Con Law I, Spring 2015

CONSTITUTIONAL LAW I OUTLINE

I. The Federal Judicial Power

A. The Authority for Judicial Review

KEEP IN MIND THREE THINGS!

(1) How does the court justify judicial review of executive actions and
according to the court when is such judicial review available, and when
is it not?
The Court needs to be able to interpret what actions are and are not
constitutional so that when executive action violates the constitution there is
somewhere the injured party can go for reprieve.

(2) Why does the court find that the judiciary act of 1789 unconstitutional?
Chief Justice Marshall is essentially saying that Marbury is right to get his
writ of Mandamus against Secretary Madison under the law of the federal
Judiciary act of 1789… HOWEVER, Secretary Madison is also right to not
deliver the commission under his order from the president to withhold the
commission, and the president has the right to do that under the
Constitution. AND SINCE the constitution has the supremacy clause in it, that
makes it a higher law, thus it trumps the judiciary act, which means that the
judiciary act is unconstitutional (at least where it runs into the constitution).

(3) How does the court justify judicial review of legislative acts?
Because, if the court does not have that ability then what will stop
congress from enacting legislation that violates the constitution? AND what
could someone do if they believed that they were subject to a law that was
unconstitutional? Nothing, that’s why the court needs to have this ability, to
place a check on congress’ power to make laws s that they don’t make
unconstitutional laws.

Marbury v. Madison (1803)—landmark Supreme Court case established

authority of judicial review "It is emphatically the province and duty of the
judicial department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that rule. If two
laws conflict with each other, the courts must decide on the operation of
each." Also established that political questions could not be answered by the
court, and that appointments were political questions.

Authority for Judicial Review of State Judgments

Martin v. Hunter’s Lease (1816)—Case over a rightful inheritor of land
question. Can the Supreme Court overturn a state Supreme Court decision??
YES. The Supreme Court must have judicial oversight over the sate courts,

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because even thought e judges of the state courts may have the same
education as the federal courts, the federal courts are not bias like the state
courts, which may be prejudicial to enforcing the federal law, when it is
inconvenient for the state’s goals.

Cohen’s v. Virginia (1821)—Case over the purchase of illegal lotto tickets.

Can The United States Supreme Court overturn a State Court on a criminal
issue??? YES. The state judges might not want to enforce federal law over
states law, because the same legislatures that they would have to overrule
are the same legislatures that decide if they get to have their judgeships, and
decide their salary, so they may be biased, and not enforce federal
protections to citizens appropriately.

B. Limits on the Federal Judicial Power

1. Interpretive Limits: Raise the question of how the Constitution should be
interpreted; some approaches seek to greatly narrow the judicial power,
while others accord judges broad latitude in deciding the meaning of the
Constitution.

How Should the Constitution Be Interpreted?

Textualism:

Originalism: Judges deciding constitutional issues should confine

themselves to enforcing norms that are stated clearly or implicitly in the
constitution.

Structuralism:

District of Columbia v. Heller—Gun control case, we didn’t read.

2. Congressional Limits: Refers to the ability of Congress to restrict federal

court jurisdiction.

U.S. Const. Art. III, Sec. 2: “In all the other cases… the Supreme Court shall
have appellate jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the congress shall make.” –(Ex Parte McCardle)

There is question as to the intent of the comma after fact. Is it that the court
is limited to establish fact when congress regulates, or that they can be
limited in law and fact when the congress regulates it.

Look at DOMA, congress tried to eliminate the Supreme Court’s appellate

authority to hear DOMA cases, it failed Art I Sec 7, and now it has almost been
completely been struck down by the court.

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The Exceptions and Regulations Clause

Ex Parte McCardle (1868)—McCardle writes for a southern newspaper,

thinks that reconstruction is unconstitutional. McCardle is being tried by
a military tribunal, asks for a Habeas petition because he believes that the
1867 Act that he is held under is unconstitutional. Congress is afraid that
it is unconstitutional, and that a court ruling could bring down
reconstruction, so it repealed the law before the case. Congress does not
set the courts jurisdiction, except when Art III of the constitution
allows it to.

Separation of Powers as a Limit on Congress’s Authority

United States v. Klein (1871)—Land taken by the north during the civil
war could only be recovered if the person asking for it could prove that he
did not assist the rebels. Can Congress make a law instructing the
judiciary how to use and interpret action from executive??? No, Congress
cannot do that. That would infringed upon the executives power, and the
judicial power (balance/separation of power issue).

Robertson v. Seattle Audubon Society (1992)—Klein applies to cases

where the Congress tries to amend laws to gain a particular outcome out
of the court, that is unconstitutional, HOWEVER, in this case, Congress
made a completely new, law, which had similar instructions, and was
constitutional. ***Close issue.

3. Justiciability Limits: Refers to a series of judicially created doctrines that

limit the types of matters that federal courts can decide (the jurisdiction of the
court).

“The judicial power shall extend to all cases, in law and equity, arising under
this constitution, the laws of the United States, and treaties made… to all
cases affecting…
- Ambassadors,
- Other public ministers and consuls,
- All cases of admiralty and maritime,
- Jurisdiction to controversies to which the United States shall be a party to
controversies between…
Two or more states
A state and citizens of the state
Citizens of different states.”

To say that something is not justiciable is to say that there is no

jurisdiction to hear the case.

- No Advisory Opinions

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- All cases must have standing.

- Must be RIPE
- Must not be moot
- Cannot be Political Questions

a. Prohibition of Advisory Opinions—Case or controversy does not exist.

b. Standing—The determination for whether a specific person is the proper

party to bring a matter the court for adjudication.

Constitutional Elements:
(1) Injury: π must allege that he or she has suffered or immediately will suffered an
injury.
(2) Causation: Π must allege that the injury is fairly relatable ot the ∆’s conduct.
(3) Redressablity: Π must allege that a foreseeable federal court decision likely to
redress claims of the injury.

Prudential Elements:
(1) No Third Party Standing (EXCEPTION: when we are talking about First Amendment
over breath it becomes possible for 3rd party suits).
(2) No generalized taxpayer or citizen standing.

i. Constitutional Standing Requirements

Massachusetts v. Environmental Protection Agency (2007)—10 states were

suing the EPA for lack of enforcement of their own policy. Do states have
the ability to represent all other states and citizens in an action against the
EPA? YES, because states have a “special solicitor status” which allows
them to bring third party claims.

Notes on Constitutional Standing Requirements; Injury, Causation and

Redressablity

City of Los Angles v. Lyons (1983)—Lyons was choked to unconsciousness

by LAPD without a privilege…. Can the court provide an injunction to
prevent officers from applying chokeholds?? NO, you would have to
assume both that Lyons would have another incident with the police,
AND that it was the recommended procedure by the police to choke
people. Since neither are present, there is no standing.

Simon v. Eastern Kentucky Welfare Rights Org. (1976)—In order to have

tax exempt status, non-profit chartable hospitals were required to provide
care to indigent people for free. Π’s were denied care because hospitals
claimed that under new IRS policy it only had to provide emergency care.
Do the π’s have standing, and is the IRS policy constitutional? No they do
not have standing, and yes the policy is constitutional. It was

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speculative to ask if the revenue ruling was responsible for the lack of care,
and it seemed clear to the court that hearing the case did not have the
potential to give the π’s the care that they were previously denied.

Duke Power Co. v. Carolina Environmental Study Grp. (1978)—40

individuals and 2 organizations petitioned the court that the Pierson
Anderson Act was unconstitutional, because it limited the damages brought
by people living close to a Nuclear power Plant, potentially violating their
14th Amend. Rights. Do the π’s have standing? Is the act Unconstitutional?
YES standing, but constitutional. Because the fact that the plant will
expose people to radiation in of itself was proof of the harms, therefore
standing must exist, even though no catastrophic event had transpired.

ii. Prudential Standing Requirements

The Prohibition of Third-Party Standing

Singleton v. Wulff (1976)—Two abortion physicians are suing the

responsible state official for funding abortions for non-medically educed
Medicated patients, which he is obligated not to do under MO law. (1) Do
the physicians have standing? (2) Can they exert the rights of the Pregnant
Women? YES to both. The Physicians have standing because they stand to
gain or be damaged financially by the outcome of the case, however, they
may also exert the rights of the pregnant women because they are in a
position to be zealous advocates for this class of citizens that might not
otherwise have standing (only pregnant for so long, and the appeals
process is long). Physician relationship is close to the woman, and the
woman might not want to speak publically.

“Federal Courts must hesitate before resolving a controversy, even one within their
constitutional power to resolve, on the basis of the rights of third persons not parties
to the litigation.” TWO REASONS…
(1). The Courts should not adjudicate such rights unnecessarily and it may be that in fact
these holder of those rights either do not wish to assert them or will be able to enjoy them
regardless of whether the court litigating is successful or not.
(2). Third parties themselves usually will be the best proponents of their own rights.
HOWEVER: There are two factors that allow their party to be brought up.
(1). Closeness to the third party.
(2). Likelihood that the injured arty could bring up the issue on their own.

Barrows v. Jackson (1953)—π Owned a home, singed a racially restrictive

covenant, rented to blacks anyway. Can π raise discrimination as a defense,
enough the he is not black, or living there? YES. The black tenants could not
be a party to the case, because they didn’t sign the convenient, but it is clear
that it is their rights that are being violated.

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Craig v. Boren (1976)—OK law allowed a woman to purchase beer at age

18, but men had to wait until age 21. Bartender sues on behalf of the males
between the ages of 18 and 20 who would be customers. Can the bartender
represent the rights of the young men? YES. The bartender is functionally
burdened by the law, so he may use the rights of those he is losing business
from in order to remedy his own injury.

Gilmore v. Utah (1976)—A man convicted of murder sentenced to death,

waived his right to a habeas corpus petition, so his mother field a stay of
execution claim upon his behalf… BUT does the mother have standing???
NO. The injury belongs to the man, and he knows that he has the right to it
and has decided to waive it, and his mother cannot interfere with that (the
idea being that a third party cannot make a claim when someone who
knows that they have a right, have decided to waive that right). She is not
the one with the injury.

The Prohibition of Generalized Grievances

TWO PART TEST

(1). Challenging an enactment under the taxing and spending clause of the constitution.
(2). Claiming that the challenged enactments exceeds specific constitutional limits on
taxing and spending powers.

