Constitutional Law

Con Law Arguments: (none of these categories trumps another)

1. Text- what does it say? Start here
- Even if the text does not explicitly say it, it may still cover or touch on it
2. Original Meaning- when framers/ratifiers chose words they did, what were their
understandings at the time?
3. Structure- has to do with the design of the constitutional federal government
- You can draw inferences about meaning from the design
4. Ethos- National identity, what is the ethos that we think is important in this point of
our constitutional argument?
5. Moral Reasoning- Arguments about what is right and wrong
6. Historical Practices- How the government has understood its power over time
7. Consequences- If we let this happen, what will be the results?
- Example: If we torture, what will be the result? Will our people be tortured?
8. Precedent- (This is in center of chart because it draws on all other aspects of
constitutional argumentation)

Standards of Review:
Rational Basis Test: requires rational relation between the means chosen
and the achievement of a legitimate governmental objective
Intermediate Scrutiny: require a substantial relationship between the
means chosen and the achievement of an important governmental objective
Strict Scrutiny: requires a narrowly tailored scheme to accomplish the
achievement of a compelling governmental objective

Marbury v. Madison and Judicial Review:

-

Political question: Question that courts do not look over because it deals
with politics, not law
Questions that involve vested legal right: courts do rule on this b/c it deals
with law

Sources of Judicial Review:

- Oath that judges take when they take office saying that they will protect
the Constitution- stretch b/c every official takes similar oath and does not
have the power of judicial review
o Every federal official takes the oath, and therefore is entitled to
interpret it on his or her own
o Written
- Supremacy Clause- Text
- Arising under- Text
- Judiciary Duty- Structure
- Written Constitution- strongest
o If it is written down, should follow it
o Text and structure
- Some language presupposes courts are there to check actions of
Congress- consequences
- Consequences

SOURCE and SCOPE OF JUDICIAL POWER:

I.

Source/Authority of Federal Judicial Power Article III, section 1

a. Article III of Constitution provides that the federal judicial power shall
be vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish
i. Article III does NOT require Congress to establish any lower
federal courts nor grant them full jurisdiction to decide all
maters within federal judicial power

II.

Scope of Federal Judicial Power Article III, section 2

a. Federal courts are of Limited Jurisdiction
b. Article III, section 2 limits the federal courts to cases (among others):
i. Arising under the Constitution, an act of Congress, or a
federal treaty
ii. In which the United States is a party
iii. Btw a state and citizens of another state; and
iv. Btw citizens of different states (diversity cases)

III.

JURISDICTION OF THE SUPREME COURT

a. Original Jurisdiction
i. Article III Supreme Court has original jurisdiction over Cases
affecting Ambassadors, other public ministers and Consuls and
those in which a State shall be a Party.
1. Congress may NOT restrict nor enlarge Supreme Courts
original jurisdiction. (Marbury) Federal Courts may not
gain jurisdiction by consent.
2. Today Supreme Courts original jurisdiction is mainly
occupied by controversies between two or more states
b. Appellate Jurisdiction
i. Article III Supreme Court shall have appellate jurisdiction in
all other Cases before mentioned with such Exceptions and
under such Regulations as the Congress shall make.
ii. Power of Judicial Review
1. Marbury v. Madison established that appellate
jurisdiction includes power to hear appeals regarding the
constitutionality of:
a. Acts of branches of the federal government
(Executive/Congress) legislative acts
b. State statutes
c. State court judgments
iii. Restrictions on Appellate Jurisdiction Article III and
Congress
1. Article III Defines maximum extent of federal
subject matter jurisdiction (this is the ceiling)
a. Justiciability doctrines further limit access to
federal courts

i. Standing, [ripeness, mootness,] political

question doctrine
2. Congress Can statutorily limit federal court
jurisdiction
a. Federal court may ONLY hear matters where there
is:
i. Constitutional authorization; and
ii. Statutory authorization
b. Congress may also create Exceptions and
Regulations on Courts appellate jurisdiction
(but this power is disputed).
A. AUTHORITY FOR JUDICIAL REVIEW
I.
Judicial Review The power of the Supreme Court (and federal courts) to
invalidate or regard as invalid the actions of the legislative and
executive branch (or state statutes and state court judgments) if
they collide with the US Constitution.
II.

MARBURY v. MADISON
a. HOLDING Court rules against Marbury and held that the Supreme
Court could NOT constitutionally hear the case as a matter of original
jurisdiction.
i. Although the Judiciary Act of 1789 authorized such jurisdiction,
this provision of the statute was unconstitutional b/c Congress
can NOT expand original jurisdiction beyond Article III of
Constitution.
ii. Marshall took this as an opportunity to claim the power of
judicial review (but in a context least likely to draw
opposition)
b. Marshalls Reasoning Marshall structured the opinion around three
questions:
i. Issue 1 Does Marbury have a right to the commission?
1. YES Marbury has a right to the commission b/c all the
proper procedures were followed. Thus, withholding the
commission is violative of a vested legal right
ii. Issue 2 Do the Laws afford Marbury a Remedy?
1. YES Marshall states for every right, there is a
remedy. USA is a government of laws, not of men.
Thus, even President is not above the law.
a. Marshall draws a distinction When Judiciary can
review Executive actions:
i. Ministerial acts Judiciary MAY give
remedy against the Executive if it is a
specific legal duty to a particular
person.
ii. Political acts Judiciary may NOT
provide a remedy when the Executive
action is a political matter left to the
Presidents discretion.

iii. Issue 3 Can the Supreme Court issue this remedy? (Is
Mandamus appropriate?)
1. YES Judicial Review (including mandamus) is ONLY
appropriate regarding ministerial acts where the
executive has a legal duty to act.
a. Thus Marbury has right to commission and
Court has authority to issue writ of mandamus to
require the President to act.
iv. Issue 4 Does Court properly have Original Jurisdiction
to issue mandamus?
1. NO The Judiciary Act of 1789 does provide statutory
authority to issue mandamus here. However, the
Judiciary Act unconstitutionally expanded Original
Jurisdiction beyond Article III.
2. Congress may NOT expand the original jurisdiction of the
Supreme Court
a. Article IIIs list of areas of original jurisdiction
would be mere surplusage if Congress could
expand it at will.
i. Thus, the court does NOT have jurisdiction
because the Judiciary Act of 1789 violated
Article III.
v. Issue 5 Can the Court declare laws Unconstitutional?
1. YES The Supreme Court may declare laws repugnant
to the constitution to be unconstitutional and invalid.
a. The Constitution is law that can be enforced
in ordinary courts.
b. Constitution is supreme law and should
control over all other acts of Congress. (When
laws conflict Constitution must trump)
c. Constitution imposes limits on government
powers these limits would be meaningless
unless the Judiciary can enforce them.
d. Judiciary has supreme power to interpret
the Constitution
i. It is emphatically the province and duty
of the judicial department to say what the
law is
e. Courts authority to decide cases arising under
the Constitution implies a power to declare
unconstitutional laws conflicting with it.
III.

KEY PROPOSITIONS Marbury v. Madison:

a. Article III is the maximum of federal court jurisdiction
i. Congress can NOT expand the original jurisdiction of the
Supreme Court
1. Federal courts may NOT hear cases beyond what is
specified in Article III.
2. Federal courts can NOT gain jurisdiction by consent
b. Authority for Judicial Review of Executive actions

i. Judicial Review of Executive actions depends on the context:

1. Ministerial acts Judiciary has authority to review
executive actions involving individual rights and
government duties
2. Political acts Judiciary does NOT have authority to
review acts within the Presidents discretion (the only
check is the political process)
c. Authority for Judicial Review of Legislative Acts
i. Judiciary has authority to review legislative acts and invalidate
laws that conflict with the Constitution.
d. Judiciary is supreme in interpreting the Constitution
i. Marshall states: It is emphatically the province of the and duty
of the judicial department to say what the law is
ii. Must preserve separation of powers and system of checks and
balances.
1. If Congress can both write and interpret their laws, there
is no check on Congress power.
2. Judicial Branch is least dangerous branch of
government
a. Congress has power of the purse
b. Executive has power of the sword
IV.

JUDICIAL REVIEW OF STATE and LOCAL ACTIONS

a. Marbury v. Madison established power of Supreme Court to review
the constitutionality of federal executive actions and federal statutes.
i. Constitution does not explicitly say Supreme Court may review
state court decisions, but the Judiciary Act of 1789 provided for
review of state court judgments.
b. Supreme Court has authority to review State Court
judgments/interpretations involving Federal Laws or
Constitutional Laws (Civil or Crim cases)
c. Martin v. Hunters Lessee- Judicial power of the Supreme Court, by
the very terms of the Constitution, is to extend to state causes
concerning federal questions (this particular case involves a treaty)
i. Reasons:
1. Constitution has many restrictions of the state govt
within it that shows federal trumps it (supremacy clause)
*TEXT
a. Ex. Elections of state legislatures can he revised
by Congress
2. State bias may exist in their decisions- *Structire
3. Absolute right of decision has to lie somewhere, Finality*Structure
4. It can be abused anywhere, but Constitution gives most
power to Supreme
5. Consistency: Must be one overriding interpretation of
statutes, treaties, or Constitution throughout the land
*Structure

V.

