powers Resolution to address these two

questions.b. Constitutionality ofWar Powers Resolution has notbeen tested.c. It is quite possible that every challenge to Presidents actions as

violating War Powers Resolution will be dismissedonjusticiabilitygrounds, either for lack of standing or as political question.

E) Presidential Power and the War on Terrorisma. When may ExecutivedetainAmerican enemy combatants?b. When, if at all, are military tribunals constitutional?

i. Detention1. Hamdi v. Rumsfeld

a. Facts: U.S. citizen was detained in Afghanistan for allegedly cooperatingwith Taliban. Government labeled him enemy combatant and withhelddue process.

b. Procedure: Appeals dismissed citizen-detainees petition for writ ofhabeas corpus.

c. Issue: Whether President, under certain circumstances, has authority todetain citizens declared by government to be enemy combatants?d. Holding: Yes. Individual due process rights must be balanced againstnational security.

e. Analysis: Authorization for Use of Military Force (AUMF) authorizeddetention of individuals in citizen-detainee's circumstances and satisfiedrequirement that detention bepursuant to Act of Congress. Thus, as longasAmerican troops are at battle with Afghanistan, citizen-detaineescontinued detention is lawfullyauthorizedby AUMF. However, whileGovernment maintains legitimate interest in removing enemycombatants from military conflict as matter of national security,erroneously detained persons possess equally important liberty

interests. Citizen-detainee, seeking to challenge his classification asenemy combatant, was entitled to receive notice of factual basis for hisclassification, and fair opportunity to rebut Government's factualassertions before neutral decisionmaker. These due process rightscannot, however, restrictGovernments ability to administer militaryconflict under exigent circumstances. Burden-shifting schemebalancesindividuals due process rightto challenge Governments


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classification whileprotectingGovernments ability to make reasoneddecisions during time of war.

f. Judgment: Vacated and remanded for further proceedings.g. Dissent in Part: AUMF has not been shown to authorize this detention.

There was no Congressional authorization for this detainment, so

detainment was unlawful.h. Dissent: Only way to accomplish this detainment is to suspendhabeuscorpus.

i. Dissent: Because Executive has exercised his discretion to exercise hiswar powers according to his military expertise upon Congressionalauthorization to declare citizen-detainee as enemy combatant, Court isill suitedto question thisjudgment.

ii. Military Tribunals1. In November 2001, President Bush issued order for military tribunals. Order for

military tribunals raises many basic questions:2. Does President, as Commander-in-Chief, have authority to create military

tribunals or is creating courts entirely Congressional power underConstitution?3. Can government suspend provisions ofBill of Rights in trying noncitizens

accused of terrorism or supporting terrorism?4. More generally, how should Constitution be interpretedduring war time?

a. Ex Parte Quirini. Holding: No. President could try them in military tribunal without

jury.ii. Analysis: It has long been accepted practice by our military

authorities to treat those who, during time of war,passsurreptitiously from enemy territory into our own, discarding their

uniforms upon entry, for commission of hostile acts involving

destruction of life or property, as unlawful combatantspunishable as such by military commission. Specificationsufficiently charged offense against law of war, which thePresident was authorized to order tried by military commission.Articles of War, enacted by Congress, recognize militarycommission as appropriate tribunal for trial and punishment ofoffenses against law of war not ordinarily tried by courts-martial.Germans were alleged to be unlawful belligerents, and underArticles of War, they were not entitled to be tried neither in civilproceeding, nor byjury.

b. Hamdan v. Rumsfeldi. Facts: Yemen citizen and driver was captured by militia forces

during invasion of Afghanistan and sent to Guantanamo Bay. Hewas charged with conspiracy to commit terrorism, and Bush madearrangements to try him before military commission.

ii. Procedural History: Appeals reversed decision granting writ ofhabeas corpus.


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iii. Issue: Whether military commission convened to try him waslegal?

iv. Holding: No. Military commission to try plaintiff is illegal andlacking protections required under Geneva Conventions andUnited States Uniform Code of Military Justice.

v.