United States v. Richardson (1974)—U.S. citizens wanted proper accounting

on how the CIA spent funds appropriated to it by Congress under the
transparency clause in Art. I §§ 7,8 of the Constitution. Seems similar to the
Frothingham case, which stated that taxpayer grievances don’t have
standing. The Majority felt that way and held that it redress was only
thought the political system, Dissenting opinion considered this a failure on
the part of the government to uphold a constitutional provision, and saw
this as a suit by a citizen.

Flast v. Cohen (1968)—π brought suit against the state law for funding
things to a religious private school, and the π pays tax dollars that
contributed to this. Does he have standing? Surprisingly, YES, creates an
exception for when a taxpayer MAY obtain standing where clam that the
government has used its taxing and spending power in violation of the
establishment clause. Status of a taxpayer, and a link between that and
the unconstitutional status of the law.

Flast TWO part test:

(1). Taxpayer must establish a nexus between their role as a taxpayer and the particularly
enactment by congress; and
(2). Taxpayer must establish a nexus between that status and the precise nature of the
constitutional infringement alleged.

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HOWEVER:
Valley Forge (1982)—For purposes of Flast, government disposal of Property is not an
“expenditure.”
Hein (2007)—For purposes of Flast, Executive expenditure is not an ”expenditure.”

c. Ripeness—Prohibition of advisory opinions: There must be an actual

dispute between adversary litigants. ***Even under the Washington
Administration, the court did not want to give advice on how the
executive branch should go about its duties without an actual case to
decide.
Factors:
(1). Fitness of the Issues for Judicial Decision
(2). Hardship to parties.
The ripeness doctrine seeks to separate matters that are premature for relies because
the injury is speculative and may never occur.
In order to have standing the π must demonstrate that an injury has occurred or
immediacy will occur and that review is not premature.
 Has occurred or immediately will occur.

Poe v. Ullman (1961)—Husband and Wife who want information about

contraception are unable to obtain it because their doctor is afraid of
violating a Conn. Law that prohibits the education or sale o
contraceptives. Do the π’s have ripeness??? NO. The law is not enforced;
therefore they are not “really” prohibited from access or education.
HOWEVER, dissent notes that telling a person to violate the law that is on
the books proves that the case is ripe, AND there is a factual disconnect,
the fact of the matter is that the state is enforcing the law.

Abbott Laboratories v. Gardner (1967)—New FDA policy required drug

manufactures to place the name of the generic drug in large print on
packaging so that they know what it really is. Drug manufacture claim
that it will be a great burden (because they have to change their adds and
throw away all of the packaging they have already created. IS THE CASE
RIPE since they have not performed yet?? YES, large potential injury if
they have to pay all of this money on new packaging.

d. Mootness: A case becomes moot when there is no longer a controversy

between adverse litigants.

THREE exceptions where a court will hear a moot case:

(1). “Capable of Repetition yet evading review.”
(2). Voluntary Cessation.
(3). Class Action.

***Capable of Repetition Yet Evading Review:

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Moore v. Ogilvie (1969)—Bad IL election law, but by the time it got to the
court the election happened, BUT because there was going to be another
election the court decided that it was NOT moot so that the court could
decide the issue before the next election, and so that the next election
does not pass before this can be fully litigated again. The court decides
that it can continue to have jurisdiction over the case long past the ability
to remedy the π’s injury because this is a continuing issue that is likely to
come up with every subsequent election, and will continue to EVADE
judicial review if a strict interpretation of ripe prohibits it.

Roe v. Wade (1973)—Roe got pregnant and wanted an abortion in the

state of TX, when it was banned, sued, but by the time the case made it to
the US supreme Court 3 years later she was no longer pregnant, even
though it was moot, the court still heard the case because it would be
impossible to ever hear a case of abortion, because a woman is only
pregnant for 9 months. Also, important that she could want an abortion
in the future. And in the future she would be stuck in the same situation
of not being able to litigate before the pregnancy ends.

DeFunis v. Odegaard (1974)—π sued University of Washington Law

school for not accepting him due to the schools affirmative action policy.
BUT by the time the case went to the Supreme Court he π was a 3L, but
the court heard the case because others will go through the case process.
It is completely moot, he will never go through law school applications
again.

***Voluntary Cessation: leaves the alleged improper behavior, but has a right to come
back for it:
Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000)—
Environmental Groups brought suit to stop Laidlaw Environmental
Services from Polluting specifically unlawful amounts of mercury
discharge onto the Roebuck facility. Laidlaw was a holder of a National
pollutant Discharge Elimination System (NPDES) permit. However,
because the case is heard Laidlaw stops dumping on the lot completely,
and shuts down the Roebuck facility, but retains the NPDES permit and
ownership of the Roebuck facility. Laidlaw argues that the issue is moot
now that they’ve stopped dumping, but the environmental groups argue
that there is nothing stopping them from abusing their NPDES later. The
court holds that this is not moot because the wrongful act could
reoccur. “A case can become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to reoccur.” BASICALLY, if it is clearly possible
that Laidlaw could just go back to polluting once the litigation passes they
could avoid litigation forever.

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***Class of unnamed person described in the certification acquires a legal status

separate from the interest asserted by the plaintiff:

United States Parole Commission v. Geraghty (1980)—A federal prisoner,

after twice being denied parole from a federal prions, brought suit
challenging the validity of the U.S. Parol Commission’s Release Guidelines.
HOWEVER, before the case came up he was released. Can a requires for
class action be reviewed after the original controversy has become
moot???? YES. The “personal stake” requirement is to assure that the case
is in a form capable of judicial resolution. The imperatives of a dispute
capable of judicial resolution are sharply presented issues in a concrete
factual setting and self-interested parties vigorously advocating opposite
potions.

e. The Political Question Doctrine

Political Question Doctrine:

(1) Challenges to restriction on congressional membership where the political question
doctrine was rejected,
(2) Challenges to the president’s conduct of foreign policy, and
(3) Challenges to the impeachment process—where the political question doctrine was
applied.

i. The Political Question Doctrine Defined

What is a Political Question?: The Supreme Court refuses to hear
cases that it believes are best for elected officials to answer (like
policy judgment).

Political Question—matter is inappropriate for judicial branch to

consider, rather, it is for the political branches (legislative or
executive) to decide.

The Issues of Malapportionment and Partisan

Gerrymandering

Baker v. Carr (1962): Baker is suing Tennessee (Carr) because he

believes that the reassignment of political districts in his state is
unconstitutional under the 14th Amendment Equal Protection
Clause. This is because the state used malapportionment, where a
vote is worth 1/100,000 in one district but 1/100 in another. The
state argues that this is a political question. NO it is not. While it
was questionable in the Guarantee Clause case what a republican
form of government is, it is not questionable that
malapporitonment violates the equal protections clause.

***Baker v. Carr created the 1 man = 1 vote standard.

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We now look to 6 guidelines.

1. Textually demonstrable constitutional commitment of the issue to a coordinate
political department; and or
2. A lack of judicially discoverable and manageable standards for resolving it and or
3. The impossibility of deciding without an initial poly determination of a kind clearly
not for judicial discretion; and or
4. The impossibility of a court’s undertaking independent resolution without
expressing a lack of respect for coordinate branches of the government; and or
5. An unusual need for unquestioning adherence to a political decision already made;
and or
6. The potentially embarrassment for multifarious pronouncement by various
departments on the question.
***OR!
1. Textually demonstrable constitutional commitment of the issue to a coordinate
political department; or
2. A lack of judicially discoverable and manageable standers for resolving it; or
3. Prudential considerations counsel against judicial intervention.

Vieth v. Jubelirer (2004): π is challenging the state’s districting

map, which gerrymandered in a way that was favorable to the
party he does not agree with. Looked to a cause where the court
had held that gerrymandering claims were justiciable, BUT held
that gerrymandering is not justiciable after all. No workable
standard. BUT Concurrence (and 5th vote) stated that if a proper
standard to adjudicate gerrymandering cases arise in the future,
then it should be. LOTS of dissenting opinions.
***So, the plurality and the concurrence say that we don’t have a
standard. The concurrence and the dissenters say that we should
not close the door on the political gerrymandering cases, and that
at some point the court could have a standard, AND the dissenters
come up with standards (such as the race standard).

ii. The Political Question Doctrine Applied: Congressional Self-

Governance

Powell v. McCormack: Powell was a member of the 89th congress,

was chair of the committee on labor and education a special
committee re-elected that Powell was utilizing his discursion to
pay his wife an illegal salary. So his party removed him from their
caucus, and asked him not to stand at the swearing in for the 9th
congress. Once the 90th congress sat, they voted, by a simple
majority, to remove Powell. Powell sues that it was a violation of
Art. I, §5 which requires a 2/3 vote to remove someone, Congress
argues that the court can’t review because Congress has the
authority to regulate itself. Court holds that 2/3 vote is necessary,

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BECAUSE it is important to uphold the will of the people who

voted him into the office (can only use the majority vote if the
person is unfit for office under Art. I §2 cal. 2 (age, citizenship,
residency).

Term Limits v. Thornton (1975): States cannot set term limits for
members of congress, citing Powell, the court found the case
justiciable under Art I, §2, BECAUSE that would add another
element to the three criteria in the constitution.

iii. The Political Question Doctrine Applied: Foreign Policy

Goldwater v. Carter (1979): President Carter ended a treaty with

Taiwan as part of a recognizing China… However, Senator Barry
Goldwater brought a constitutional claim that only the Senate can
rescind a treaty, just as only the senate can make them… The
Supreme Court held that the issue is NOT justiciable because the
Constitution is silent on who has this power, and since it is in the
rheum of foreign relations, the court should not intervene with the
president, and furthermore allow the elected bodies figure it out.

iv. The Political Question Doctrine Applied: Impeachment and

removal

Nixon v. United States (1993): Walter L. Nixon was Chief District

Court Judge for the Southern District of Miss. Nixon took a bribe
from a businessman in order to intervene with the businessman’s
son’s case, and have charges dropped against him. Nixon was
subsequently convicted by a jury of two counts of making false
statements before a federal grand jury and sentenced to prison,
but because Nixon did not resign, he continued to collect his
judicial salary while in prison. The House voted to impeach, and
the Senate convicted, the senate only had the evidence examined
by a 10 person committee, and that committee did not inform the
Senate body before conviction… Nixon appeals that the senate
violated Art. I §3 Cla. 6. However, the court found that it was not
justiciable to look into an impeachment proceeding. (1) There
are plenty of constitutional safeguards as it is to prevent unjust
impeachments from happening, the fact that it has to pass both
chambers, and the fact that a 2/3 supermajority is required. (2) If
the court did grant judicial review an impeachment could “expose
the political life of the country to moths, or perhaps years of chaos
especially a prom in the even to f a presidential succession.