VI.

6. Original Meaning7. Historical Practices- It is a historical fact Supreme Court

has maintained right he says Court has throughout
previous decisions
8. Consequences9. Federal courts deal with federal issues at all times,
therefore they will become experts on the issue, know
this law better than state courts
Counter-majoritarian dilemma
a. If government is elected by majority and these representing members
create laws, then these laws represent what the people want and
judicial review can easily overturn these laws with judicial review
Checks against judiciary:
a. Presidential nominations
b. Senate coordination
c. Constitutional Amendments
d. Regulating
e. Impeachment
f. Avoidance Canon
g. Passive Virtues
h. Political Question Doctrines
i. Certain questions are not appropriate for the Court to decide
ii. Courts just do not rule on certain things, such as what is socially
acceptable

NECESSARY AND PROPER CLAUSE

CONGRESS AND THE STATES Doctrine of Limited Federal Legislative

Powers
I.
Doctrine of Limited Federal Legislative Powers
a. Article I, 8: Necessary and Proper Clause: Allows Congress
to execute laws that are necessary and proper for carrying out
the enumerated powers of Article I, 8. All legislative powers
shall be vested in a Congress of the United States.
b. Tenth Amendment The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.
i. Throughout history, Congress powers have been defined
relative to the states.
1. Federal Government is of limited powers
2. State Governments are of general powers
c. Congress Power vs. State Sovereignty Federalism
i. Congress may act only if there is express or implied authority
in the Constitution.
1. Evaluating constitutionality of any act of Congress
involves two questions:
a. Does Congress have authority to legislate?

b. If so, does the law violate another constitutional

provision or doctrine? (interfering with separation
of powers or individual liberty)
2. However Congress has been interpreted to have broad
authority under provisions like the Commerce Clause
ii. States may act unless the Constitution prohibits the action
1. States possess police power power to protect
health, safety, morals, etc.
2. Evaluating constitutionality of state law involves only
one question:
a. Does the legislation violate the Constitution?
b. Supremacy Clause: All state rights and laws that
are contrary to constitutional rights are
subordinate to the Constitution

McCULLOCH v. MARYLAND SCOPE OF CONGRESSIONAL POWERS

I.
McCulloch v. Maryland (1819) Defining the scope of Congresss
powers and delineating the relationship btw Federal government and
the States.
a. Justice Marshall uses this case to broadly construe Congress
implied powers and narrowly limit the authority of State governments
to impede the Federal government.
II.
McCULLOCH v. MARYLAND DECISION
a. Maryland places a tax on the controversial National Bank. Bank
refuses to pay tax. Maryland sues to collect.
b. Question #1 Does Congress have authority to create the
National Bank? YES
i. Holding #1 Congress has authority to create Bank b/c there
is a rational basis to justify an implied power to create the
bank as reasonably linked to Congress enumerated power to
tax/spend/commerce.
1. Marshall refutes Marylands argument that States
maintain ultimate sovereignty because they ratified the
Constitution.
a. Constitution emanates from the People directly;
and NOT from the States
2. Marshalls method of Constitutional Interpretation
a. A Constitution should be interpreted differently
than a statute.
i. Constitutions are meant to be flexible to
endure over time.
1. Thus Court should be willing to
find implied powers
3. Marshall broadly interprets Scope of Congress
powers.
a. Federal government is of limited powers, but
federal government is supreme in its sphere.

III.

b. Framers decided to enumerate the powers of

Congress
i. However there are Implied powers
as well
c. Necessary and Proper Clause the (not so)
limiting modifiers
i. Marshall interprets necessary as
expanding Congressional power
necessary means conducive to or
convenient rather than indispensable.
Contrasts this from absolutely necessary
used in other parts of Constitution=
intratextualism. Marshall goes towards
the broader end of the spectrum here, as
opposed to strictly necessary
ii. Implying powers to Congress to have
the means to carry out its enumerated
powers. (Congress may use N&P clause to
enact laws, so long as those laws are a
proper means to an enumerated end)
iii. Rational Basis Test for Implied
Powers:
1. If there is some rational link
between Congress action and an
enumerated power the act is
Constitutional.
2. The ends must be legitimate
and consistent with Constitution
3. Courts will defer to Congress
(limiting judicial power)
c. Question #2 Is the state tax on the Bank constitutional?
NO.
i. Holding #2 It is unconstitutional for a state to tax a federal
entity like the Bank.
1. The power to tax is the power to destroy
2. Federal government is supreme in its sphere
a. State are subordinate and do NOT have authority
to destroy an entity of the federal government
(this would amount to veto power of states)
US v. Comstock- (2010) Federal civil-commitment statute authorizing
detainment of mentally ill, sexually dangerous federal prisoner beyond
date prisoner would have otherwise been released is upheld due to RBT
a. We look to see whether the statute constitutes a means that
is rationally related to the implementation of a constitutionally
enumerated power

COMMERCE CLAUSE

Interstate Commerce Clause is the clause Congress uses the most to justify
Congress using an implicit power

THE COMMERCE POWER

I.

Commerce Clause:
a. Article I 8 The Congress shall have the powerto regulate
Commerce with foreign nations, and among the several States, and
with the Indian Tribes.

II.

Four Eras of Commerce Clause Jurisprudence (really only three- b, c,

d)
a. 1790-1890s Gibbons defines Commerce Power is broadly, but it is
minimally used.
b. 1890s until 1937 Court narrowly defines scope of Congress
commerce power and uses Tenth Amendment as a limit.
c. 1937 1990s Court expansively defines Commerce Power and
refused to use Tenth Amendment as a limit on Congresss power.
d. 1990s-Today Court has again narrowed the scope of Commerce
Power and revived the Tenth Amendment as an independent, judicially
enforceable limit on federal actions .

III.

Three Central Questions:

a. What is Commerce?
i. It is one stage of business or does it include all aspects of
economics and business?
1. What is local and under state control?
2. What is interstate commerce and under Federal
control?
b. What does among the several states mean?
i. Limited to direct effects on interstate commerce; or does any
effect suffice?
c. Does the Tenth Amendment limit Congresss power over State
sovereignty?
i. If Congress is acting within scope of commerce power, can a law
be declared unconstitutional as violating Tenth Amendment?

1790s -1890s GIBBONS v. OGDEN BROADLY DEFINES COMMERCE POWER

I.

Gibbons v. Ogden (1824): NY State had given Ogden a license to

operate a ferry boat between NY and NJ. Gibbons has a license from
Federal Government to operate steamboat. Ogden sues arguing Gibbons
violated his monopoly rights given by NY. Ogden argues that Congress
commerce power is limited to trade only, not transport. Holding
Congresss commerce power extends to intercourse not just traffic.
Congress has broad power to regulate interstate waterways. Federal law

authorized Gibbons to operate ferry; thus the NY grant of a monopoly was

preempted by federal law under commerce clause.
II.

Marshalls Expansive Definition of Commerce Power

a. What is Interstate Commerce?
i. Interstate Commerce is NOT limited to trade, but includes
traffic and intercourse, navigation and all phases of
business.
1. Commerce undoubtedly is traffic, but is something
more: it is intercourse
b. What is Among the States?
i. Court defines among the states as concerning more than
one state.
1. Congress can NOT control completely internal commerce
within a state, but may regulate commerce if it has an
impact on interstate activities.
2. Among means intermingled with and cannot
stop at the external boundary line of the state, but may
be introduced into the interior
a. Congress can regulate ports (foreign commerce)
b. Congress can regulate any interstate
waterways (btw two states)
c. Does State Sovereignty (10th Amendment) Limit Congressional
Power? NO
i. Marshall rejects any constraint on Congress power to regulate
interstate commerce
1. Congress power over interstate commerce is plenary
or absolute
a. This is an express power (not merely implied)
2. Congress has complete authority to regulate all
commerce among the states.
a. Only check on Commerce Power is the political
process
i. NOT judicially enforced limits to protect
the states.
3. If state and federal regulation conflict Federal law is
supreme
a. Nature of plenary authority = the ability of
Congress to regulate commerce power and trump
any state laws that conflicts with the federal
power
4. HOLDING: where state and federal law conflicts, federal
law wins, but case doesnt directly address areas where
there is a void of regulation, but theres the idea that the
power is too broad and thus states can regulate until
congress steps in; if govt. doesnt act, then doesnt
mean that state actions in areas of silence are void or
that the federal govt is invalidated
Wilson v Black-Bird Creek Marsh Co (1829): Wilson, the owner of a
sloop who was licensed under federal navigation laws, broke through a