Analysis: Neither act of Congress nor inherent powers ofExecutive laid out in Constitution expressly authorizedsort ofmilitary commission at issue in this case. Absent that expressauthorization, commission had to comply with ordinary laws ofUnited States and laws of war. Geneva Convention, as part ofordinary laws of war, could therefore be enforcedalong withstatutory Uniform Code of Military Justice. Hamdan's exclusionfrom certain parts of his trial deemed classified by militarycommissionviolatedboth of these, and trial was therefore illegal.

vi. Judgment: Reversed and remanded for further proceedings.F) Checks on the Presidenta. President can be held accountable by informal mechanisms such as through pressure of public

opinion and checks by Congress such as through budget process.b. Two primary formal mechanisms exist: civil suits and criminal proceedings against President,

and impeachment.c. Suing and Prosecuting the President

i. When may President be civilly sued? There have been two Supreme Court casesdealing with this issue:

1. Richard Nixon v. A. Ernest Fitzgeralda. Holding: Yes. President is immune from suit from his official acts.b. Analysis: President must be empowered with maximum ability to deal

fearlessly and impartially with duties of his office. Grant ofabsoluteimmunity to President would not leave President with unfettered power.There are still protections against Presidential misconduct. President issubject to constant scrutiny by press. Vigilant oversight by Congress alsoserves to deter presidential abuses of office, as well as to make crediblethreat ofimpeachment. Other incentives to avoid misconduct includedesire to earn reelection, need to maintain prestige as element ofpresidential influence, and President's traditional concern for his historicalstature.

2. William Jefferson Clinton v. Paula Corbin Jonesa. Holding: No. Sitting President is not immune from suit for nonofficial

acts.b. Analysis: President argued that in all but most exceptional cases,Constitution requires federal courts to delay such litigation untilPresident's term ends, and that allowing this action to proceed would betantamount toJudicial interference with Executive Branch. This argumentrests neither on history norprecedent. It seems unlikely that deluge ofcivil litigation for past wrongdoings will ever engulf presidency. Also,separation of powers does not bar every exercise of jurisdiction over


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President. Thus, separation of powers did not require federal courts tostay all private actions against President until he leaves office.

3. No case has addressed whether sitting President can be criminally prosecuted.4. On one hand, there is strong argument that impeachment and removal should be

sole remedy against President since criminal prosecution inevitably would

interfere with Presidents ability to perform his duties.5. On other hand, no person is above law. This justifies allowing President to becharged and tried for crimes like all others.

d. Impeachmenti. Article II 4 provides President, Vice President, and all civil officers of United States

shall be removed from office on impeachment for, and conviction of, treason, bribery,or other high crimes and misdemeanors.

ii. Article I 2 provides House of Representatives has sole powerto impeach.iii. Article I 3 gives Senatesole powerto try impeachments and prescribes that no

person shall be convictedwithout concurrence of two thirds of members present.iv. Two major issues remain unsolved:

1.

What are high crimes and misdemeanors?2. Whatprocedures must be followed in impeachment and removal proceeding?a. There is no Supreme Court case addressing either, nor is there likely to be

since challenges to impeachment and removal pose non-justicablepolitical questions.

G) Limits on State Regulatory and Taxing Powera. Limits on state power derive from existence of national government and of other states.b. Two possibilities when considering whether state or local law is invalidated:

i. Congress has actedbecause ofSupremacy Clause, if there is conflict betweenfederal law and state or local law, latter is deemed preempted;

ii.

Congress has not actedeven though there is not preemption, state and local laws canbe challenged under two principles:1. Dormant Commerce Clausestate and local laws are unconstitutional if they

place undue burden on interstate commerce; and2. Privileges and Immunities Clauselimits ability of states to discriminate

against out-of-staters with regard to constitutional rights or important economicactivities.

c. Two arguments about appropriate degree ofjudicial oversight or ofjudicial deference to stateand local governments:

i. state and local governments should be unfettered by federal government as much aspossible, preemptionrestrictedto situations where Congress has expressly preempted

state and local laws, and there should be no Dormant Commerce Clause;ii. it is essential for judiciary to preserve federal nature of American government,preemption is not something to avoid, and Dormant Commerce Clause is essentialrestriction on abuses by state governments to preserve free flow of economy.