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III. The Federal Legislative Power

A. Introduction: Congress and the States

Federal Legislative Power (Art. I.): Limited (enumerated) Powers: Congress

may act ONLY if there is express or implied authority in the Constitution.

--Tenth Amendment: “The powers not delegated to the United States

(congress) by the Constitution, or prohibited by it to the States, are reserved to
the States respectively, or to the people.”
Federal Governments have
States Governments have residual power (police power: health, safety, and
welfare (and morals, but that has been diminished or dropped).

***When reviewing the constitutionality of congressional law making—2

questions always to ask when considering if an act (law of congress) is
constitutional.
1. Does Congress have the Power?
i.e. specifically, what clause in the Constitution gives the power?
2. Is there a Constitutional LIMIT on that power?
e.g. often one of the provisions in the Bill of Rights; 10th amendment.

Federal Legislative Power

Where Congress is acting within the scope of its power, its laws are
supreme (i.e. they “preempt” State laws).

Supremacy Clause (Art. VI., sec. 2)

“This constitution, and the Laws… and all Treaties made… under the
authority of the United States, shall be the supreme Law of the Land; and the
judges in every state shall be bound thereby, any thing in the Contradiction
or Laws of any State to the Contrary notwithstanding.”

“Necessary and Proper” Power

“The Congress shall have Power… To make all laws which shall be necessary
and propert for carrying into execution the foregoing powers…” (Art. I, sec. 8
[18]).

MuCulloch v. Maryland (1819)—The State of Maryland, in opposition to the

federal bank operating in its state, decided to apply a tax ($15,000 or 2%). The
bank believed that state government could not tax the federal government. The
court found that the Bank was necessary and proper to allowing the Federal
government to carry out its enumerated powers (maintaining a military, and
waging war). So for necessary and proper “let the end be legitimate.” As long as
there is a nexus between an enumerated power (helpful to carrying out the
enumerated powers), and the action that the congress is taking, then it is
constitutional.

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Necessary and Proper Clause: gives the government the ability to do whatever
necessary to carry out these enumerated powers in the Constitution.

What Role Should Concern over Protection States Have in Defining

Congress’s Powers?

1. How important is the protection of state sovereignty and federalism?

2. Should it be the role of the judiciary to protect state prerogatives or should
this be left to the political process.

***National legislation is needed for national problems, the court should not
circumscribe the scope of congress’s authority or use of the 10th amendment to
invalidate federals laws, BUT on the other side, those who for judicial use of
federalism as a contraction on congress’s power usually identify three benefits of
protection the states.
(1) Protect against federal tyranny.
(2) State governments are closer to the people, and more responsive to the
public needs and concerns.
(3) States can serve as laboratories for experimentation—Justice Brandies.

NFIB v. Sibelius—skipped and then come back to later with commerce clause.

B. The Necessary and Proper Clause

In McCulloch v. Maryland, the “necessary and proper clause” is interpreted by
the court as a grant of power to congress, not a limitation.
Congress has the power to carry out its duties by any means that are not
otherwise unconstitutional.

United States v. Comstock (2010)—The case was about a federal law with regards
to a civil-commitment program for those found to be legally insane for criminal
law proceedings. Congress did have the power, and Justice Breyer, writing for
the majority came up with a 5-factor considerations test to determine necessary
and proper clause cases.
(1) The breadth of the Necessary and Proper Clause (congress already has the
power to create prisons, imprison people, and ensure safe and responsible
administration of the prison, and this goes along with that.
(2) The long history of federal involvement in this area (the federal government
has had prisons and federal crimes for some time, and has administered
them for some time, and has had a similar civil commit people for other
reasons).
(3) The sound reasons for the statute’s enactment in light of the Government’s
custodial interest in safeguarding the public from dangers posed by those in
federal custody.
(4) The statute’s accommodation of state interest (allows the states to decide
where to keep the prisoner). If it is established that the federal government

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has valid power, then the federal government has “plenary” (complete)
power over the issue.
(5) The statute’s narrow scope (it is tailored to only apply to those who are
mentally ill, and pose a significant threat to cause a violent se crime or
molestation of children).
***Taken together, these considerations lead us to conclude that the statute is a
necessary and proper means of exercising the federal authority that permit
congress to create federal criminal laws, to punish their violation, to imprison
violator, to provide appropriately for those imprisoned and to maintain the
security of those who are not imprisoned, but who may be affected by the federal
imprisonment of others.

In Justice Thomas’s dissenting opinion he points out that Congress is acting

outside of executing an enumerated power, and that this is too closely related to
state’s police power…

C. The commerce Power

“The Congress shall have power… to regulate Commerce with Foreign Nations,
and among the several states, and with the Indian Tribes” (Art. I, sec 8 [3])
(e.g. Gibbons v. Ogden (1824); U.S. v. Morrison (2000)).

***THREE QUESTIONS WHEN ANSWERING A COMMERCE ISSUE!!!

(1) What is the commerce???
(2) What does among the Several States mean???
(3) Does the 10th Amendment limit congress???

1. The Initial Era: Gibbons v. Ogden Defines the Commerce Power

Gibbons v. Ogden (1824)—Ogden believed that he had purchased a legal

monopoly from Fulton and Livingston who had purchased all of the rights to
operate steam ships in between NYC and New Jersey from the State
government of NY. However, Gibbons purchased the right to operate a steam
ship in the same way from the federal government. The state courts held
for Ogden but the U.S. Supreme Court held for Gibbons because interstate,
means between states, and commerce is any commercial navigation.
(How broadly do we interpret commerce??? Broadly enough to cover
navigation!). ***If something were completely intra state (within) then it
cannot be reached by congress and the commerce clause.

2. The 1890s-1937: A Limited Federal Commerce Power

a. What is “Commerce”?
Between 1890 and 1937 it was not anything that was not explicitly the
navigation of trade…
The anti trust laws were unenforceable, and companies won caes
rendering minimum wage laws, and regulations of products to be
unconstitutional.

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The Court held that commerce was to be narrowly defined as one state
of business, separate and distinct from earlier phases such as mining,
manufacturing, and production.

b. What Does “Among the States” Mean?

If something is indirect, then it is not among the states, not among the
stream of distribution, then it is not commerce not over states lines, not
commerce.

c. Does State Sovereignty Limit Congressional Power?

***In the child labor case (Hammer v. Dagenhart (1918)), the court held
that the congress aimed its action at actions that occur within the state,
therefore the 10th amendment applied and the law was found to be
unconstitutional.
***BUT in the Lottery case (Chapinon v. Ames (1903)), the court held that
the congress was within its scope of power, and was not limiting a state
when it made a law that prohibited the travel of lottery tickets across
state lines.

3. 1937-1990s: Broad Federal Commerce Power

“Switch in time that saved 9” When Justice Owen Roberts changed his vote on
a couple of cases that were tied to new deal legislation. The switch was
important, because FDR had a court-packing plan, to set up a 15-member
court that would have someone in place now for every justice over the age of
70, and eventually let the court settle back down to 9.

Key Decisions Changing the Commerce Clause Doctrine

NLRB v. Jones & Laughlin Steel Corp. (1937)—Steal company was in violation
of the NLRB’s regulation against unfair labor practices by discriminating
against members of the Union with regard to hire, and tenure of
employment, and was coercing and intimidating employees in order to
interfere with self-organization. NLRB argues that since the company works
in PA, MI, OH and NY it is interstate. But the steel company argues that they
only manufacture in one state, so is it interstate commerce? YES it is.
Companies that manufacture at a large enough scale to interfere with many
states to the point where their own stopping in manufacturing would have a
considerable determent to the other states must be operating in interstate
commerce… AND to use a 10th Amendment argument against that is to think
only inside of a vacuum without considering the effects that a large
manufacturing company has upon the commerce between other states.
Dissenting opinion calls this a slippery slope to all commerce being
regulated by the federal government.

Wickard v. Filburn (1942): Famer Filburn owns and operates a small farm in
OH, it is common to sow wheat in the winter to harvest in the spring, and to

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use some to feed the livestock, some for household consumption, and sell the
rest at market. Pursuant to the Agg. Ac. Of 1938, Famer Filburn was given
an allotment of 11.1 acres at an average of 20.1 bushels of wheat per acre,
BUT INTEAD famer Filburn decided to plot 23 acres of wheat figuring that
the government would not know, because he would only take the bushels
produced by his allotted 11.1 acres at 20.1 bushels per acre to market and
keep the rest on his farm for house and cattle consumption. The court held
that the federal government was able to regulate the wheat on farmer
Filburn’s land because even though it was not entered into the stream of
commerce, and completely intra state it all affected the wheat market for all
of the surrounding states (and even though he is small, if everyone got away
with it, it would be a huge problem. It would “defeat and obstruct the
purpose of the rice control for the trade.” Imagine if there were hundreds of
thousands of people acting like famer Filburn, cumulative effects principal,
if we look at the effect of the cumulative effect of many people violating the
law, then it can have an effect on interstate commerce.

The Meaning of “Commerce Among the States”

***Civil Rights Act of 1964, based on the 14th Amendment for public
places. HOWEVER, for private places the court could not use the 14th
Amendment, and got create and utilized the commerce clause to
enforce it.

Heart of Atlanta Motel v. United States (1964)—Hotel refused service to

Blacks in violation of the Civil Rights Act. Is renting a hotel room interstate
commerce? YES. While congress does not have authority to correct social
wrongs, it does have the authority to regulate commerce to correct for social
wrongs in so long as commerce is being achieved. Ability to find lodging
while traveling is part of commerce—the more difficult it is for a class of
citizens then commerce is being weakened. The Concurrence wanted to use
a 14th Amendment §5 claim. But that may have been too broad.