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dam that blocked his passage which was built by the Black-Bird Creek
Marsh Co. and had been authorized to do so by Delaware law. The
company brought a case against Willson, claiming Delaware authorized
the building of the dam through a law which was passed under the police
power of the state in order to clean up a health hazard and there was no
legislation by Congress dealing with the same subject matter. Wilson
claimed that the law authorizing the building of the dam was a violation of
the commerce clause. Holding Marshall ruled that because no federal
law dealt specifically with the situation, and the state law did not violate
Congress' Dormant Commerce Clause power, the state law was valid. The
law was a valid exercise of state police power b/c it affected the health,
safety and welfare of the people of Delaware.
5. The Dormant Commerce Clause, also known as the
Negative Commerce Clause, is a legal doctrine that courts
in the United States have inferred from the Commerce Clause in
Article I of the United States Constitution. The Commerce
Clause expressly grants Congress the power to regulate
commerce "among the several states." The idea behind the
Dormant Commerce Clause is that this grant of power implies a
negative converse a restriction prohibiting a state from
passing legislation that improperly burdens or discriminates
against interstate commerce. The restriction is self-executing
and applies even in the absence of a conflicting federal statute.
6.
As long as Congress has not exercised its power over
commerce in a certain area, a state may regulate that area as
long as such regulations do not conflict with the Dormant
Commerce Clause of the U.S. Constitution.
III.

Framework following Wilison: ASK: has what the state done violate of
Congress ability to regulate commerce?
1.
Court included: mining, manufacturing and agriculture
are local endeavors
2.
If these are regulated, then this is a permissible exercise
of police power by the states
3.
Doesnt constitute commerce b/c is what precedes
commerce
4.
This is internal commerce reflection of state police
power The products produced may be sent into interstate
commerce, but the mining is local and therefore the impact on
commerce is INDIRECT B/c its INDIRECT impact, the states
may regulate

1890s 1937 Era LIMITED FEDERAL COMMERCE POWER

I.
Aggressive use of Judicial Review to Invalidate Economic
Regulations
a. Conservative Justices committed to laissez-faire economics and
strongly opposed to government regulations (idea of Freedom
to Contract emerges)
i. Court regularly invalidated federal laws as exceeding the
scope of Congresss commerce power or violating the Tenth
Amendment and the zone of activities reserved to states.

11

ii. Also in this era Court invalidated federal laws as interfering

with economic substantive due process and violating freedom
of contract
b. Dual Federalism federal and state governments were separate
sovereigns and each had its separate zone of authority. Judiciarys
role is to protect the states by interpreting the Constitution to protect
the states zone of authority.
c. Three Doctrines reflected Dual Federalism:
1. Court narrowly defines commerce to leave a zone of
power reserved to States.
2. Court narrowly defines among the states so Congress
may regulate only when there was a substantial effect on
interstate commerce
3. Court used Tenth Amendment to reserve a zone of
activities to States
1. Even if regulation was within commerce power law was
unconstitutional if it invaded the States zone of
interest protected by Tenth Amendment.
II.

NARROW DEFINITION OF COMMERCE

a. 1890s-1937 Court narrowly defined commerce to mean trade
(not production) in order to preserve a zone of authority to the
States.
i. Early view Commerce does NOT include manner of
production which is wholly intrastate and cant be reached by
Congresss under commerce power.
b. Early distinction btw Production (state control) and Trade
(federal control):
Unites States v. E.C. Knight (1895): US attempted to use Sherman
Anti-Trust Act to stop a monopoly in the sugar refining industry.
Holding Congress can NOT use commerce power to stop a monopoly
in the production of sugar. Court holds that production or
manufacture is NOT interstate commerce even though it effects the
whole nation. Only States have power to police monopolies of
intrastate manufacturing. The effect on interstate commerce was only
indirect and thus outside the scope of federal power.
Carter v. Carter Coal Co (1936): Can Congress pass New Deal
legislation bringing significant regulation of Coal Mining Industry
(minimum wage, labor regulation, price fixing). Holding Court
invalidates this New Deal law b/c it falls outside Congress commerce
power. Mining (like manufacturing) is NOT commerce and therefore
outside of federal control. Dangerous step toward eroding State
sovereignty to allow Congress to regulate local activities. Judiciary
must protect the States issues of labor unions, minimum wages,
etc are local issues. This law involves only indirect effect on
interstate commerce because it deals with manufacturing of goods that

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will eventually travel interstate. (Congress cant regulate mining b/c it

precedes commerce.)
III.

NARROW DEFINITION OF AMONG THE STATES

a. Requirement of Direct Effect on Interstate Commerce
i. 1890-1937 Court interpreted among the states as
requiring a direct effect on interstate commerce in order for
Congress to regulate. But court was inconsistent.
1. Direct Effects Trading and transportation of goods
between states
a. Congress has authority to regulate direct
effects (movement)
2. Indirect Effects Manufacturing of goods intrastate
that will eventually travel through interstate commerce.
a. Production of goods is a local activity under
exclusive State control.
b. Congress could NOT regulate indirect effects on
commerce.
b. Stream of Commerce Approach
i. Court allowed Congress to regulate to protect the stream of
commerce
1. Congress can reach into intra-state activities if they
have a direct effect on the stream of commerce
between states.
c. Example Upholding regulation of intra-state activity w/
direct effect on commerce
Shreveport Rate Cases (1914): RR runs intra-state as well
as interstate lines. RR charges high rate for line btw TX and LA.
RR charges lower rate for same distance inside TX. Can
Congress regulate RR and require equal rates for interstate
lines? Holding YES. Congress may regulate RR lines b/c the
unequal rates have a direct effect on stream of interstate
commerce.
d. Example Invalidating regulation of intra-state activity w/
mere indirect effect
Schecter Poultry (1935): New Deal law provided for Poultry
Codes regulations for NYC chickens imported from other states.
Law designed to protect against diseased chicken and regulated
labor hours. Holding Court invalidated law because there
was NOT a sufficiently direct effect on stream of interstate
commerce. Although chickens had come from out of state, they
had reached final destination in NYC. Thus chickens had
stopped being in stream of commerce. Law struck to protect
state sovereignty over local intra-state activities.

IV.

TENTH AMENDMENT AS A LIMIT ON CONGRESS POWER

a. Tenth Amendment The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the People.

13

b. Key Question Is Tenth Amendment a judicially enforceable limit on

Congress powers?
i. If federal law is otherwise within the scope of Congress powers,
can it be declared unconstitutional simply as violating the Tenth
Amendment?
c. Two approaches to interpreting Tenth Amendment:
i. Approach #1 Tenth Amendment is merely a reminder that
Congress may only legislate if it has express or implied
authority in the Constitution (truism)
1. Under this approach, a federal law can never be
unconstitutional simply as violating the Tenth
Amendment
ii. Approach #2 Tenth Amendment protects State
sovereignty from federal intrusion
1. Tenth Amendment reserves a zone of activity for
exclusive state control and federal laws intruding into
this zone must be declared unconstitutional
d. 1890s-1937 Court used Tenth Amendment to protect State
sovereignty over production and federal laws regulating intrastate production were declared unconstitutional.
i. Even if activity was commerce and among the states,
Congress still could NOT intrude into the zone of activities
reserved to States by the Tenth Amendment
1. Congress could NOT regulate intra-state mining,
manufacturing, production
ii. However Court allowed Congress to regulate intra-state
production of inherently morally evil products (lottery
tickets and tainted milk).
e. Example Using 10th Amend to invalidate federal regulation of
interstate commerce
Hammer v. Dagenhardt (1918): Child Labor regulation
prohibited shipment in interstate commerce of goods produced
in factories that employed children under 14. Holding Even
though law only applied to goods in interstate commerce, the
Court invalidates law because it regarded production.
Regulating hours of labor of children is production and is
entirely within the State police power. Court argues that if
Congress can regulate production inside a state, federalism is
destroyed.
f.

Counter Example Court upholding federal regulation of

moral evils (lottery)
Lottery Case (1903): Court upholds federal law prohibiting the
interstate shipment of lottery tickets. Even though lottery
tickets are produced intra-state, Court concluded that sale of
lottery btw states polluted the channels of interstate
commerce with moral evil. Thus Court makes an exception
for federal regulation of inherently moral evil products and

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upholds the federal regulation. Court rejects argument that the

federal law violated Tenth Amendment. (analogous to tainted
milk)

1937 1995 ERA BROAD FEDERAL COMMERCE POWER

I.
Causes for Change in Doctrine Depression and New Deal
a. Great Depression:
i. Economic crisis made laissez-faire economics seem untenable.
ii. Courts wide use of Judicial Review to invalidate national
economic regulation seemed anachronistic in the face of
depression.
b. FDR and Court Packing
i. FDR is re-elected in 1936 by wide margin mandate for New
Deal Programs
ii. FDR tries court-packing to pass New Deal legislation, but fails
1. However In 1937, Justice Owens changed his position
and upheld New Deal economic regulations
II.