H) Preemption of State and Local Laws


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a. Article VI provides Constitution and laws and treaties made pursuant to it are supreme law ofland. If there is conflict between federal and state law, federal lawcontrols and state law isinvalidatedbecause federal law is supreme.

b. No clear rule for deciding whether state or local law should be invalidatedon preemptiongrounds. Supreme Court has identified two major situations where preemption occurs:

i.

federal law expressly preempts state law orii. preemption is implied by clear congressional to preempt state or local law; three types:1. field preemptionscheme of federal regulation is sopervasive as to make

reasonable inference that Congress left no room for States to supplement it;2. conflicts preemptioncompliance with both federal and state regulations is

physical impossibility; or3. where state law stands asobstacle to accomplishment and execution of full

purposes andobjectives of Congress.c. Express Preemption

i. Whenever Congress has authority to legislate, Congress can make federal lawexclusivein afield. Thus, some federal laws contain clauses that expressly preempt state and

local laws.ii. Lorillard Tobacco Co. v. Reilly1. Holding: Yes. Federal cigarette advertising regulations preempt conflicting state

regulations.2. Analysis:Historic police powers of States are not to be superseded by Federal

Actunless that is clear and manifest purpose of Act. Congress expresslyprecluded any additional statements on cigarette packaging beyond thoserequired byfederal law, and any state regulation based on smoking and healthwith respect to advertising and promotion of cigarettes. Like FCLAA,Massachusetts regulations seek to protect young people from misleadingadvertising relating to smoking and health. Massachusetts limitations on locationas opposed to content, of advertisements do not save state regulations frompreemption.

iii. Implied Preemption1. Conflicts Preemption

a. Field (Domination): Iffederal and state law are mutually exclusive sothat personscannot comply with both (Impossibility), state law is deemedpreempted.

i. Florida Lime & Avocado Growers, Inc. v. Paul, Director, Dept.of Agriculture of California

1. Holding: No. When both can be satisfied, federal law doesnot preempt state regulation.

2. Analysis: State law did not violateSupremacy Clausebecause compliance with law andAgricultural AdjustmentAct was not impossible. Plaintiffs could comply with bothstate andfederal regulations by allowing avocadoes toremain on trees until they reach oil content required bystate law. Although regulations are similar, they are notinevitably conflicted.


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2. Conflict: Preemption Because State Law Impedes the Achievement of aFederal Objective

a. Preemption can also be found ifstate or local law is deemed to impedeachievement of federal objective. Even iffederal and state law are notmutually exclusive, preemption will be found ifstate or local law

interferes with attaining federal legislative goal.i. Pacific Gas & Electirc Co. v. State Energy ResourcesConservation & Develop. Commn.

1. Holding: Yes. However, state law placing moratorium onconstruction of nuclear power plants does not impedefederal laws objective of developing nuclear energy.

2. Analysis: State law will be preempted if it stands asobstacle to accomplishment of full purposes and

objectives of Congress. However, Court will not interferewhere there ispermissible basis for state law. State lawwas not preempted byACEbecause it was concerned with

costs of long-term storage, whileACEpervasivelyregulated radiological safety aspects of construction andoperation of nuclear plants. Congress has left sufficientauthority in states to allow development of nuclear powerto be slowed for economic reasons. Therefore, state lawdid not interfere with objectives ofACE.

3. Judgment: Affirmed.3. Federal Purpose / Objective: Preemption Because Federal Law Occupies the

Fielda. Even though federal law does not expressly preempt state law,

preemption will be found if there is clear congressional intentto havefederal law occupy particular area of law.

b. Most important example of this is immigration law.i. Hines, Secretary of Labor and Industry of Pennsylvania v.

Davidowitz1. Holding: No. Congress intended federal government to

occupy field of immigration regulation.2. Analysis: Both state Actand recently enactedfederal Act

set forth comprehensive scheme for registering aliens livingin United States. State's power to legislate in area offoreign relations was subordinate tofederal government'spowerto do so under Supremacy Clause. Because federalgovernment had enacted comprehensive scheme, statestatute had been preempted.

I) The Dormant Commerce Clause4a. Even ifCongress has not acted or no preemption is found, state and local laws are

unconstitutional if they place undue burden on interstate commerce. Court has inferredthisfrom grant of power to Congress in Article I, 8 to regulate commerce among states.

4 a.k.a Negative Commerce Clause


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b. Dormant Commerce Clause is not the only way of challenging state laws that burdeninterstate commerce. Ifstate or local government discriminates against out-of-staters withregard tofundamental rightor important economic activities, challenge can be brought underPrivileges and Immunities Clause or Equal Protection Clause of14th Amendment.

i. Why a Dormant Commerce Clause?1.