Katzenbach v. McClung Sr. & Jr. (1964)—BBQ in Birmingham AL was a small

family owned restraint that refused to serve blacks in violation of the Civil
Rights Act. It received most of its supplies from a company in state, but that
company received most of its supplies from out of state. THUS in some way
the restaurant was dependent upon interstate commerce. Just like Farmer
Filburn “The appellee’s own contribution to the demand for wheat may be
trivial by itself, is not enough to remove him from the scope of federal
regulations where as here contribution taken together with that of many
others situation did the same situation is not trivial.” ALSO, this passes
rational basis test (government wants to open access to commerce to all
people).

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Hodel v Indiana (1981): Court upheld a federal law that regulates strip
mining and required reclamation of strip mining land.

Perez v. United States (1971): Majority: Congress aimed law at preventing

loan sharks, even though their practices could be entirely within a state the
fact that the predatory loans were the principal revenue for organized crime
meant that it was being used to facilitate illegal act that was occurring over
state boundaries. Dissenting: The way the law is written the federal
government does not have to prove that the criminal ∆ is linked to any
interstate action at all in order to prosecute…

The Tenth Amendment Between 1937 and the 1990s

- Only once has it been used to strike down a federal law… Which was
National League of Cities v. Usury (1976), Federal Min. Wage law case…
HOWEVER that was overturned by Garcia…

Garcia v. san Antonia Metropolitan Transit Authority (1985)—SAMTA believe

that it was a state entity, protected from having to pay employees federal
minimum wage under NLC v. Usury (case decided 8 years prior). Where
transit workers state worker for the purpose of the commerce clause, and
was that not protected like everyone else’s right to a min wage??? Belonging
to the classification of employee should have been interpreted as more
important than the classification than state autonomy… Thus, the Usury case
is wrong, and is overturned. Dissent made an interesting argument about
how now that state government do not choose their senators they are less
represented by the Congress…

4. 1990s-???: Narrowing of the Commerce Power and Revival of the Tenth

Amendment as a Constraint on Congress
The court brought back narrow view of the commerce clause, and use of
the 10th Amendment, but NOT as narrow as the Lochner era.

a. What is Congress’s Authority to Regulate “Commerce Among the

States”?

LOPEZ TEST—Federal Legislative Power, Commerce Clause, (Lopez

Test) Congress has power to regulate:
(1) Channels (of transportation, planes, trains, automobiles,
persons) of interstate commerce (I/C).
(2) Instrumentalities of Interstate Commerce.
(3) Activities that substantially affect interstate commerce must be
economic activity.

United States v. Morrison (2000)—Student at Virginia Tech who was raped

attempted to utilize the VAWA to seek remedy in federal court when the
school and state court failed to provide her with adequate remedy.

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However the court held that the Congress does not have authority to
regulate violence against women… Applied the Lopez test. (1) Regulate
channels of interstate commerce, (2) protect the instrumentalities of
interstate commerce even though the threat may come only from
intrastate actions, or (3) Congress commerce authority includes the
power to regulate those activities having a substantial relation to
interstate commerce … i.e. those activities that substantially affect
interstate commerce. Violence against women is a policing power issue,
which should be left to the states to decide how to punish—allowing the
Congress to get involved for gender related crime could become slippery
slope… Thomas’s Concurrence would even cut out the third aspect of
the test… DISSENTING OPINION, looks to the economic impact that
violence against women have upon the whole country each year as a
basis for justifying a VAWA… Notes that the court is failing to learn the
lessons of the Lochner era…

***Court has taken a narrow interpretation of the commerce clause

in a few cases.

United States v. Jones (2000)—A federal arson statute, the arson of a

dwelling had to be removed from the statute so that it did not become
unconstitutional (dwelling = not commerce according to the court).

Solid Waste v. United State Army Core of Engineers—U.S. wanted to use the
clean air act provision to protect the “navigable waters” could apply to
interstate waters hat had migratory birds… but the court said No.
Majority held that congress should not assume to have the authority to
extend its activity into state owned wetlands… but the dissent points out
that the Federal government has an obligation to protect migratory birds.

***Possible that court has moved back to accepting commerce clause

after Washington v. Gulia.

Gonzales v. Raich (2005)—Two CA citizens using marijuana in respect of

the state’s “Compassionate Use Act” are caught by county deputy sheriff,
situation turned over to DEA, and the court held that it could get involved
even though they were acting in the state, and with compliance with state
law? YES. Majority, If it does not sever to (1) regulate interstate
commerce, (2) protect the instruments of interstate commerce even
thought threat may come only from intrastate action, or (3) congress
commerce authority includes the power to regulate those activates
having a substantial relation to interstate commerce.. i.e. those activities
that substantially affect interstate commerce. In this case it falls under the
third category. (Basically, since the federal government can regulate the
use of pot as a narcotic, it can regulate all use of it, because no matter how
small or pursuant to whatever state law, it is adding to the existence in

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the interstate market for pot). The Concurrence, in addition to the

economic arguments, adds that Congress has the ability to act whenever
it is regulating something that it has the authority to regulate, regardless
of the economic impact (Scalia really does not like drugs), the dissents
bring up the value of states acting as laboratories of democracy
outweighing Congress’s interest, and the Thomas adds that this is distinct
from Famer Filburn who is selling, these two are not selling. This could
amount to federal government intruding in police power.

b. Does the Tenth Amendment Limit Congress’s Authority?

***Only three cases since 1990 to use 10th Amendment (first time since 1937)

New York v. United States (1992)—Congress makes a law that forces state
to take title of all low level radioactive waste within the state. Can
Congress make a law requiring the state to regulate low-level radioactive
waste in a particular way??? NO.
(1) “The allocation of power contained in the commerce clause, for
example, authorizes congress to regulate interstate commerce
directly; it does not authorize congress to regulate state governments,
regulation of interstate commerce.
(2) However this does NOT prevent the congress from using suggestive
means just not coercive means… for example.
(a) “Congress may attach conditions on the receipt of federal funding...
like the drinking age, and
(b) Congress has authority to regulate private citizens under the
commerce clause, under an action that operates as “co-operation
federalism”: where the federal government and the State
government can both have power over private citizens on an issue,
and the federal government law can displace the state law, but the
state is not responsible for carrying out the federal law (i.e. the
state government cannot become an agency for carrying out
federal laws)

***The constitution gives Congress the power to make law regarding radioactive
waste, and that they can preempt state law, but not sue to force states to carry out
federal laws.

D. The Taxing and Spending Power

“The Congress shall have power… to lay and collect Taxes… to pay the debts and
provide for the common defense and general welfare of the United States; but all
taxes shall be uniform throughout the United States.” Art. I, sec. 8 [1].

Two Questions Always to ask when considering if an Act (law) of congress

is constitutional?
1. Does Congress have the Power?
2. Is there a Constitutional LIMIT on that power?

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For What Purposes May Congress Tax and Spend?

interpreted by the courts broadly, US v. Butler has 10th Amendment limits that
have not been seen since, but are anticipating come back in t his more
conservative court, like in US v. NY and US v. Printz.

United States v. Butler (1936)—The agg. adjustment act declared that because of
a crisis in agricultural production the secretary of agg. among other powers
could set limits on production of certain crops, and impose taxes on production
of crops in excess of the limits… The court had a back and fourth argument
between what James Madison and Alexander Hamilton wanted.
James Madison: believing that the N+P clause is tied to the previous 17 clause
that come before it in Art. I); while
Alexander Hamilton: would believe that the N+P clause is not tied to the
previous 17 clauses and is an independent power of congress.

***Court holds that it was not in the N+P, by way of a James Madison argument
(since tax and spend is independent of N+P, Congress cannot use N+P to justify).

***Dissent: NOW THE PREVAILING VIEW:

1. Declaring a statute unconstitutional requires (1) when it violates the power
to enact it, and not what it is, or (2) the exercise of the law is
unconstitutional. It is proper to defer to the legislative body.
2. The power of congress to evoke taxes on agriculture is without question
(Power to tax).
3. It is helping the general welfare (controlling prices in the form of grants
and taxes).
4. There is no question that congress can give taxing authority to the
department of agriculture (and most importantly there is no problem
with uniformity).

Chas. C. Steward March. Co v. Davis—Commentary on the expansive view of

congress taxing powers, beginning in 1937, when the court upheld the social
security Act is tax provision that congress can enact (remember this is post
Lochner ear).

Sabri v. United States (1937)—Can the Congress make a law that punishes for
bribery, even when the bribe’s only nexus is the amount of federal funds made
available to the organization N+P?? YES. Because Money if fungible, bribed
officials are untrustworthy stewards of federal funds—similar to corruption… It
is enough that the government placed a large monetary benchmark in order to
evoke the interest ($10,000). Also, it is a means to a constitutional ends. The
dissent argues that this should have been a commerce clause issue, and that this
will allow Congress the opportunity to regulate things it has no business to be in,
through a back door of providing funds.

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Conditions on Grants to State Governments

The court has reasoned that while it odes not have the power to regulate state
and local politics it does have the authority to regulate how the grant money is
used.

South Dakota v. Dole (1987)—SD tries to violate the federal law regarding
drinking age (Congress requires 21+ in order to receive highway funding), SD
has something other than that, and sues for its funding back, court believes that
is not a violation of federal spending power.
4-part test for limitations on federal conditions for grants.
1. The constitution: The exercise of the spending power must be part of the
general welfare of the country. Highway safety is part of general welfare.
2. Condition must be unambiguously enable state to exercise choice: Even
if all of the states make the same choice… Only lose %5 of highway funds.
3. Must be related “to the federal programs or projects” : some nexus
between the funding and the action that the federal government wants out of
the state government.
4. Constitutional provision may provide an independent bar to the
conditional grant of federal funds: There does not appear to be one
according to Chief Justice Rehnquist.

NFIB v. Sebilus (2012)—The Health Care Case.