KEY DECISIONS CHANGING COMMERCE CLAUSE DOCTRINE

a. 1937-1942 Court makes a huge shift in Commerce Clause
Doctrine:
i. Court overrules the earlier era of decisions and expansively
defines the scope of Congress commerce power.
1. From 1937-1995 Not one federal law was declared
unconstitutional as exceeding the scope of Congress
commerce power.
b. Example Congress regulating labor b/c substantial effect
on interstate commerce
i. Overruling direct/indirect effects and
transportation/production distinctions
NLRB v. Jones & Laughlin Steel (1937): Court upholds
federal law regulating labor unions because labor disputes have
a substantial effect on burdening free flow of interstate
commerce. Court shows major shift by rejecting the old
production vs. transportation distinction. The fact that the
employees were engaged in production is NOT determinative.
Congress has plenary power to protect interstate commerce
no matter the source of the dangers which threaten it.
c. Example Congress may control Production of goods shipped
in interstate commerce
i. Overruling Hammer v. Dagenhart Court rejects Tenth
Amendment as a limit on Congress commerce power (merely a
truism).
United States v. Darby (1941): Lumber Mill (D) sells products
to several states. Fair Labor Act prohibited the shipment in
interstate commerce of goods made by employees paid less
than minimum wage. Holding Court upholds federal law
under commerce power. Although intra-state manufacturing is

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not commerce, the shipment of goods interstate is commerce

and Congress may regulate it. Court rejects Tenth Amendment
as a basis for invalidating laws merely a truism
d. Example Very broad view of commerce reaching Cumulative
Substantial Effects
i. Complete rejection of old test of direct effects on
interstate commerce
ii. Court broadly interprets Commerce Clause as permitting
Congress to regulate even small intra-state activities with
negligible impact if the activity, looked at cumulatively, had
a substantial effect on interstate commerce.
iii. Marks surrender of Court in reviewing the Actions of
Congress under the Commerce Clause Congress made
decision to regulate on a REASONABLE/RATIONALE basis and
feels that the aggregate effect of wheat growers will affect
interstate commerce, then the Court will not second guess that
decision
Wickard v. Filburn (1942): Agricultural Adjustment Act set
quotas for wheat production. Filburn has small dairy farm and
grew wheat only for home use. Filburn argues AAA could not
constitutionally apply to him b/c his wheat was only for personal
use and was never sold to anyone. Holding Court upholds
application of federal regulation to small farmers home-grown
wheat b/c of the cumulative/aggregate effect of that wheat
on national market. Even though his wheat alone/individually
had trivial impact, Congress could regulate his production b/c
cumulatively/in aggregate homegrown wheat had a
substantial effect on interstate commerce. Problem
Looks like there is NO limit on Congress power.

III.

THE TEST FOR THE COMMERCE CLAUSE AFTER 1937:

a. 1937-1990s Very Expansive view of Congress Commerce
Power:
i. From 1937-1995, not one federal regulation was invalidated as
beyond scope of Congress commerce power. Court gives up
limiting federal commerce power
ii. Extreme Deference to Congress if there is any rational
basis that the regulated activity substantially effects
interstate commerce.
1. Broad definition of commerce
1. Reject old distinction btw direct/indirect effects or
trade/production

16

2. New Test Congress may regulate any activity

(intrastate or interstate) that has a substantial effect
on interstate commerce.
a. Congress can even regulate small/individual
activities that, looked at cumulatively/in
aggregate, have a substantial effect on
interstate commerce.
b. Court will uphold any law enacted under
Commerce Clause if there is a rational basis
for Congress to find that the regulated activity
substantially effects interstate commerce.
i. Huge deference to Congress on what
effects commerce
2. Broad definition of among the states
1. Court extended the meaning of commerce among the
states to include authority for Civil rights laws,
regulatory laws, and criminal laws.
3. Rejection of Tenth Amendment as a limit on Congress
commerce power.
1. No longer was Tenth Amendment used to limit Congress
power.
IV.

VERY BROAD MEANING OF COMMERCE AMONG THE STATES

a. 1937 -1995 Congress enacted wide array of federal legislation
under commerce clause
i. Courts broad interpretation of commerce among the states
upheld all regulations.
b. Rational Basis Test:
i. Court gives broad deference to Congress and asks only two
questions:
1. Did Congress have a rational basis for finding that
the regulated activity had a substantial effect on
interstate commerce?
2. Are the means selected reasonably related to
protecting commerce (the ends)?
c. Example Civil Rights Laws Enacted under Commerce Clause
i. Civil Rights of Act of 1964 Enacted by Congress under
commerce power.
1. 1883 Court held that Fourteenth Amendment only
permitted Congress to regulate government conduct
and state activity (not private behavior)
2. Uncertain in 1964 whether Congress could use the
Fourteenth Amendment ( 5) to outlaw private
discrimination in employment and public
accommodations.
a. Thus Congress used commerce power to
enact Civil Rights Act

17

b. Under this approach ask: Could Congress have

reasonably concluded that this kind of
transaction, even if local, has a substantial
impact on interstate commerce?
c. If YES it has a real and substantial
relation to the national interest b/c
commerce is diminished through
discriminatory practices, then Congress
may regulate the activity
Heart of Atlanta Motel (1964): Motel operated near
interstate highway discriminated against blacks. Holding
Civil Rights Act applies to Motel b/c there is a rational basis for
Congress finding racial discrimination had a substantial effect
on channels of interstate commerce. Discrimination effects
black travelers. It makes NO difference that Congress has a
moral motive for the regulation. Dating back to Lottery
Cases, court had upheld federal exercise of commerce power to
remedy moral evils.
1. TEST: Determinative test for Congress exercise of
power under Commerce Clause = whether the activity
sought to be regulated is commerce which concerns
more States than one and has a real and
substantial relation to the national interest
Katzenback: Small family-owned Ollies BBQ restaurant
discriminated against blacks. Court upheld application of Civil
Rights Act to small restaurant via commerce power. Restaurant
got 46% of its meat from out of state. Holding Court
concludes that Congress had rational basis to find
restaurants discriminating against blacks, looked at
cumulatively, had a substantial effect on interstate
commerce. (RULE: Although an activity may be regarded as
local and may not be regarded as commerce, it may still be
reached by Congress if it exerts a substantial economic effect
on interstate commerce)
d. Example Federal Regulatory Laws Enacted under Commerce
Clause
i. Congress can regulate purely intra-state activities, including all
aspects of business, if there is a rational basis for the belief
there is an effect on interstate commerce.
Hodel v. Indiana (1981): Court upheld a federal law that
regulated strip mining. Court stated that it will only invalidate
a federal regulation enacted under commerce power if there is
NO rational basis.
e. Example Federal Criminal Laws Enacted under Commerce
Clause
Perez v. United States (1971) Court upholds federal law
criminalizing loan sharking. Congress has plenary power to
protect the challenges and instrumentalities of interstate
commerce from misuse. Even though extortionate loans are
wholly local, Court concluded that Congress had a rational

18

basis for finding that loan sharking effects national

organized crime and thus has a substantial effect on
interstate commerce. Dissent argues this is slippery slope
because ALL crime is a national problem. No limit to
Congress power to intrude on States sovereignty over police
power.

1995 TODAY THE MODERN COMMERCE POWER

I.
1995 Present Narrowing of the Commerce Power and Revival
of Tenth Amendment as a Constraint on Congress Power
a. The New Era Modern Court seems committed to limiting scope of
Congress commerce power and protecting state sovereignty by
invoking the Tenth Amendment.
i. Ask: What is Congress authority to regulate among the States?
1. Needs to be related to commerce and have some sort of
commercial impact
ii. In Lopez (1995) For the first time in 60 years, the Court
invalided a federal law as exceeding Congress commerce
power. (regulation of guns is not commercial)
iii. In New York (1992) The Court again used the Tenth
Amendment to protect state governments from federal
encroachments into state sovereignty.
b. Examples Narrowing Congress Commerce Power over NonEconomic Activities
i. New distinction between Economic and Non-Economic
Activities
1.
Congress may regulate economic activities based on
cumulative/aggregate impact
2.
However non-economic activities may NOT be
regulated solely on cumulative impact. Requires showing of
substantial effect on commerce. Categories!
United States v. Lopez (1995): Congress passes Gun-Free School
Zone Act under commerce power making it a crime to possess a
firearm near school zone. Holding Act unconstitutionally exceeds
Congress commerce power b/c the law is a criminal statute that bears
NO relation to commerce or any sort of economic enterprise. New
rule If the regulated activity is non-economic, then court will
NOT look to cumulative substantial effects on interstate
commerce. For non-economic activity must show clearer nexus
btw statute and commerce. Criminal law is traditional area of State
sovereignty. Act has nothing to do with commercial activity at all, so it
is an unconstitutional interference w/ States police power. There must
be some limit to protect States rights. (Congress authority is not
without bounds)
Dissent Court should use restraint and give deference to congress
via rational basis test. Majority is trying to revive formulaic tests
for commerce power that are outdated.