Congress has authority under its commerce power to preempt state or local lawthat it deems to place undue burden on interstate commerce.

2. Critical issue is whetherjudiciary, in absence of congressional action, shouldinvalidate state and local laws because they place undue burden on interstatecommerce.

a. H. P. Hood & Sons, Inc. v. Du Mond, Commissioner of Agricultureand Markets of NY

i. Holding: No. Licensing statute violated Commerce Clause.ii. Analysis: Statute was attempt toprotect New York's commercial

interests by restricting export of milk to milk processors in otherstates that competedwith New York milk processors. Statute's

primary purpose was not regulation with view to safety butprohibition of competition.ii. Traditional argumentsforhaving Dormant Commerce Clause:

1. framers intended toprevent state laws thatinterferedwith interstatecommerce;

2. economy is better offif state and local laws impedinginterstate commerce areinvalidated; and

3. states and their citizens should not be harmedby laws in other states where theylack political representation.

iii. Criticism of existence ofDormant Commerce Clause:1. has no basis in text of Constitution;2. makes little sense; and3. has proved virtually unworkable in application.

iv. Theories to support negative Commerce Clause jurisprudence despite lack oftextualbasis:

1. Commerce Clause itself constituted exclusive grant of power to Congress5; and2. Congress, by its silence, pre-empts state legislation.6

v. We nonetheless adhere to negative Commerce Clause because we believe it necessaryto check state measures contrary to perceived spirit, if not actual letter, ofConstitution.

vi. Negative Commerce Clause jurisprudence has taken us well beyond invalidation ofobviously discriminatory taxes on interstate commerce. Any test that requires Courtto assess: 1) whether particular statute serves legitimate local public interest; 2) whethereffects of statute on interstate commerce are merely incidental or clearly excessive inrelation to putative benefits; 3) nature of local interest; and 4) whether there arealternative means of furthering local interest that have lesser impact on interstatecommerce certainly compels Court to act more like legislators than asjudges.

c. The Dormant Commerce Clause Before 19385 Court has long since repudiated this rationale.6 This, too, has long since been rejected by Court.


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i. State laws burdening commerce will sometimes be upheldas valid exercises of policepower. Other times they will be invalidatedas violation of dormant CommerceClause.

ii. In Gibbons v. Ogden, test was police power versus commerce power. State lawsburdening commerce should be upheldifvalid exercises of police power.

1.

Aaron B. Cooley v. The Board of Wardens of the Port of Philadelphiaa. Holding: No. Congressional power is not exclusive of all state powers toregulate commerce.

b. Analysis: Grant to Congress ofpower to regulate commerce did notdeprive states ofpower to regulate pilots. Although Congress wasgranted such power, nothing required that exclusively Congress shouldexercise it. This was fair exercise of legislative discretion.

2. Cooley establishes selective exclusiveness testif subject of regulation requiresnational uniformity, then Congressional power is exclusive, but if subject matteris of purely local concern, state may regulate subject, providing there are nocompeting federal regulations.

d.

The Contemporary Test for the Dormant Commerce Clausei. The Shift to a Balancing Approach1. Rigid police/commerce powertest ofGibbons and local/national subject

mattertest ofCooley have notbeen expressly overruled, but modern approachis based on courts balancing benefits of law against burdens that it imposes oninterstate commerce.

a. South Carolina State Highway Dept. v. Barnwell Bros., Inc.i. Holding: No. State regulations did not violate commerce clause.

ii. Analysis: Few subjects of state regulation are so peculiarly oflocal concern as is use of state highwayssafely and economically.As long as state action did not discriminateagainst interstatecommerce, burden oninterstate commerce was one whichconstitution permitted because it was inseparable incident ofexercise of legislative authority, which, under constitution, hadbeen left to states. There was adequate support for legislativejudgementthat led to enactment of Act, and measures taken bystate were within its legislative power.

b. Southern Pacific Co. v. Arizona ex rel. Sullivan, Attorney Generali. Holding: Yes. State law that puts significant burden on interstate

commerce, yet provides no real improvement in safety, will befound to violate commerce clause.

ii. Analysis: When regulation of matters oflocal concern is local incharacter and effect, and its impact on national commerce doesnot seriously interfere with its operation, and consequentincentive to deal with them nationally is slight, such regulationhas been generally held to be within state authority. Here, statelaw went too far, having seriously adverse effectontransportationefficiency and economy, and having only slight safety advantage.