Issues: (1) Is the individual mandate constitutional?—YES. (2) Is the Medicaid
expansion constitutional?—No.
REASONING:
Commerce Clause and the Necessary and Proper Clause
On the issue of whether the individual mandate fell within the powers allotted to Congress
under the Commerce Clause and Necessary and Proper Clause, no single opinion was joined
by a majority of the Court. However, a majority of the Justices were of the opinion that the
individual mandate did not fall under these powers.
Chief Justice Roberts would have held that the individual mandate lay outside Congress's
Commerce and Necessary and Proper Clause powers, distinguishing the mandate from the
federal prohibition on marijuana cultivation and possession upheld in Gonzales v. Raich in
part on the ground that the latter regulated economic activity, while the individual
mandate penalizes economic inactivity. ***Congress has the ability to regulate commerce,
not force them into commerce.
Justices Scalia, Kennedy, Thomas, and Alito would have held that the individual
mandate was unconstitutional, for similar reasons.
Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, would have held
that the individual mandate lay within Congress's Commerce Clause and Necessary and
Proper Clause powers. Costs go off to everyone else, because the hospitals still serve people
who do not have health care, and just because they opt out of the health care scheme does
not mean that they are inactive of the health care market.
Medicaid Expansion
On the question of the expansion of Medicaid, no single opinion commanded the support of

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a majority of the Justices. However, a majority of the Court did find the expansion in some
way unconstitutionally coercive and severed the coercive mechanism from the act.
Chief Justice Roberts, joined by Justices Breyer and Kagan, would have ruled that the
Medicaid expansion could survive, but that states must be given the right to opt out of the
expansion without losing their pre-existing Medicaid funding.
Justice Ginsburg, joined by Justice Sotomayor, would have upheld the Medicaid
expansion in its entirety (with non-participating states losing all their federal Medicaid
funding).
Justices Scalia, Kennedy, Thomas, and Alito would have struck down the Medicaid
expansion completely (along with the entire Act).

E. Congress’s Powers Under the Post-Civil War Amendments—BLUE SHEET!

Use flashcards to memorize this AND the tests (rational basis, intermediate, etc)!

13th Amendment—Abolition of Slavery

§ 2: “Congress shall have power to enforce this article by appropriate legislation.”
§1: “Neither slavery nor involuntary servitude, except as punishment for crime where of
the party shall have been duly convicted, shall exist within the United States, or any place
subject to their jurisdiction.”
***THIS IS THE ONLY amendment that directly applies to private citizens, because it would
be useless if the state could not stop private citizens from enslaving people.

14th Amendment—Civil Rights (Citizenship; Privileges or immunities; due process; equal

protection)
§5: “The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.” –Very broad, allows the Congress to make and enforce law.
§1: “…No State shall make any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”

15th Amendment—Suffrage
§2: “The Congress shall have power to enforce this article by appropriate legislation.”

1. Whom May Congress Regulate Under the Post-Civil War Amendments?

United States v. Morrison (2000)—The VAMA case that had already lost on
commerce clause grounds was also challenged on 14th Amendment §5
grounds. However, the protection of woman could not be justified because §5
protects against the state or state actors, not PRIVATE citizens. That would
be police power, reserved for the states.

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2. What is the Scope of Congress’s Power

Narrow: Accords congress only authority to prevent or provide remedies for violations of
rights recognized by the Supreme Court; under this view, Congress cannot expand the
scope of rights or provide additional rights.
Alternative: Also accords Congress authority to interpret the Fourteenth Amendment to
expand the scope of rights or events to create new rights. Under this view, Congress may
create rights by statute where the court has not found them in the constitution, but
Congress cannot dilute or diminish constitutional rights.

Katzenbach v. Morgan & Morgan (1966)—NY law was in violation of the VRA,
majority held that the NY law could not be enforced (it was going to prevent
or disenfranchise PR voters by way of English requirement). However, the
dissent later becomes the thought process for the majority in future cases, as
the concept of Congress overstepping its authority to create laws under the
14th Amendment with the Supreme Court not already giving them permission
to do so through prior case law… Congress has to act according to a playbook,
the playbook being the cases that the Supreme Court uses to expand the
rights of citizens under the Amendment, and the Congress can not act beyond
that… and they did here…

City of Boerne v. Flores (1997)—A church needed to expand, but the city
ordnance prevented it from doing so, then the church sued the city under the
RFRA claiming that it could ignore the city ordinance due to religious right.
However, the Court held that RFRA was not a proper use of §5 of the 14th
Amendment by Congress. The stringent test the RFRA demands of the State
laws reflects a lack of proportionality between the means adopted and the
legitimate end to be achieved. Therefore, the RFRA is not a proper exercise of
Congress’ §5 power to “enforce” by “appropriate legislation” the
constitutional guarantee that no state shall deprive any person of “life,
liberty, or property without the due process of law” nor deny any person
“equal protection under the law.”
***We do not have a history of discrimination on religious grounds (usually
racial). The voting rights act was dealing with a long history of voting
discrimination, the judicial branch did not recognize racial discrimination,
especially things like voting.
Look to the history of the 14th amendment, Congress committee actually
purposed a version of the amendment that would have given congress
brooder power, but that was struck down, and then re-written to give
congress less power, and that was the version that was adopted. No longer
plenary but remedial.
So the power to determine the power of the 14th amendment, the congress
must rely on what the judiciary decides.
OTHERWISE, we would be allowing the Congress to treat the Constitution
like a general piece of legislation, which would allow the Congress to
constantly change the constitution with a simple majority vote.

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Proportional and Congruent: The means must be a congruent and proportionality

between the discrimination and the Congressional Action… THIS is called the Boerne Test.

F. Congress’s Power to Authorize Suits Against State Governments

1. Background on the Eleventh Amendment and State Sovereign Immunity
2. Congress’s Power to Authorize Suits Against State Governments
a. The Basic Rule: Congress May Authorize Suits Against State Pursuant
Only to §5 of the Fourteenth Amendment

LIMITS on Congress’s (and Judiciary) Power:

11th Amendment: “The Judicial power of the U.S. shall not be construed
to extend to any suit… against one of the United States by Citizens of
another State, or by Citizens … of any foreign state.” (state sovereignty).

The 11th amendment was a response by Congress to the Chisholm case

where a citizen from AL sued the state of GA for damages (without the
consent of the sate of GA). The π won the case, and there was outrage by
all of the states, an amendment to the constitution to undo the outcome
was passed by Congress within a matter of weeks, and ratified within a
year (back in the 19th Century).

Prevailing View: Forbids ANY suit against he Government (State

sovereign Immunity) AND in a case, Hans, a court reasoned that the 11th
Amendment is restriction citizens of a state from suing their own states…
NOT prevailing view: Affects Diversity Jurisdiction cases.

Three ways around the 11th Amendment in Federal Court .

1. Sue State Officers for injunctive relief (or damages to be paid by
them, but NOT when it is the state treasure would have to pay for
the wrong)
2. State Waives Immunity (gives consent): States often give consent
when it is responsible for actions (classically in torts) where it may be
responsible, and want the victim to have the opportunity to win on
the merits.
3. Congress may authorize (using 14th amendment §5 powers) suits
against State governments. Which means if a private citizen believes
that their rights under a law, which was created by congress under
Congress’s 14th Amendment §5 powers, THEN (and only then) can a
private citizen abrogate the States’ 11th Amendment sovereign
immunity. Congress can’t create the right, only enforce (Biltzer).

Shelby Country v. Holder (2013)—§4(b) (the formula for deciding which

state has to be further reviewed) of the VRA was found unconstitutional,
due to the fact that it is a heavy burden, and there is no longer data to
suggest that it is necessary (no more discrimination…). Thomas would
have repealed the whole law because this will happen again under the

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new formula (which has never been written), and Ginsburg would not
have repealed anything because Congress followed the playbook, acted
appropriately, and was renewing this law all along the way.

Fitzpatrick v. Biltzer (1976)—Can congress abridge 11th Amendment

sovereign immunity by exercising its authority under §5 of the 14th
amendment? YES. §5 of the 14th Amendment is an exception, because
congress can enact legislation to enforce the Amendment (which other
amendments lack), thus it can use states for falling to uphold the
protections of the Civil Rights Act of 1964 (a law that was created
utilizing §5). Remember, the 14th Amendment was written with the
11th Amendment in mind, and §5 of the 14th amendment expressly
gives the Congress the power to write laws that enforce the
Amendments protections, specifically against whatever state actions
could occur.

Seminole tribe of Florida v. Florida (1996)—May Congress allow suit

against a non-consenting state under the Indian Commerce Clause (or
the commerce clause for that matter???—NO. (1) The abrogation of
11th Amendment State sovereignty has to be unequivocally stated
(congress must clearly state that it is abrogating the 11th
amendment); and (2) the abrogation has to be authorized under the
constitution (congress must have constitutional authority to do so).
The Indian Gaming Regulatory Act was created under Art. I, and only
14th Amendment §5 cases have 11th amendment immunity. The
dissenters argue that 11th amendment is designed to prevent citizen suits,
this is not a citizen, it is a sovereign.

b. Cases Denying Congress Authority to Act Under §5 to Authorize Suits

Against State Governments
***After Seminole Tribe it is clear that Congress may authorize suits
against state government only when it is acting pursuant to §5 of the
Fourteenth Amendment. Therefore, the scope of Congress’s power under
the provision became crucial.

Kimel v. Florida Board of Regents (2000)—Challenge to a State College’s

hiring practice as a violation of the ADEA (age discrimination). Does the
ADEA contain a clear statement of congress’s intent to abrogate the
state’s 11th Amendment rights? Clear, but not appropriate. Congress
may abrogate the States’s constitutionally secured immunity from suit in
federal court only by making its intentions unmistakably clear in the
language of the statute, which it does. HOWEVER, to see if congress has
the constitutional authority to make the law, look to case to see that
congress can only do so when it has 14th Amendment §5 ability to do so.
AND age discrimination is not protected by the 14th Amendment. Dissent

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believes that Congress, not the court should decide which groups of
people need to be protected.

c. Congress’s Greater Authority to Legislate Concerning Types of

Discrimination and Rights that Receive Heightened Scrutiny

Strict Scrutiny: It must be necessary to achieve a compelling government purpose.

Discrimination based on RACE, RELIGION, NATIONAL ORIENTATION, ALIENAGE.
Or infringement of fundamental rights (speech, ability to carry guns, quarter soldiers,
double jeopardy).

Intermediate Scrutiny: It must be substantially related to achieving substantial

government purpose. GENDER, Children of unmarried spouses.

Rational Basis Test: Rationally related to government interest.