19

United States v. Morrison (2000): Under commerce power,

Congress passes Violence Against Women Act to create a federal cause
of action for victims of gender-related violence. Congress found that
gender violence costs US economy billions and contracts womens
freedom of travel. Holding Act exceeds Congress commerce power
b/c there was insufficient evidence this non-economic activity
substantially effected interstate commerce. Court emphasized that
Congress was regulating non-economic activity that is traditionally
under State Laws. Court does NOT overrule Wickard, BUT For
regulations of non-economic activity, court will NOT look at
aggregate effect on interstate commerce. Need distinction btw
what is truly national and truly local.
Court has ultimate authority to decide if Congress can regulate
interstate activity
c. Example Narrowly Interpreting Laws to Avoid Constitutional
Doubts
Solid Waste Agency (2001): Clean Water Act regulates
discharge of materials in navigable waters. Agency had
interpreted statute to apply to temporary ponds which are
habitat of migratory birds. P wants to build dump on land.
Agency refuses to grant permit. Holding Court avoids
difficult constitutional question of whether Act exceeds
Congress commerce power. Instead the court resolves the
case by reading the Statute very narrowly. Court rejects
Agencys reading of the statute as extending to temporary
ponds for migratory birds. Court will avoid constitutional
collision if the fight is unnecessary.
d. Examples Upholding Federal Law and Rejecting Commerce
Clause Challenges
i. In 2005 Court reaffirms that Congress may regulate
economic activity by looking to cumulative impact
across nation to determine if the economic activity has a
substantial effect on interstate commerce.
Gonzales v. Raich (2005): Court holds that Congress may use
its power to regulate commerce among the states to prohibit
possession of small amounts of home grown marijuana for
medicinal purposes. CA passed a law exempting medical
marijuana from criminal prosecution. (note: direct conflict b/w
state and federal law) Federal agents arrested Ps under federal
law banning all possession. Holding Court upholds federal
prohibition because home-grown marijuana, looked at
cumulatively, has a substantial effect on interstate
commerce. Regulating marijuana was also part of Congress
broader regulatory scheme. Court reaffirms Wickard Court
will uphold federal regulation of economic activity if there
is a rational basis for finding substantial effects on
interstate commerce in looking at the activity in the
aggregate.

20

II.

THE SCOPE OF CONGRESS COMMERCE POWER TODAY:

a. The Modern Test for the Constitutionality of Commerce Clause
Regulations:
i. Congress, under its commerce power, may regulate:
1. Channels of interstate commerce; and
2. Instrumentalities of interstate commerce
(persons/things within) ; and
3. Economic activity having a substantial effect on
interstate commerce
a. Rational Basis Test Court will generally
defer to Congress if they had a rational basis
for finding that the regulated activity had a
substantial effect on interstate commerce
i. The means chosen must also be
reasonably related to the legitimate end
of regulating interstate commerce.
ii. For economic/commercial activities
Congress may consider substantial
effects on interstate commerce based on
cumulative/aggregate impact across
the nation (Court will give more deference
to Congress)
iii. For Non-economic/non-commercial
activities Congress may NOT look to
cumulative/aggregate impact to
determine substantial effect on
interstate commerce
1. Court requires a clear nexus
btw statute and interstate
commerce
b. Court will narrowly construe Statutes to avoid
unnecessarily reaching constitutional questions
on exercise of commerce power
ii. Tenth Amendment as a Limit on Congress Authority:
1. Even if Congress acts within its commerce power
Tenth Amendment bars Congress from compelling
state governments to implement federal laws
a. Congress may NOT directly commandeer
state legislatures to enact or administer a
federal regulatory program
b. Congress may NOT commandeer state
executive officials to implement a federal
mandate
c. Congress may prohibit harmful conduct by
state governments, particularly if the law also
applies to private entities

21

III.

i. However Congress may NOT impose

affirmative duties on state
governments
National Federation of Independent Business v Sebelius (2012)
a. The federal government enacted the Patient Protection and Affordable
Care Act, which, among other things, had an individual mandate and
a Medicaid expansion
i. In this case, Chief Justice Roberts brings an original meaning
argument, saying that Framers created a formalist idea
1. He gets the economic argument that non-activity affects
commerce, but Framers accepted that and understood
this, but put limits on Congressional power by limiting
their power to just economic ACTIVITY
ii. If you have not voluntarily joined the market, govt cannot force
you to using the Commerce Clause (Roberts)
iii. Roberts says Framers created line by using language interstate
commerce, meaning Congress can only regulate commerce
already in motion
1. AFA forces people into market
a. This creates activity, does not let people choose if
they want in
b. Wickard, Raich, Comstock, there was already a
market
i. Such as Comstock, people were already in
custody

TAXING AND SPENDING POWER

Art. 1, 8, cl. 1 grants Congress power to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the common defense and general welfare of
the United States.
Taxing Power Test: Is this law capable of raising revenue?
- No law using taxing power has been struck down since 1996
- It seems anything capable of bringing in money will raise revenue
- Really easy to do b/c test is so easily satisfied
- Only problem: Taxes are extremely unpopular, so voters might not elect
people who want to raise these -> this is a political check
- Other limitation: a tax cannot be used for just the purposes of a penalty to
punish
- GENERAL RULES
Tax producing significant revenue is likely going to be sustained
Regulatory provisions relating to tax are valid if there is a
rational relationship to the taxs enforcement
A tax that regulates directly through its rate structure is valid
Spending Power: Congress may provide for the common defense and general
welfare of the US. Spending may be regulated by placing conditions on spending
power
Power to spend is an independent federal power (US v. Butler). (pg 12)
Spending power is a broad power
o Steward Machine Co v Davis & Helvering v. Davis: Congress may spend
in any way it wants so long as it doesnt violate another Constitutional
provision.
o Sabri v. US: reaffirms broad spending power in a recent decision.

22

Congress may use conditional spending power to achieve a result indirectly by

depriving states of money if they do not meet regulatory scheme goals.
(South Dakota v Dole) (pg. 12)
o Main question Rehnquist asks in Dole: Is the USC 158 requiring
Congress to withhold 5% of federal highway funds from States that let
people under 21 to purchase alcohol too coercive?
In this case, no b/c this law is just relatively mild
encouragement to the States to enact higher minimum drinking
ages than they would otherwise choose
o MODERN TEST:
Exercise of spending power must be in pursuit of general
welfare
If there is a condition placed on state receipt of funds, it must
be clear and unambiguous
Conditions on federal grants must have a relation to some
federal interest
Some other part of the Constitution that restricts federal power
may be applied

State Immunity from Federal Regulation

V.

TRYING TO REVIVE TENTH AMENDMENTS LIMITS BETWEEN 1937

AND 1990s
a. In Darby (1941) Court declared that the Tenth Amendment is
simply a truism to remind Congress that it must have express or
implied authority to act under the Constitution.
i. 1941-1976 Court refused to use Tenth Amend to limit federal
commerce power.
b. Under this analysis: We might concede that something is not beyond
the power of the commerce clause for Congress to regulate, but a
second inquiry: we might say that its still beyond the scope of the
Congress b/c it has an impact on state authority and prerogatives
(rights analysis instead of powers analysis)
Something may fall under Commerce power, but still be
prohibited b/c effectively regulates the states in violation of the
10th Amendment of the Constitution.
c. In Natl League of Cities (1976) Rhenquist attempts to revive
Tenth Amendment as a limit on Congress Commerce Power and
define a zone of activity where State government was immune
from federal regulation as a separate sovereign of general powers.
i. Hodels 4 part Test Applied in Userys When does a
federal law violate the Tenth Amendment?
1. If the federal law/statute attempts to regulate the
States as states;
2. Federal law interferes with traditional/indisputable
State functions
3. State compliance with the federal statute directly
impairs integral operations of state govts.
4. The relation of state and federal interests must not be
such that the nature of the federal interest justifies state
submission

23

National League of Cities v. Usery (1976): Congress passed

regulation requiring State and Local governments to comply with
Fair Labor Standards Act. Although applicable to private
companies, States challenged Congress attempt to regulate
State governments directly. Holding Applying Act to State govt
is a violation of the Tenth Amendment which bars Congress
from intruding on the States integral/essential or traditional
government functions. Nothing left of Federalism w/o some
zone of immunity for State governments from federal
regulation. Act makes police/fire protection more expensive
interferes with States freedom to make decisions fundamentally
within the States prerogative. RULE: Congress may not exercise
power in a fashion that impairs the states integrity or their ability
to function effectively in a federal system (However case is
later overruled)
VI.