2. In recent years, some Justices have objectedto this balancing test and haveargued in favor ofupholding all state laws that are deemed non-


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discriminatory because weighinggovernmental interests of State againstneeds of interstate commerce is task squarely within responsibility ofCongressand ill suited tojudicial function.

e. Determining Whether a Law is Discriminatoryi. Framers were most concerned about stopping protectionist legislation, where state would

discriminate againt out-of-staters to benefit its citizens at expense of out-of-staters.ii. Protectionist laws are most likely to interfere with economy.1. Iflaw applies to in-staters and out-of-staters equally, at least some of those

affected by law are represented in political process.iii. Balancing test varies depending upon whether state or local law discriminates against

out-of-staters or treats in-staters and out-of-staters alike.iv. If Court concludesstate is discriminating, there is strong presumption against law and

it will be upheld only if it is necessary to achieve important purpose.v. If Court concludes law is non-discriminatory, presumption is in favor of upholding

law, and it will be invalidated only if it is shown that laws burdens on interstatecommerce outweigh its benefits.

vi.

Laws can be facially discriminatory, drawing distinction between in-staters and out-of-statersby their terms, or facially neutral but motivated by desire to help in-staters atexpense of out-of-staters or having discriminatory impacton those from other states.

1. Facially Discriminatory Lawsa. City of Philadelphia v. New Jersey

i. Holding: Yes. Statute banning waste from entering state to bedisposed of was unconstitutional.

ii. Analysis: Statute was protectionist measure and not law directedto legitimate local concerns with only incidental effects uponinterstate commerce. Where simple economic protectionism iseffected by state legislation, virtually per se rule of invalidity hasbeen erected. Purpose of protecting local environment and publichealth, safety, and welfare of its residents could not beaccomplished by discriminating against articles of commercecoming from outside state unless there was some reason, apartfrom their origin, to treat them differently. Statute both on its faceand in its plain effect violated principle ofnondiscriminationbecause it imposedfull burden of conserving state's remaininglandfill space on out-of-staters.

b. C & A Carbone, Inc. v. Town of Clarkstown, New Yorki. Holding: No. Local ordinance requiring all waste to be processed

at local transfer station violates commerce clause.ii. Analysis: Local government could not use its regulatory powers to

favor local enterprises and discriminate against non-localcompetitors. Ordinance here isfinancing measure, and by itself,revenue generation is not local interest that canjustifydiscriminating against interstate commerce. Town's ordinancegave preference to local private industry and was thusunconstitutional under Dormant Commerce Clause.

c. Hughes v. Oklahoma


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i. Holding: Yes. Statute was repugnant to Commerce Clause.ii. Analysis: Burden is on challenging party to show statute at issue

discriminates, but when discrimination against commerce isdemonstrated, burden falls on state tojustify it both in terms oflocal benefits flowing from statute and unavailability of

nondiscriminatory alternatives adequate to preserve localinterests at stake. Statute was discriminatory on its facebecause it overtly blocks flow of interstate commerce at Statesborders. Statute does not serve legitimate local purpose as lastditch conservation measure because it placed no limits on numbersor disposition of minnows within state butforbade their export forsale outside state.

2. Facially Neutral Lawsa. Facially neutral laws can be found to be discriminatory if they either

have purposeoreffect ofdiscriminating against out-of-staters.7i. Hunt, Governor of the State of NC v. Washington State Apple

Advertising Commn.1. Holding: Yes. Challenged statute burdened anddiscriminated against interstate sales of apples.

2. Analysis: Law raisesof costs of doing business in NorthCarolina for Washington apple producers, since theywould be forced to change their marketing practices, whileleaving in-state growers unaffected. Law has effect ofstripping away from Washington apple industrycompetitive and economic advantages it has earnedthrough use of its grading system. Law requiresWashington to downgrade its apples, thus protecting in-

state apple growers from out-of-state competitors.Commerce Clause was designed toprohibitthis. Statutedoes little to eliminate confusion in marketing offoodstuffs and does not direct its efforts at consumers atlarge but at wholesalers. State also did not demonstrateunavailability of nondiscriminatory alternatives

adequate to preserve local interests such as labeling bothgrades.