Nevada Department of Human Resources v. Hibbs (2003)—A man utilized

his time off from work under the FMLA, and wants to sue his employer (the
state) for a violation, the court held that he can because the law was created
utilizing §5—and the law is a congruent and proportionate to the target
violation, and intermediate scrutiny was appropriate when deciding the
constitutionality of the law (sex).
VIOLATION: Congress found that employers were disproportionally gave
time off to care for family to women. This means that men were unable to
receive same benefit, AND make women less marketable to employers.
TARGET: Was to equalize gender in the workplace for time off, by
guaranteeing everyone 12 weeks off per year to care for family.
PERPORTIONATE: because it set a minimum standard, it alleviated a former
state-sanctioned violation of equal protection.

3. Congress’s Power to Authorize Suits Against State Governments in State

Courts

Alden v. Maine (1999)—Group of probation officers were denied OT, and sued
under FLSA. But a state cannot be sued without consent within the state.
(1) tradition, states have to consent,
(2) FLSA is authorized by Art. I, NOT §5 of the 14th Amendment.
Dissenting: A state should not have absolute sovereign immunity from federal
laws within their state courts.
(1) It does not follow tradition, many states were not seen as sovereign entities
before the revolution, and only saw sovereign immunity as an aspect of the
crown,
(2) Congress must have requisite power, because the Federal government can
sue states for violating state law,
(3) If only the federal government can make the suit against eh state on the
behalf of the wronged party, then the entire system will become inefficient.

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IV. The Federal Executive Power

President’ Power arises from:
1. Express Act of Congress (Congress can allocate certain responsibility to the
president… however congress is limited in how it can do so); and/or
2. Express Constitutional Provision:
Vesting Clause: “The executive Power shall be vested in a President.” Art. II §1.
Take Car Clause: He shall take Care that the Laws be faithfully executed. Art. II,
§ 3.
Commander-In-Chief Clause: “He shall be Commander in Chief of the Army and
Navy of the United States.” Art II, §2.
(Pardon power, treaty power, appointment power); and/or
3. “Inherent” Authority (does that even exist?) … NO, over time there is an
undefined, twilight zone, of power derived from the executive.
-->For Example, The president is to speak for the nation for foreign affairs, and
when congress wants to allocate authority it may do so without limit.

A. Inherent Presidential Power

Federal Executive Power (Art. II)

“The executive Power shall be vested in a President of the United States of
America.”

Compare Federal Legislative Power (Art. I).

“All legislative powers herein granted shall be vested in a Congress of the United
States.”

***Under the Hamilton view, this is expansive (for the president), there is no
enumerated powers of the president mentioned here for the President, while
there are enumerated power for congress.

***Under Madison, this is just a housekeeping issue.

Youngstown Sheet & Tube Co. v. Sawyer (1952)—The President agues that as
Commander in Chief this is a war related decision (to seize the steel factories
and put the workers back to work), however, even under the expanding concept
of “theater or war,” the President cannot have the ability to seize steel factories
that should be an issue left to lawmakers not the President. This is because ti
takes Congress to also go to war, the President can only merely direct the
military and take action when action needs to be taken immediately, (so the
president could immediately take the factories, and turn them over to congress
to decide what to do with).
THERE ARE THREE WASY TO LOOK AT PRESIDENTIONAL POWER
(1). President’s power is at a MAXIMUM when she acts pursuant to
congress’s authorization (express or implied). When the President acts
pursuant to an express or implied authorization of Congress, his authority is at

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its maximum when he acts pursuant to Congress’s authorization (express or

implied).
(2) The President’s power is t MEDIUM (relies only on President’s own
independent power) when he acts in absence of Congress’s authorization
(silent). When the President acts in absence of either a congressional grant or
denial of authority, he can only rely upon his own independent powers, but there
is a zone of twilight in which he and Congress may have concurrent authority or
in which its distribution is uncertain.
(3) The President’s power is at LOWEST when he acts in a way against
Congress’s will (express or implied). When the President takes measures
incompatible with the expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own constitutional powers minus
any constitutional powers of Congress over the matter.
POWERS CONSIST OF:
- President’s own constitutionally-granted power,
- MINUS any power that Congress has over the matter.

The Scope of Inherent Power: The Issue of Executive Privilege

United States v. Richard M. Nixon, President of the United States (1974)—

President Nixon refused to comply with a court order Subpoena duces tecum to
provide Oval Office Tapes in the Watergate investigation due to absolute
privilege created by the executive branch of government. In a unanimous
decision the court held that the President did have to turn over the tapes.
***The President does NOT possess an absolute generalized privilege to keep secret
all communications with advisors and others. E.g. he may not withhold materials
relevant to a pending criminal prosecution. HOWEVER, the court did recognize
that there are times when confidentially is within the national interest.

B. The Authority of Congress to Increase Executive Power

TWO VIEWS…
(1) When Congress and the President agree, then the court cannot get involved;
(2) Always enforce separation of powers doctrine.

William J. Clinton, President of the United States v. City of New York (1998)—Can
congress give the president a line item veto??? NO—Congress does not have
the authority to grant this power to the president, notwithstanding the fact
that it makes a lost of sense, and is widely agreed upon. Lawmaking (Art I,
§7) “Every Bill which shall have passed the House and the Senate, shall, before it
becomes a law, be presented to the President of the United States; IF he
approves he shall sign it, but if not he shall return it… if after such
reconsideration two thirds of House shall agree to pass the bill, it shall be sent to
the house... if approved by the other house become law.” This would interrupt
in the process laid out in the constitution, can only be changed by an
amendment.

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***Dissenting opinion points out three reasons why that argument is not true.
(1) Congress had the ability at the founding to submit individual bills to the
president… thus the line item veto was never necessary (and constructively
always there).
(2) Congress has all legislative power, thus the congress has the ability to write a
law that changes how the federal government operates as long as it does not
violated something enumerated in the constitution. President has all
executive power, this would not change that.
(3) No dispute between branches of government, when both branches and major
parties agree, the court should not get involved.

C. The Constitutional Problems of the Administrative States

Broad power, difficult to have oversight.

1. The Non-delegation Doctrine and Its Demies

Concept that congress cannot give particular powers to agencies (even if it

wanted to dominated the court in the 1930s as it struck down New Deal
Legislation).

Whitman v. American rucking Association, Inc. (2001)—In almost 70 years in-

between Panama Refining Co. v. Ryan (1935) and Whitman, there was no use
of the non-delegation doctrine, but it could be coming back, but that is
doubtful…

2. The Legislative Veto and Its Demise

Immigration & Naturalization Services v. Jagdish Rai Chadha (1983)—An INS

court ruled that Chada met the requirements for staying, this is then
submitted to the Attorney General, and this is given to the House to affirm.
HOWEVER, the House passed a resolution that ordered deportation of
various people including Chada. Was the action of one House of Congress
alone a violation of structure of the constitution?? YES IT WAS!!! WHY—
Presentment clause, and bicameral requirement. The presentment clause
is a limitation on congress, all laws must got o the president, because if the
congress is able pass something that President thinks is unreasonable it
cannot pass. ALSO the bicameral requirement is a necessary aspect, because
the House is built to represent the interest of small states, while the Senate is
built to protect the interest of highly populated states.

ONLY FOUR AREAS WHERE A HOUSE OF CONGRESS CAN ACT ALONE:

1. HOUSE—brining Article of Impeachment.
2. SENATE—Convicting of Impeachment.
3. SENATE—Affirming of executive appointments.
4. SENATE—Ratify treaties.

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***Thus Congress no longer has administrative veto.

3. Checking Administrative Power

- Statutes (Congress)
- Budget (Congress) Power of the purse strings.
- Appointment Power (President and Congress).

The Appointment Power (Art. II, §2).

[2] “[The President] shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public Ministers and consuls,
Judges of the Supreme court, and all other Officers of the U.S. … but the
Congress may by Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.”
This mans that while the Senate confirmation is required for the
enumerated offices, all of the inferior officers for the federal government can
be appointed by the president AND WITHOUT Senate confirmation.

NLRB v. Noel Canning (2014)—Can the President fill vacancies utilizing the
Recess Vacancy Clause (Art, II §2 cla. 3) when the Senate is: (1) openings that
occur before the recess, (2) openings that come about during the recess, AND
is a recess just the time between congress’ or do they include the substantial
breaks that congress takes mid term (like summer vacation) and refers to as
recess as well? AND does it apply to pro forma sessions? Applies to all
EXECPT pro forma. ***If a Senate recess is so short that it does not
require consent of the House, then it is too short to trigger the Recess
Anointment clause.
***Also, keep in mind that, although Scalia would only see the true recess
(inter session, when it does not know when it will be meeting again as a
recess), the court keeps the summer vacations and other long breaks as
recess, the only time that it is concerned about is when the Congress
adjourns on a pro forma, where it can technically still meet at any time to
take care of any business (since the Senate has its own rules, which only
require quarm to do a vote, which quarm is always achieved as long as no
one disputes it… even two people).

Removal Power Implied

- General rule: President may fire any executive official.
- BUT, Congress may limit removal by statute if both:
(1) It is an office where independence from the President I s desirable;
AND
(2) The statute does not prohibit removal, but limits it to where there is
good cause.

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The Impeachment of Andrew Johnson

Andrew Johnson was acting contrary to the wishes of the Northern
Republicans leading reconstruction, Secretary of War Edwin Stanton openly
challenged the President’s authority, Johnson removed him in violation of the
law, Congress impeached Johnson, but the Senate failed to convict by one
vote.

D. Separation of Powers and Foreign Policy

Treaty Power
- President “Shall have Power, by and with Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur.”
- But—executive Agreements also have force of treaty.

Should the Constitution be read to give the President more power with
regard to the international affairs??? (Probably).

1. Are Foreign Policy and Domestic Affairs Different?

United States v. Curtiss-Wright Export Corp. (1936)—Congress passed a

resolution authorizing the President to stop sales of arms to countries
involved in the Chaco boarder dispute… FRD immediately issued an order
prohibiting ammunition and guns sales to warring nations… Curtiss Wright
Export did it anyway… Could the congress delegate this to the President?
YES!!! The President is the sole organ of foreign affairs, he is acting pursuant
to a resolution of congress, BUT the court does not seem to think that was
even necessary—the president already had this power inherent to the
authority of foreign affairs. The president is virtually unlimited in power of
foreign affairs, The usual limits of the Constitution do NOT apply.

2. Treaties and Executive Agreements

Art II §2 states that the President “Shall have Power, by and with the Advice
and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur.”