In Garcia (1985) Court overruled Natl League of Cities

i. Court rejects traditional state function test for State
government immunity from Federal Regulation is too vague
and an unworkable. Court states that Tenth Amendment is NOT
a limit on commerce power
Garcia v. San Antonio Metro Transit (1985): Federal law
enacted under Commerce Power regulates City Bus System.
Holding Court overrules Natl League of Cities and states that
Tenth Amendment does NOT bar Congress from regulating
state governments. It is within Congress commerce power to
regulate City Buses. State sovereignty is sufficiently protected
by the political process, not the legal system
RULE: State sovereign interests are more properly protected by
procedural safeguards inherent in the structure of the federal
system (legislature) than by judicially created limitations on
federal power.

TAKE AWAY: National League of Cities ruling is dead! - cant use the 10th
Amendment as a challenge to the encroachment of federal regulations into
the area of state sovereignty
IV.

THE TENTH AMENDMENT AS CONSTRAINT ON CONGRESS TODAY:

a.
1990s Today Tenth Amendment limits Congress authority
in Four basic ways:
1. Tenth Amendment may be used as a limiting rule of
construction
i. Court will apply a federal law that imposes a substantial burden
on a State government ONLY if Congress clearly indicated
it wanted the law to apply
2. Tenth Amendment bars Congress from commandeering or
compelling state legislatures to adopt federal laws or federal
regulations

24

ii. Congress may NOT conscript state legislatures to enact laws

carrying out federal policies Violates Tenth Amendment by
interfering with state sovereignty
1. However Congress may set standards, attach
funding, and give incentives for State governments to
comply with federal laws
New York v. United States (1992): Radioactive Waste Act
created duty for States to safely dispose of waste. Act provided
monetary incentives for states to comply. However, it also
included a take title provision for any undisposed waste
making States liable. Holding Although Congress may
regulate dispose of waste under commerce power, Take Title
provision is unconstitutional b/c it impermissibly
commandeered State governments and forced
compliance with federal regulation. Tenth Amend limits scope
of Congress power to compel state governments to enact
federal laws. Even a compelling federal interest is NOT enough
justify commandeering of states to enact federal policy.
3. Tenth Amendment also bars Congress from commandeering
state executive officials to carry out federal mandates
Printz v. United States (1997): Brady Act temporarily
required state executive officials to conduct background checks
for handgun purchases. Holding The Act violates Tenth
Amendment by conscripting state executive officials to carry
out federal policy. (required local officials to carry out federal
regulation) Also violates separation of powers b/c President is
vested with all executive powers, yet Congress side stepped
president by compelling State executives to carry out law
instead.
4. The commandeering principle is narrow does NOT apply to
prohibition on conduct
iii. 10th violated only if Congress imposes affirmative duty on
States to carry out policy.
Reno v. Condon: Drivers Privacy Act prohibited states from
disclosing personal info gathered by DMV. Act applied to both
state governments and private companies. Holding Court
upholds the law. Act did NOT violate Tenth Amd b/c it
prohibited harmful conduct (disclosure of info) rather than
imposing an affirmative mandate on states. Further law
equally applies to private entities
NY and PRINTZ CONCLUSION: Court declares an ANTI-COMMANDEERING
Principle
HARD AND FAST RULE: federal govt. cant tell states HOW to address issues
Federal govt. CAN regulate state govts. directly (does not alter the demise of NLC) -CONGRESS still has ability under Commerce Clause and other grants of affirmative
power to prevent states from doing things

25

Rule/Court Does say: Congress cant say to legislatures and executive branches of
state govt, we passed a law and you must enforce it by legislating, creating an
executive agency, requiring local law enforcement to carry out our mandate (cant
say you work for me, go do this)
Congress DOES RETAIN the power to regulate states in intrusive and local ways w/out
violating Commerce Clause

So what options does this leave the govt. with if they want to carry out their
agenda? (How can they make it Constitutional?)
1. Monetary incentives (such as in NY)
2. Federal govt. could pay for funding (via grants) for states that agree to
implement program
Could condition $$$ they are already giving the states as being
allocated to fund programs (not money already allocated, but
for future fundings)
Grant of annual funds based on certain stipulations
Bottom line provision of funding gets you around some
problems but when funding giving is an issue
3. Need something conditional that relates to the issue at hand way for
the states to opt out

SEPARATION OF POWERS: THE FEDERAL EXECUTIVE

POWER
INHERENT PRESIDENTIAL POWER/AUTHORITY
Separation of Powers generally --- as b/w the 3 branches of federal govt (not
federalism) and examinations of sparse legal provisions that regulate powers of
president of US (Article 2)
Article 2 enforcer of law, defender, commander in chief, chief executive
No clear and crisp lines to distinguish b/w president and other
branches of govt. this is a fuzzy area of the law, not explicit rules
This section will examine the validity/willingness/appropriateness of judicial second
guessing and questioning of the authority of the Presidential Authority
I.

Scope of Inherent Presidential Power:

a. When may the President act without express constitutional or
statutory authorization?
i. Article II The executive power shall be vested in a
President of the United States of America. Article II then
enumerates specific powers of the president.
1. Hamilton Argued that the language of Article II
reveals framers intention to create inherent
presidential powers.
2. Madison Argued president has NO inherent powers
that are not expressly enumerated in Article II.
b. Key Question Separation of Powers
i. What is the proper balance to checking Presidents power and
allowing discretion?

26

ii. Formalist Approach Court likely looks solely at text and

framers intent when
1. there is a clear tension with the text;
2. Congress is attempting to aggrandize its power over
the president.
iii. Functionalist Approach Court is more likely guided by
underlying values of separation of powers and permit
expansion of presidential power in:
1. Foreign policy or emergency situations (national
security)
II.

Youngstown Sheet & Tube v. Sawyer (1952)

a. Inherent Power of President? Ability of president to act without
express constitutional or statutory authority. Can the president
possess inherent lawmaking powers?
Youngstown: Steel workers planned nationwide strike.
Truman orders secretary to take possession (seizure) of the
steel mills and keep them running. Truman fears strike could
endanger national defense and Korean War. Truman
immediately reported to Congress and asks for input. Congress
took no action. Owners of mil sue to enjoin Presidents seizure.
Holding Court declares the seizure of the steel mills
unconstitutional.
- There is NO express constitutional provision permitting
the president to seize property. Only Congress may seize
property, not president.
- There is NO statute or act where Congress authorized
president to seize property.
- This was NOT an emergency action in a theater of war.
Therefore, Trumans act was outside the scope any inherent
executive authority
b. Different Approaches to Inherent Presidential Power in
Youngstown:
Formalist (Categorical) Approach Justice Black (Majority
Opinion)
1. Look to the literal text of the Constitution
a. Formal, literal, categorical, rule bound approach
b. If No express constitutional text No power to
act
2. There is NO inherent presidential power
a. President may act only pursuant to express or
clearly implied constitutional or statutory
authorization
Functionalist Approach Justice Jackson (Concurring
Opinion)
1. Flexible view of constitution and executive power,
open-ended balancing
a. Modern problems are complex need a sliding
scale of powers based on the circumstances of
the situation

27

2. If Executive branch is not usurping the

functions of Congress, there can be a
balancing of interests to determine if Presidents
act was constitutional.
a. President may exercise powers not
mentioned in the text of the Constitution so
long as he does not violate a statute or
Constitution.
3. Jacksons Three Zones of Presidential
Authority:
a. Zone #1 When President acts with
express or implied authorization from
Congress, executive authority is at its
max
i. In this zone Presidents acts are
presumptively valid
b. Zone #2 When President acts with
Congress having neither given
permission nor denied authorization
(Zone of Twilight)
i. President can only rely on his own
powers, but there may be a middle
area where power is uncertain, implied
or concurrent.
ii. In this zone No presumption that
Presidents act is valid
1. Balancing of Interests:
a. Emergency Situation?
b. Has Congress
acquiesced?
c. Zone #3 When President acts contrary
to the express or implied will of
Congress, Presidents power is at its
lowest ebb.
i. In this zone Presumption against
validity of Presidents act
ii. Trumans seizure of mills falls in Zone
3 Thus, Trumans action was
unconstitutional and outside his
inherent powers.

Delegation Questions: (You ask these every time delegation

question comes up)
28

1. Is there intelligible principle?

a. Almost always yes
2. Who is executing disputed power?
3. What is nature/kind of disputed power?
May (2) exercise (3)?
CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE
I.