ii. Exxon Corp. v. Governor of Maryland1. Holding: No. State statute did not burden or discriminate

against interstate commerce.2. Analysis: Law does not discriminate between in-state

and out-of-state refiners because there are no in-staterefiners. Just because burden falls upon some out-of-state companiesdoes not, by itself, establishdiscrimination against interstate commerce. Statute didnot violate Commerce Clause because it did not prohibit

7 This is different from analysis under Equal Protection Clause (Chapter 7) where there must be both.


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flow of interstate goods or distinguish between in-stateand out-of-state companies.

b. Facially neutral laws can also be found discriminatory if they wereenacted for protectionist purpose: helping in-staters at expense of out-of-staters.

i.

West Lynn Creamery, Inc. v. Healy, Commissioner of Mass.Dept. of Food and Agriculture1. Holding: Yes. State pricing order discriminates against

interstate commerce.2. Analysis: State may not use its legitimate powers to tax

and to subsidize state businesses to effect illegitimate aimofburdening out-of-state competitors to benefit of in-state businesses. Pricing order is funded mostly fromtaxes on sale of milkproduced in other states to assistlocal farmers. Local farmers who would normally lobbyagainsttax since it increased price of milk thereby

reducing demand for itwere in favor of tax because ofsubsidy they received. Therefore,states politicalprocesses could no longer be relied upon topreventlegislative abuse.

ii. State of Minnesota v. Clover Leaf Creamery Co. 1. Holding: Yes. If state law purporting to promote

environmental purposes is really simple economicprotectionism, virtually per se rule of invalidity applies.

2. Analysis: Statute did not discriminate between interstateand intrastate commerce because it regulatesevenhandedly by prohibiting all milk retailers from usingplastic containers without regard to whether milk,containers, or sellers are from outside state. Controllingquestion then is whether incidental burden imposed oninterstate commerce was clearly excessive in relation tolocal benefits. Statute's burden on interstate commercewas relatively minorsince milk products can continue tomove freely across state borderand changes in packagingwill be only slight inconvenience and burden on out-of-state plastics industries is not clearly excessive in light ofsubstantial State interest in solid waste disposalproblems.

3. Analysis if a Law is Deemed Discriminatorya. Crucial initial inquiry in dormant Commerce Clause cases is whether

law is discriminatory against out-of-staters.b. Dean Milk Co. v. City of Madison, Wisconsin illustrates rigorous

scrutiny used when laws are deemed discriminatory:i. Dean Milk Co. v. City of Madison, Wisconsin


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1. Holding: Yes. States must consider reasonable alternativeswhen enacting laws intended to protect public health butwhich also burden commerce.

2. Analysis: Ordinance imposed undue burden on interstatecommerce because, in effect, ordinance excluded from

distribution in citywholesale milkproduced andpasteurized in adjoining state. City had erectedeconomic barrier protecting major local industry

against competition from outside state, plainlydiscriminating against interstate commerce.Furthermore, reasonable and adequate alternatives wereavailable because city could have charged reasonable costto importing entities to have its own officials to inspect

milk.ii. Maine v. Taylor and United States

1. Holding: Yes. Statute that affirmatively discriminatesagainst interstate commerce passes strict scrutiny testwhere it attempts to prohibit significant damage to statesenvironmental well-being.

2. Analysis: Defendant's conviction was not clearly erroneoussince evidence showed that no alternative means existedto promote local purpose without discriminating against

interstate commerce.Abstract possibility of developingacceptable testing procedures did not make thoseprocedures available nondiscriminatory alternative. Assuch, state statute permissibly served legitimate localpurpose of protecting states unique and fragile fisheries.

3. Judgment: Reversed.4. Analysis if a Law is Deemed Non-Discriminatory

a. If state law is not discriminatory and treats in-state and out-of-statersalike, it is subject to much less demanding test.

b. Non-discriminatory laws are upheld so long as benefits to governmentoutweigh burdens on interstate commerce.8

i. Loren J. Pike v. Bruce Church, Inc.1. Holding: Yes. Where state statute regulates even-handedly

to effectuate legitimate local public interest, and its effectson interstate commerce are only incidental, it will beupheld unless burden imposed on such commerce is clearlyexcessive in relation to putative local benefits.