An executive agreement, in contract, is an agreement between the United

States and a foreign country that is effective when signed by the President
and the head of their government.
Treaty = Senate Approval required.
Executive Agreement ONLY the President and other foreign head required.

Dames & Moore v. Regan, Secretary of the Treasury (1981)—Dames and

Moore are most likely upset that they have pending damages against Iran
that are being excused by the arbitration tribunal… Can the president and

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the secretary of the treasury enter into agreements with other

countries to settle claims?? YES!!! Congress created a procedure to
implement future settlement agreements (when it allowed International
Claims settlement Act of 1949, and the 10 subsequent agreements the
President was able to infer that he had the authority to act the way he did.

E. Presidential Power and the War on Terrorism

1. Detentions

Art. I §9 [2]: “The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when is Cases of Rebellion or Invasion the public Safety
may require it.”

Hamdi v. Rumsfeld (2004)—Does the President have the power to detain

enemy combatants??? Does Hamdi (American Born) have a right to habeas
corpus petition in federal court???? Yes Enemy combatants can be
detained, and the plurality decided that he is entitled to a habeas
corpus petition.

War on Terror Cases

To decide what “due process” a U.S. citizen “enemy combatant” must receive,
the Court weighs:
Since Process is due, what do we have to look at? The Matthew’s 3-factor
test:
1. The Private Interest that will be affected by the official action.
2. The Government’s interest (including burdens the Government
would face in providing greater process).
3. Probable value of additional process (i.e., but reducing the risk of
error).

Notice in hearing to rebut the government’s presumption that the

person is an enemy combatant.

Government concerns: Security v. Liberty.

- We don’t want enemy combatants returning to the battlefield.
- We don’t want military personnel to spend their time collecting evidence.
- BUT we are concerned about the liberty of the detainees.

Boumediene v. Bush (2008)—Petitioners are at Guantanamo bay Cuba, they

have been taken from the battle filed, and determined to be enemy
combatants and are being denied a Habeas petition where they could prove
that they are not enemy combatants, and argue that their holding is in
violation of the Suspension Clause, Art. I §9 cl. 2. YES, it is an violation of
the Suspension Clause. Scalia believes that the writ should not apply to
non-citizens.

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3 Factors relevant in determining reach of Suspension Clause

A. The citizenship and status of the detainee and the adequacy of the
process though which the status determination was made,
B. The nature of the sites where apprehension and then detonation took
place, and
C. The practical obstacles inherent in resolving the prisoner’s entitlement to
the writ.

F. Checks on the President

1. Suing and Prosecuting the President

Immunity
Absolute Immunity—President has complete protection from Civil Suit
for all official actions while in office.
***BUT can a sitting president b criminal charged??? We really don’t know.

Richard Nixon v. A. Ernest Fitzgerald (1982)—Fitzgerald sought civil damages

from the President after he had been fired—claiming wrongful discharge.
Does the President have immunity? YES! This immunity only extends to
official actions of the President, AND the President is STILL subject to
impeachment as well as the constant scrutiny of the media. Dissent looks to
Marbury v. Madison—US is a government of laws not men.

William Jefferson Clinton v. Paula Corbin Jones (1997)—President Clinton

asked for temporary postponement of his civil action with Paula Jones. In all
three prior cases of a President trying to postpone, the first two settled
before taking office, and the third was denied… The court decided that the
President would be able to take care of his legal issue without interference
with his duties as President.

2. Impeachment

“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.” (Art. §4).

Remember, THIS is entirely decided by the House of Representatives.

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VI. Limits On State Regulatory and Taxing Power

A. Preemption of State and Local Laws

Supremacy Clause: “This Constitution, and the Laws… and all treaties... shall be
the supreme Law of the Land and the Judges in every state shall be bound
thereby, anything in the Constitution or Laws of any State to the Contrary
notwithstanding.”

1. Express Preemption—Not difficult, clear language of statute.

2. Implied Preemption—Three ways to describe (not mutually exclusive).

a. Conflicts Preemption—Where compliance with both federal and state

regulations is physically impossible (remember keep in mind Congress’s
intent).

Florida Lime & Avocado v. Paul, Director of the Department of Agg. of CA.
(1963)—CA requires Avocados sold in state have 8% oil amount before
they can be sold, this upsets FL growers who operate at the lower federal
standard. Does federal law preempt??? NO!! The Florida grower could
have just left the avocados on the vine longer for the ones going to CA to
satisfy the state law. Also, that was a floor not a ceiling by Congress.

b. Preemption Because State Law Impedes the Achievement of a

federal Objective—Where state/local law impedes the achievement of a
federal objective.

c. Preemption Because Federal Law Occupies the Field—Where the

scheme of Federal regulation is so pervasive that reasonable inference is
that Congress left no room for States to supplement it.

Arizona v. United States (2012)—The State of AZ created a controversial

law to “protect its boarder” which punishes the employees instead of the
employer (which now contradicts the method of criminalization that the
federal government had focused on). Through executive action the
Federal Government did not want AZ to deal with immigration this way,
and claims preemption over the entire field of boarder security. Does the
federal government preempt the Arizona law? YES!!!! Congress and
the President have the shared duty of boarder protection, and that does
not involve the states. Thus the federal government can occupy the whole
field, and preempt any state law. Scalia does not believe that there ever be
such a thing as field preemption…

B. The Dormant Commerce Clause—is the principle that state and local laws are
unconstitutional if they place an undue burden on interstate commerce. There is

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no constitutional provision that expressly declares that states may not burden
interstate commerce. Rather, the Supreme Court has inferred this from the
grants of power to Congress in Art. I, §8 to regulate commerce among the states.

***In absence of Congress action, the judiciary determines that a

state/local government is placing an undue burden on interstate
commerce.

1. Why a Dormant Commerce Clause?—The critical issue with regard to the

dormant Commerce Clause is whether the judiciary, in the absence of
congressional action, should invalidate sate and local laws because they place
an undue burden on interstate commerce.

Three justifications for the Dormant Commerce Clause…

1. Historical Argument: The framers intended to prevent state laws that
interfered with interstate commerce.
2. The Economic Justification: The economy I better off if state and local
laws impending interstate commerce are invalidated.
3. The Political Argument: States and their citizens should not be harmed
by laws in other states where they lack political representation.

Thomas’s reasons against the Dormant Commerce Clause: Textual

argument, the power is not in the constitution, furthermore, it should be the
role of the Congress to act affirmatively with the commerce clause power to
legislate state laws that it does not like out of effect, NOT the role of the
courts to render the state laws invalid.

H.P. Hood & Sons v. Du Mond, Commissioner of Agriculture of New York

(1949)—Is NY violating the commerce clause by denying the Massachusetts
milk corporation he ability to expand within the state of NY?? YES. States
have the ability to foster safety and protect citizens from health hazards, and
fraud, but the constitution prevents States from acting to protect commerce
and economical advantage… Every farmer, craftsman, etc, has the right to
access all markets within the United Sates.

“The peoples of the several states must sink or swim together, and that isn
the long run prosperity and salvation are in union and not division.” Justice
Cardozo.
Laws that advantage in states while disadvantaging other states violates
that principal.

2. The Dormant Commerce Clause Before 1938

The Marshall Court made it clear that States could not make laws in
interstate commerce because that was an area reserved for Congress,

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however, there was an exception to things that related to a state’s police

power.

Aaron V. Cooley v. The Board of Wardens of the Port of Philadelphia (1851)—

Can Philadelphia require all pilots entering their port to be local or force the
non-conforming parties to pay a fine without violating the commerce
clause??? YES—because the first congress wanted individual states to
have police power over this area of law. HOWEVER, limited to local
matters, the law might not be constitutional when applied to national
matters (or matters that are uniform, or not unique to local commerce)—the
Cooley Test—but where do we draw the line between local and
national?? Ambiguous…

3. The Contemporary Test for the Dormant Commerce Clause

a. The Shift to a Balancing Approach
b. Determining Whether a Law is Discriminatory

THE QUESTION IS—determining whether the state law is discriminatory

against out of staters!
If the State law treats out of state people differently than in state people
then there is a strong presumption against the law and it will only be
upheld if it is necessary to achieve an important purpose…
 The founders were concerned about protectionist state legislatures,
and also figured that if the state law applied equally to in state citizens
and out of state citizens then most of the people affected by the law
actually get to participate in the political process.

DORMANT COMMERCE CLAUSE 2-PART Analysis:

(1) Discriminatory Purpose?
- If YES struck down without question.
- If NO go to step 2, balancing…
(2) Balancing
- Discriminatory on FACE—strict scrutiny like test.
- Discriminatory in EFFECT—intermediately scrutiny + like test.
- Evenhanded—rational basis like test.

Facially Discriminatory Laws

Granholm v. Heald (2005)—Were NY and MI laws that prohibited online

sale of wine while allowing in state online sale of wine a violation of the
commerce clause discrimination (or was it permissible use of §2 of the
21st Amendment)??? It was a violation of the Commerce clause. The 21st
Amendment would make it possible for MI and NY to BAN ALL online sale
of wine, because it has the authority to regulate the sale of alcohol, but if
they were truly concerned about minors obtaining alcohol or tax evasion

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then the law is not valid, because just as likely with in state online sale.
Discriminatory in effect—Intermediate scrutiny +.

Hughes v. Oklahoma (1979)—OK state law prohibited the sale of minnows

that were gathered within the state to be sold out of state. Does the
ecological concerns of the state abridge the discriminatory practice of
limiting the sale of the minnows? NO, if the state was truly concerned
about removing too many minnows then it should have restricted the
number to be taken out, NOT where they can be sold.
the court accepts that there is a health safety and wellness reason for
the law, HOWEVER, there are nondiscriminatory alternatives, and that is
not met!

Facially Neutral Laws

“A court may find that a state law constitutes ‘economic protectionism’ on
proof either of discriminatory effect or of discriminatory purpose.”

Hunt, Governor of the State of North Carolina v. Washington State Apple

(1977)—NC passed a law which prohibited the use of apple grading labels
other than the USDA’s, however, the State of Washington, know for its
apples, utilizes a higher standard known very well in the apple trade,
Washington argues that even though it is NOT facially discriminatory, it is
discriminatory in effect, (1) more expensive to change the apple box
grads/labels, (2) not able to use their higher grade that they pay a lot for,
and (3) unable to utilize their higher quality at the market to distinguish
from competition.  Strict scrutiny + AND NC failed to meet its burden of
proving that there was a compelling state interest.