ADMINISTRATIVE AGENCIES
a. Huge growth of Administrative Agencies (1932-today)
i. No express Constitutional provision for administrative agencies.
However, complex modern problems gave rise to many
regulations.
ii. Complex regulations are better handled by specialized agency
(rather than Congress)
iii. Political dimension Expansive delegation of legislative power
to Agencies allows Congress to act, but avoid the political
heat of specific regulations.
b. Administrative Agencies exercise all government powers:
legislative, executive, judicial
i. Combination of all power into a single, unelected agency
conflicts with:
1. separation of powers and
2. checks and balances.
ii. However Congress routinely delegates its power to executive
agencies

II.

THE NON-DELEGATION DOCTRINE (and its Demise)

a. Non-Delegation Doctrine Theoretically prevents Congress from
delegating its lawmaking power to an executive agency without
guidelines or intelligible standards.
i. However court gives wide deference to Congress and
upholds even very vague guidelines. Court has not
invalidated delegation of power in 70 years.
b. 1935 Doctrine was a false start attempt to limit executive power
during the New Deal.
c. After 1935 Court has abandoned use of the non-delegation
doctrine to limit Agencies

III.

THE LEGISLATIVE VETO (and its Demise) Congressional Interference

with Presidential Prerogative
a. In 1930s Congress was looking for a way to check the power of
growing administrative agencies. Congress could enact a law
overturning an agencys rule, but this would require getting a bill
passed by both houses and obtaining presidential signature.
b. The Legislative Veto Created by Congress as a check on
administrative agencies. Congress included in statutes provisions

29

authorizing one-House or a committee to overturn an agencys

decision by doing something less than fully enacting a new law.
c. In Chadha (1983) Court declared the Legislative Veto
Unconstitutional
i. Modern Rule Legislative vetoes are unconstitutional. If
Congress wants to overturn an executive agencys action, there
must be:
1. Bicameralism (passage by both houses of Congress);
and
2. Presentment (giving the bill to President to sign or
veto)
Anything less is an unconstitutional legislative veto
INS v. Chadha (1983): Chadha was an immigrant was up for
deportation. Administrative Judge declares Chadhas
deportation could be suspended. House of Reps passes
legislative veto overturning agencys decision to suspend
Chadhas deportation. Chadha (P) challenges constitutionality
of legislative veto. Holding The legislative veto is
unconstitutional. Article I says Congress may ONLY legislate
if there is: Bicameralism (both houses vote) and Presentment
(President signs). Legislative Veto is legislative in effect by
affecting legal rights but does NOT comport with specific textual
provisions in Article I. Court rejects argument that legislative
veto is necessary for efficient check on agencies. Follow
text! (Formalistic approach)
Dissent Legislative veto is needed in the modern, complex
world and is consistent with the basic functions of lawmaking.
Constitution was meant to be flexible and Congress needs some
way to check Agencies. Makes sense for Congress to retain
some power and ability to exercise legislative veto in certain
situations (Functionalist Approach)
Note: Process Altering Decision -- This case struck down more
statutes than any other case struck down immeasurable amount
of prior legislation demands nothing less than bicameralism and
presentment for any legislation (to overturn an executive action)

THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE

POWER
I.

Does Congress have the ability to enhance the powers of the President by
conferring upon him authority not contained in the Constitution?
Underlying issue Separation of Powers
a. SEPARATION OF POWERS ISSUES:
i. Two approaches to Separation of powers
1. One view Separation of Powers issues are best
resolved btw Congress and the President. If the
branches agree, Judiciary should only rarely interfere
2. Another view Separation of powers is
Constitutionally mandated. Courts should actively
enforce separation of powers.

30

ii. Formalist vs. Functionalist Approach to Separation of

Powers
1. Formalist Rigid focus on text of Constitution. Court
should interfere and invalidate a law to strictly enforce
separation of powers even when two branches are in
agreement.
2. Functionalist Emphasizing the need for change and
flexibility. Court should only invalidate laws that actually
interfere the functions of the separate branches
within separation of powers
iii. Two Important Concepts:
1. Non-delegation doctrine: the principle that the
Congress of the United States, being vested with "all
legislative powers" by Article I, Section 1 of the United
States Constitution, cannot delegate that power to other
branches of government (e.g., the Executive Branch).
However, the Supreme Court has ruled that Congress
does have latitude to delegate regulatory powers to
executive agencies as long as it provides an "intelligible
principle" which governs the agency's exercise of the
delegated regulatory authority.
2. Bicameralism and Presentment Clause (Article I,
Section 7, Clauses 2 and 3) of the United States
Constitution outlines federal legislative procedure (that
is, how bills originating in Congress become federal law)
in the United States.

b. LINE ITEM VETO ACT (Presidents Power to Determine National Policy

Delegation of the Legislative Power to the Executive)
i. Supreme Court invalidated in the cancellation provisions of
the Line-Item Veto as an unconstitutional attempt by
Congress to increase Presidential power.
1. Even though both Congress and President agreed on
Line-Item Veto, the Court interferes and invalidates it as
a violation of Separation of Powers.
2. Congress can only change the process of passing laws
through a Constitutional Amendment Take away:
Congress may not increase the Presidential powers, via
statute, beyond what is granted to him in the
Constitution. Changes to the procedures for enacting
and vetoing laws must come from a Constitutional
Amendment, not by legislative action. Majority =
formalistic Constitutional view Dissent = functional
constitutional view
Clinton v. City of New York (1998): Line Item Veto Act allowed
President to cancel provisions of enacted laws. President could

31

cancel certain expenditures and then send it back to Congress

who could overturn veto w/ majority vote.
Majority Holding cancellation provisions of Line Item Veto
are unconstitutional. President is changing a law adopted by
Congress. The constitutional procedures for enacting laws in
Article I must be strictly followed. The final bill, that is
altered by president by the line item veto, is different
than what Congress passed and outside of the regular
veto process, the president cant exercise veto option.
Thus the Line Item Veto violates separation of powers. Violation
of text of constitution and the framework set forth (tradition is to
veto entire bill) (Majority uses Highly Formalist approach)
Dissent Complexity of budget has changed in modern times.
We need a flexible standard for veto-- Different way to achieve
same result (Functionalist Approach.)
OTHER DELEGATION CASE EXAMPLES;
Myers:
Who? Congress
What? Executive (President wants to remove person who is solely involved in
executive functions)
Whether? No
Court is saying REMOVAL is critical b/c people know you can fire them, removal is a
very powerful tool
Could President remove a prosecutor? Yes, a prosecutors sole duty is to enforce the
law
Huphreys Executor:
Congress put restriction on President to remove person from Federal Trade
Commission, which is not soley executive; FTC was independent commission that
carried out judicial powers, as well.
Who? POTUS
What? Quasi-judicial
Whether? No
Bowsher:
Who? Congress
What? Legislative (But it tries to give power to remove someone without
impeachment)
Whether? No
Bottom line, formalist argument b/c it forbids Congress from removing an officer w/o
impeachment b/c no other means of removal is allowed in Constitution
OTHER CHECKS ON ADMINISTRATIVE AGENCYS POWERS:
d. Key Question With demise of non-delegation doctrine and legislative
veto, are there sufficient checks on administrative agencies?
i. Congress can overturn Agencys action by enacting statute
1. Congress must go through slow process of bicameralism
and presentment
ii. Congress can control purse strings and withdraw funding
iii. Congress can use oversight committees

32

iv. Senate approval of Presidents appointees to Agencies

IV.

NO DELEGATION OF EXECUTIVE POWER TO CONGRESS

a. Congress has broad authority to delegate legislative power to
administrative agencies
i. Court has taken functionalist approach to Congress
relinquishing its own legislative authority and assigning it to
another branch
b. However Congress may NOT delegate executive powers to itself
or its agents.
i. Court takes a formalist approach to Congress attempting to
aggrandize its own powers and assume power to execute its
own laws.
1. This is a clearer violation of separation of powers
a. Article II specifically assigns the executive power
to the President

V.

THE APPOINTMENT POWER Congressional Interference with

Presidential Prerogative
a. Article II 2 President shall nominate, and by and with the advice
and consent of the Senate, shall appoint Ambassadors, Judges of the
Supreme Court, and all other Officers of the United Statesbut the
Congress may by law vest the appointment of such inferior officers
as they think proper in the President alone, to the Courts of Law, or in
the Heads of Departments.
b. Principal vs. Inferior Officers
i. Principal Officers may only be appointed by the
President, with advice and consent of the Senate
ii. Inferior Officers Congress may vest appointment of
inferior officers in other departments like the Courts or in
Executive Departments.
1. However Congress may NOT vest Courts with
appointment power if it would be in-congruous with
the functions of judiciary
c. Appointment of Independent Counsel - Appointment,
Discharge, and Supervision of Officers of the United States
i. Independent prosecutors are considered inferior officers
because they have limited authority and are subject to removal
by executive officials.
ii. Thus Congress may vest Federal Courts with power to appoint
independent counsel without violating separation of powers.
1. Represents a functionalist approach Independent
counsel (special prosecutor) is needed to investigate
abuses by President. A flexible interpretation of Article II
permits appointment of independent prosecutor by the
separate judicial branch.