2. Analysis: State's interest inpromoting and preservingreputation of in-state growers did notjustify requirementthat company build and operate unneeded packing plant instate. Commerce Clause forbids state from requiringbusiness operations be performed in-state that could

8 However, some argue dormant Commerce Clause should not apply in absence ofdiscriminatory law.


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more efficiently be performed elsewhere. Statesinterest is minimal at best.

3. Judgment: Affirmed.ii. Bibb, Director, Dept. of Public Safety of Illinois v. Navajo

Freight Lines, Inc.

1.

Holding: Yes. Court will uphold law unless total effect oflaw as safety measure is so slight as to not outweighnational interest in keeping interstate commerce free fromserious interferences.

2. Analysis: Local safety measure balanced against burdenon commerce violated Commerce Clause becausemudflap design was so out of line with requirements ofalmost all other states that carriers assumed great burdento comply with statute; inconsistency of mudflap designsdelayed interstate commerce and inconvenienced

carriers who were forced to seek ways to comply with

statute. Also, safety benefit of state-required mudflapswas slight.3. Judgment: Affirmed.

iii. Raymond Kassel v. Consolidated Freightways Corp. ofDelaware

1. Holding: Yes. Although state regulations concerninghighway safety carry strong presumption of validity, iffurtherance of safety is marginal or burden on commerce issubstantial, regulations will be declared invalid underCommerce Clause.

2. Analysis: State failed to meet its burden of showingstatistically significant difference in safety between 55-foot and 65-foot trucks. Moreover, statute could potentiallycreate more accidents, byforcing shippers to use moresmall trucks to carry same quantity of goods, orforce trucktraffic to bypass State, shifting traffic (and higher incidenceof accidents) to adjacent states.

iv. CTS Corp. v. Dynamics Corp. of America1. Holding:No. State law that delineated shareholders

voting rights and limited effectiveness of tender offers didnot violate Commerce Clause.

2. Analysis: 1) Law was equally applicable to in-state andout-of-state offerors, 2) it did not create inconsistentregulation in multiple states, and 3) it applied todomestically-incorporated corporations with substantial

resident shareholders.J) Exceptions to the Dormant Commerce Clause

a. Two exceptions where laws that would violatedormant Commerce Clause will be allowed:i. Congress approves state law or


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ii. market participant exceptionstate mayfavor its own citizens in receiving benefitsfrom government programs or in dealing with government-owned businesses.

b. Congressional Approvali. Constitution empowers Congress to regulate commerce among states and therefore

state laws burdening commerce arepermissible, even when they otherwise would

violate dormant Commerce Clause, if they have been approved by Congress.

9

1. Western & Southern Life Insurance Co. v. State Board of Equalization ofCalifornia

i. Holding: Yes. Congress, by its authority to regulate commerceamong states, may give states power to enact laws that restirct flowof interstate commerce.

ii. Analysis: Act removed entirely any Commerce Clauserestrictionuponstates power to tax insurance business. States action waswithin scope of this authority.

c. The Market Participant Exceptioni. Ifstate is literally participant in market, such as state-owned business, and not

regulator, dormant Commerce Clause does not apply.1. Reeves, Inc. v. William Stakea. Holding: Yes. States that are market participants in buying and selling of

goods, as opposed to market regulators, are not bound by CommerceClause and thus may favor in-state interests.

b. Analysis: There was nothing in Commerce Clause that prohibited statefrom participating in market and exercising such right in favor of itscitizens. Commerce Clause responds principally to state taxes andregulatory measures impeding free private trade in national

marketplace, and there is no limit ability of States themselves tooperate freely in free market. Any restraintin this area is better suitedfor Congress than courts.

2. White v. Massachusetts Council of Construction Employers, Inc.a. Holding: No. Application of order to contracts did not violate Commerce

Clause.b. Analysis: Insofar as city expended only its own funds in entering into

contracts for public projects, it was market participant, not marketregulator. As market participant, it was not subject to restraints ofCommerce Clause. Insofar as order was applied to projects funded inpart with funds obtained from federal programs, order wasaffirmatively sanctioned by pertinent regulations of those programs.

c. Judgment: Reversed and remanded.3. South-Central Timber Devel., Inc. v. Commissioner, Dept. of Natural

Resources of Alaska

9 IfCongress has acted, commerce power is no longer dormant and issue is whether federal law is constitutional exerciseof commerce power (i.e. does not violateEqual Protection or Privileges or Immunities Clauses). This is one of few areaswhere Congress has clear authority to overruleCourt decision interpreting Constitution because it may enact lawapproving action that has been deemed by Court to violate dormant Commerce Clause.