West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts

(1994)—Massachusetts creates a tax on all dairy famers, and the revenue
goes back to the in state dairy famers, but 2/3 of all dairy sold in the state
comes from out of state, which means out of state farmers are subsidizing
in state farmers. The State argues that it has the constitutional authority
to enact the tax, and that the tax is non-discriminatory since the tax
applies to all milk and non just the milk that is coming from out of state…
HOWEVER, The purpose and effect of the tax is to divert the market share
to in state dairy famers. This diversion necessarily injures the dairy
famers in neighboring states, which is a form of preservation of local
economic protection, which the commerce clause prohibits.
Political accountability issue, The only dairy famers who get to participate
in this sate’s political system are the ones who benefit from the tax
revenue.

Analysis If a Law is Deemed Discriminatory

Most cases are found to be discriminatory laws and struck down… but
not Main v. Taylor…

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Maine v. Taylor & United States (1986)—State banns a particular species

of minnow is banned from importation into the state (usually used for
bait). Citizen who wants to import argues that the state’s ban is in
violation of the commerce clause, however the state makes three
ecological arguments for why the law is in fact a necessary police power.
(1) Maine’s population of wild fish—including it won indigenous
minnows, could be placed at risk by three types of parasites prevalent
in out of state baitfish.
(2) Nonnative species inadvertently included in shipments of live baitfish
could disturbed Maine’s aquatic ecology
(3) There is no satisfactory way to inspect the shipments of baitfish
coming into the state to see if the parasite is present (because they are
tiny, and the shipments are huge).
SO, Main won! “The States retain authority under their general police
powers to regulate matters of legitimate local concern, even though
interstate commerce may be affected.”

c. Analysis if a Law id Deemed Non-discriminatory

Balancing Test—the conservative justices don’t agree with it, but the
court tends to favor a balancing test of the reason for the discrimination
(like ecological concern) against the economic discrimination.

American Trucking v. Michigan PSC (2005)—MI has a $100 tax on trucking

intrastate. The fee is NOT in violation of the commerce clause. The fee
does not impose any significant practical burden upon interstate trade.
The fee seeks to defray costs such as those of regulation “vehicular size
and weight” of administering insurance requirements and of applying
safety standards.

d. Exceptions to the dormant Commerce Clause

Congressional Approval When Congress, utilizing it plenary powers

in interstate commerce, creates a law that allows states to create a law
that would otherwise violate the dormant commerce clause (IT CAN).

Western & Southern Life Insurance Co. v. States Board of Equalization of

California (1981)—Congress created a law, the McCarran-Ferguson Act,
which decided that insurance taxation could be completely decided by
states (decided that there was a benefit to states giving incentive to in
state insurance companies through taxes). CA took advantage of this, and
an OH company sued and lost, the CA law was ok, because it was pursuant
to an act of congress. The act placed no limit on how the states could taxa
and regulate insurance companies, and the act placed no limit on what

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qualified to create the tax, all while the statute gives the state the ability
to make the tax and apply it to insurance companies.

The Market Participant 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.

Reeves, Inc. v. William Stake (1980)—In order to meet the state’s

increased demand for cement, the state built a cement factory. Then the
factory started supplying out of state companies… BUT then there was a
huge shortage one year, and the company made sure to fill in state orders
first, and then only use what was left to fulfill out of state orders on a first
come first serve basis. A frustrated out of state company sued, but lost
because the cement factory, although state owned, was acting within its
power as a company in the market.
***The purpose of the dormant commerce clause is to limit state
interference with private companies participating in interstate
commerce, however, when the company is state owned, then it should
serve a sate purpose, and not the same duty to provide for all people as a
private company would, therefore if a state policy were to have a state
owned company favor the in state purchasers it would not infringe upon
the dormant commerce clause.

White v. Massachusetts Council of Construction Employers, Inc. (1983)—

The city made an ordinance to prefer locals to work on projects that are
paid for with public funds, this is also a proper exception to the dormant
commerce clause, because when the city utilizes its own funds for the
construction, then it is in effect entering the market, and can do anything
that a private company would have the ability to do in the same situation.

South-Central timber Development, Inc. v. Commissioner, Department of

Natural Resources of Alaska (1984)—AK makes a law that demands that
Timber purchased from the state has to be processed at an in state
company. South-Central purchased the timber thinking that it could ship
it to its Japanese partner to be processed. AK and the dissent argue that
this was proper because AK was essentially selling at a discount with this
requirement attached, as a private company can do, however, the
majority decided that this was a violation of the private separate
economic relationships of its trading partners, that is, it restricts the post-
purchase activity of the purchasers, rather than merely the pre
purchasing activities.

WHAT MAKES AN entity a participant in the market????—Take the State name off of a
business, and see if the action would still be legal (so, market participant exception does
not apply when the state makes decisions that private companies physically could not
have).

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C. The Privileges and Immunities Clause of Article IV, §2

1. Introduction
“The citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.” Art. IV, §2.
The section in effect, prevents a state from discriminating against citizens
of other States in favor of its own.
The term CITIZEN, is a person who is a citizen of the United States (NOT a
corporation or a resident alien).

What are the “Privileges and immunities” covered by this clause? (e.g. that
“ear upon the vitality of the Nation as a single entity”)??

- Constitutional Rights (e.g. bill of rights)

- Important Economic Activates (e.g. ability to earn a livelihood).

There is a mutually reinforcing relationship between the Privileges and

Immunities Clause and the Dormant Commerce Clause.
Because they both prevent discrimination against out-of-staters…

However, there are three main differences…

1. The Privileges and Immunities Clause can be used only if there is
discrimination against out-of-staters. The dormant Commerce Clause, can
be used to challenge state and local laws that burden interstate
commerce regardless of whether they discriminate against out-of-staters.
2. Corporations and aliens can sue under the Dormant Commerce Clause,
but NOT under the Privileges and Immunity Clause… The privileges and
immunities clause is expressly limited to citizens where as no such
limitation exists with regard to the dormant commerce clause.
3. The two exceptions to the Dormant Commerce Clause (Congressional
Approval, and Market Participation by the states), do not apply to the
privileges and immunities clause.

2. Analysis Under the Privileges and Immunities Clause

TWO QUESTIONS:
1. Has the state discriminated against out-of-staters with regard to
privileges and immunities that it accords its own citizens?
2. If there is such discrimination, is there a sufficient justification for the
discrimination?
***Not absolute, but creates a strong presumption against the state when it
creates a law that discriminates against out-of-staters. However, it can be
justified.

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What Are the “Privileges and Immunities of Citizenship”?

Protection by the government, the enjoyment of life an liberty, with the
right to acquire and possess property of every kind, an d to pursue and
obtain happiness and safety; subject nevertheless to such restraints as the
government may justly perceive for the general good of the whole.

***Only apply with respect to those privileges and immunities earing upon
the vitality of the Nation as a single entity…
***Sufficiently fundamental to the promotion of interstate harmony.

TWO CONTEXT:
(1) When a state is discriminating against out-of-state with regard to
constitutional rights (which could be taken care of through applying the
bill of rights to the states through the Fourteenth Amendment), and
(2) When a state is discriminating against out-of-staters with regard to
important economic activities (bigger focus).

Toomer v. Witsell (1948)—IN order to shrimp, you need a license, $25 for in
state, and $2,500 for out of state. State claims that it needs to do so to protect
the shrimp… but the Court argues that it could have achieved this without
restricting the sale of shrimp licenses to out of staters…like placing stricter
limits on the number of shrimp everyone can take…

United Building & Construction Trades Council of Camden County v. Mayor &
Council of the City of Camden (1984)—City of Camden created a municipal
ordinance that at least 40% of the employees of contractors and
subcontractors working on City construction projects must be residents of
Camden… Is the Privileges and Immunities Clause applicable to protect
people from municipality discrimination??? Even when others in the
state are discriminate against?? AND does the fact that the
discrimination is only in employment protection???
***The court held that it does apply to municipal governments, under all of
those conditions. Also, the ability to seek employment is a protect right.

Lester Baldwin v. Fish & Game Commission of Montana (1978)—Out of state

hunters were required to pay more for licenses for hunting particular
animals… a few hunters who did not live in state decided to sue for a
violation of privileges and immunities. However, the court held that this
was not a violation, because hunting is recreational, not a fundamental
right (or fundamental economic interest).

***JUST LIKE COLLEGE EDUCATION: it is not a fundamental right, therefore

states can charge different tuition for in state students and out of state
students.

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ALSO, this would be a dormant commerce clause issue (and exception)

because the school is charging different amount for tuition, but so could a
private school if it wanted to, because it is in the Market exception…

What Justifications are Sufficient to Permit Discrimination?

The Court repeatedly has stated that Privileges and Immunities Clause is not
absolute. There is discussion in the above cases as to what interests are
sufficient to permit discrimination. The court’s most detailed consideration
for this issue is in the following decision.

Supreme Court of New Hampshire v. Kathryn Piper (1985)—Piper passed the

bar in NH, but lives 400 feet from the boarder in VT. NH argues that lawyers
have to live within the state because (1) to become, and remain familiar with
local rules and procedures, (2) to behave ethically, (3) to be available for
court proceedings, (4) to do pro bono and other volunteer work in the State.
HOWEVER, the court holds that this does not overcome the Privileges
and Immunities test, On its face this is discriminatory against a right to a
job/profession, and there is no evidence that out of state attorneys cannot
remain familiar with local rules and procedures, act any less ethically, be any
less available, or do any less volunteer work than in state attorneys. Dissent
believes that law is special profession, which should grant great deference to
bar association.

McBurney v. Young (2013)—π’s are residents of CA and RI, and make FOIA
requests in VA. HOWEVER, the state is not required to offer FOIA, and only
makes it available to state citizens (not to mention all of the information is
available otherwise, just more difficult to procure). The court holds that the
state not granting the FOIA request was not a violation of the Privileges
and Immunities Clause, because it was not a fundamental right. Here by
contract, Virginia neither prohibits access to an interstate market nor
imposes burdensome regulation on that market. Rather it merely creates and
provides to its own citizens copies with which would not otherwise exist of
state records.

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