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a. Holding: No. Although state-owned businesses may favor residentpurchasers, they may not attach conditions to sale of products that willburden interstate commerce.

b. Analysis: State may not impose conditions that have substantialregulatory effect outside particular market. Alaska is attempting to

regulate where timber will be processed. Alaska may not avail itself ofmarket-participant exception to immunize its down-stream regulationof timber-processing market in which it is not participant.

ii. Market participant exception has been criticizedon several grounds:1. protectionism should not be allowed regardless of whether state is acting in

proprietary or regulatory capacity and2. there is no clear distinction between when government is acting as regulator and

when it is market participant.iii. Market participant exception can be defendedon several grounds:

1. allowing citizens in state to recoup benefits of taxes they pay and2. state spending programs areless coercive than regulatory programs or taxes

with similar purposes and they seem less hostile to other states and lessinconsistent with concept of union than discriminatory regulation ortaxation.

K) The Privileges and Immunities Clause of Article IV, 2 (be specific on exam ofwhich clause you are using)

a. Introductioni. Another provision that limits state and local regulation is Privileges and Immunities

Clause ofArticle IV, 2 which states that citizens of each state shall be entitled toprivileges and immunities ofcitizens in several states.

1. This limits ability of states to discriminateagainst out-of-staters with regard tofundamental rights or important economic activities.

2. Differences between dormant Commerce Clause and Privileges andImmunities Clause:

a. Privileges and Immunities Clause can be used only if there isdiscrimination against out-of-staters;

b. corporations and aliens can sue under dormant Commerce Clause;c. two exceptions (above) to dormant Commerce Clause do not apply to

Privileges and Immunities Clause.ii. Analysis Under the Privileges and Immunities Clause

1. Two basic questions when challenge is brough under Privileges and ImmunitiesClause:

a. Has state discriminated against out-of-staters with regard to privilegesand immunities it accords its own citizens?b. If there is such discrimination, is there sufficient justification for it?

b. What Are the Privileges and Immunities of Citizenship?i. Clauseprotects interests which arefundamental; which belong, ofright, to citizens of

all free governments. Comprehended under following heads:protection by government,enjoyment of life and liberty with right to acquire and possess property, and topursue


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and obtain happiness and safety, subject only to such restraints as government mayjustly prescribe for general good of whole.

ii. Court has primarily applied Clause when state is discriminating against out-of-staters:1. with regard to constitutional rights or2. with regard to important economic activities

a.

Toomer v. Witselli. Holding: Yes. State law that discriminates against out-of-statersviolates Privileges and Immunities Clause where it createscommercial monopoly for states residents.

ii. Analysis: Clause was intended to outlawclassifications based onfact of non-citizenship unless there is something to indicate thatnon-citizens constitute peculiar source of evil at which statute

is aimed. In this case there is no reasonable relationship betweenalleged danger to shrimp supply represented by non-citizens, andsevere discrimination practiced upon them. Purpose of statutewas not conservation of shrimp but discriminatory exclusion of

nonresidents and creation ofcommercial monopoly forresidents.b. United Building and Construction Trades Council of Camden County

v. Mayor and Council of the City of Camden i. Holding: Yes. Clause prevents states from discriminating against

non-residents if: 1) discrimination burdens fundamental privilege,and 2) there is no substantial reason for it.

ii. Analysis: Clause applies to municipal ordinance because citiesderive their legislative authority from states. Although stateresidentsliving outside of city are disadvantagedas much as out-of-staters and have no Privileges and Immunities claim, thisdenial of claims should not be applied to out-of-state residentsbecause in-staters can seek remedy through voting.Employment is one of most fundamental of privileges.

c. Lester Baldwin v. Fish and Game Commn. Of Montanai. Holding: No. Hunting is not fundamental right entitled to

Privileges and Immunitiesprotection.ii. Analysis: Nonresidents' interest in sharinglimited resource on

more equal terms with residents simply did not fall within purviewofPrivileges and Immunities Clause. Equality in access to stateelkwas not basic to maintenance or well being

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Constitutional Law I Outline - Final Exam Outline