33

Morrison v. Olson (1988): Ethics in Gov Act allowed for

appointment of independent counsel to investigate abuses. If
attorney general finds investigation into wrongdoing is needed,
panel of Federal judges could appoint independent counsel.
Holding Court upholds constitutionality of federal judges
appointing independent counsel b/c they are inferior officers
with limited tenure/power and jurisdiction and not appointed
by the AG. Can be Appointment by judges was not
incongruous b/c judiciary given no authority to supervise
prosecutions. Judiciary is NOT trying to aggrandize its
own power. Also, there is a good justification for deviating
from text of constitution --To effectively investigate president,
counsel must be appointed by a separate branch. (Protection
that independent counsel could only be removed for good
cause) (Functionalist approach).
Scalia Dissent The power to prosecute is an executive
activity and it usurps the presidential power for Congress to
vest this authority in the independent counsel outside of
Presidents control. This is an unconstitutional limit on
presidents power. (Formalist approach)
Majority says that there is great overlap of branch authority
(executive, legislative, and judicial) -- but we need flexibility
here so its okay
BUT, what about Presidents authority to be the sole person
to prosecute?
o This limits authority of President to determine whether to
have prosecutor, whether to fire prosecutor (thus limits
power of AG)
o HELD: some limitations on power to remove is okay (b/c
not exercising core executive authority)
Take away president has power to remove any one in
executive branch
But Congress can limit that power only where division
from the president is desirable
There is a shift in the reasoning here b/c there is an
exercise of core executive authority here (enforcement
of law) -- the court has to alter its previous approaches
slightly -- b/c has taken core executive power of
president and limited it in some way
So the Court doesnt restrict its examination to just
blanket authority but goes further by asking question
of whether there is a usurpation of power of the core
aspects of sovereignty of the President?
This may be the far reach of functional approach to
separation of powers
It is an extreme version of this is not expressly
constitutional but it serves a purpose
This is the outlier of cases in terms of applying Justice
Jacksons approach FUNCTIONAL approach
Extreme version of notion of saying this isnt precisely
constitutional, but makes sense so we should do it

34

theres a strong purpose to be served by Independent

Counsel, so its okay
d. Limitation on Congress Appointment Power
i. Congress may NOT give the appointment power to itself or its
officers.
1. Article II states that Congress may vest the appointment
power for inferior officers in the president, heads of
departments, or federal courts. Congress is NOT on this
list. (Buckley v. Valeo)
2. Thus Congress can NOT aggrandize its own
powers without violating separation of powers.
VI.

THE REMOVAL POWER

a. Constitution is silent on Presidents authority to remove executive
branch officials. Court has used a functionalist approach to
presidents power to remove executive officials.
b. Basic Principle:
i. The president has the power to remove executive officials;
But Congress may limit the removal power if it is an office
where independence from the President would be desirable.
However, Congress cannot completely prohibit presidents
removal power entirely and Congress cannot give the removal
power to itself (other than by exercising its impeachment
power).
ii. Approaching removal issues involves a two pronged
analysis:
1. First Is the office one where independence from the
president is desirable?
a. If so, Congress may limit the removal power.
2. Second Are Congress limits on Presidents removal
power constitutional?
a. Congress cannot completely prohibit presidential
removal, but it can limit removal to where there
is good cause.
b. Congress cannot give itself the sole power to
remove an executive official. (except by
exercising impeachment)
c. The basic principle emerged from the following cases:
i. The President has exclusive power to remove purely
executive officials or cabinet members without any
interference from Congress (Myers)
ii. However Congress may limit by statute the presidents
removal power over commissioners of non-partisan
independent regulatory agencies like FTC which are not
under direct executive control. (Humphreys)

35

iii. Further Even without a statutory limit on removal, President is

restricted from removing an administrative officer from a
commission where independence from the president is
desirable (Weirner).
iv. Congress may NOT give itself the power to remove executive
officials except through the impeachment process. Congress
may NOT aggrandize its own powers by giving executive powers
to itself or to its agents. (Bowsher).
v. Congress may limit Presidents power to remove an
independent counsel appointed to investigate and prosecute
alleged wrongdoing in the executive branch. Counsel may only
be removed for good cause. (Morrison)
vi. Distinctions btw quasi-legsilative or quasi-judicial functions
not dispositive. The real question is whether removal
restrictions are of such a nature that they impede the
presidents ability to perform his constitutional duty.
(Morrison).
OPPOSING VIEWPOINT (SCALIA)
UNITARY POWER OF THE EXECUTIVE:
- President should have all executive power
o This Act interferes w/ Presidents full power (good cause restriction)
He says if President does not have complete control over his branch, he will not be
equal in power with other branches (Congress can impeach him, delegate powers) so
this diminishes Presidential power
2 arguments for UNITARY POWER
1. There are checks on everyone in executive office, everyone has boss until
you reach President, who himself is politically accountable.
2. However, Special Officer has no boss, no checks on him. President needs
power to be boss
PRESIDENTIAL ACCOUNTABILITY
US vs. Nixon- Nixon refuses to give up tapes b/c he says he has executive privilege to
keep them secret
- Nixons lawyer says he is willing to go to court over this
o All presidents up to Nixon believed they had absolute executive
privilege
Gerhardt says this is not a silly position at all
- Subpoena is delivered to Nixon
o Should he challenge this?
o Problem with litigation: You could lose
If Nixon loses, changes executive privilege for every other
president to come
- What were Nixons bases for absolute executive privilege?
o Professor Black hated Nixon but still thought Court got this decision
wrong, so there must be compelling argument for this side

Structure argument- He needs this power to stay on even

playing field with other branches
If he cannot be able to keep what he wants secret, he
becomes less powerful than other branches and will be
subject to their scrutiny
- Counterargument is

36

If you give President absolute executive privilege, he will never be able

to be held accountable for anything he does
- Holding When President uses executive privilege, Court may review this
information in private to balance whether this information should be held
against President or whether it should be kept secret
QUALIFIED executive privilege is new standard- Need for disclosure balanced against
need for law and order
o

I.

SCOPE OF INHERENT POWER ISSUE OF EXECUTIVE

PRIVILEGE
a. Presidential Immunities and Executive Privilege the
ability of the President to keep secret conversations with or
memoranda from advisors.
i. The Constitution does NOT mention such authority, but
Presidents have claimed it throughout history arguing it is
necessary because:
1. Presidents need candid advice
2. National Security demands secrecy
3. Diplomacy requires secrecy
United States v. Nixon: Special Prosecutor investigating
Watergate wants Nixon to turn over tapes. Nixon refuses claiming
executive privilege.
Nixon argues this is a non-justiciable political question involving
an intra-branch dispute because special prosecutor is part of
executive branch.
Nixon argues that he has absolute executive privilege and the
Judiciary cannot compel a co-equal branch of government to do
anything. Impeachment is the only way to compel the President
to do anything.
Holding Court finds this is a justiciable issue because of the
context of a criminal prosecution. The parties are adverse
b/c prosecutor is investigating the President.
Executive Privilege is NOT absolute, but merely an
implied power without express textual support. The Court has
the power to say what the law is and the legitimate needs of the
judicial process will outweigh Executive Privilege. Therefore, Nixon
must turn over the tapes.

II.

SCOPE OF EXECUTIVE PRIVILEGE AFTER NIXON:

a. Judiciary has sole power to determine scope of Executive
Privilege.
i. It is the province and duty of the judicial department to
say what the law is
1. President does NOT have power to define the scope
of Executive Privilege.

37

b. Court recognizes Executive Privilege as an Inherent

Presidential Power
i. Article II does not expressly grant executive privilege, the
court implies from structure of Constitution and
Presidents duties
1. Executive Privilege needed for candid advice w/o
fear of disclosure to public
c. Court holds Executive Privilege is NOT absolute
i. Executive Privilege can be invoked to protect military,
diplomatic, or national security secrets.
(presumption in favor of privilege)
ii. However Executive Privilege must yield to
countervailing interests/judicial review
1. In the context of a criminal proceeding
Presumption against privilege
2. An absolute executive privilege would place the
President above the law and interfere with
Judiciarys ability to perform its functions under rule
of law
a. (In criminal trial courts must be able to
compel evidence, etc)
3. Must be a balance b/w need for information v.
need for secrecy
Nixon v. Adm. General Services
- Question: If President is asked day after leaving office about something that
was under executive privilege, can they keep it secret?
o No, information belongs to current office
Nixon said No, tapes are mine now Court said no
- Once you leave office, you do not hold these powers anymore
o Same for judges; cant influence opinion once they arent a judge
anymore
Works as a check against Office- must worry about what you are leaving behind
- What is going to happen- current President will want same treatment later
once he leaves office, so presidents are very selective of what they will bring
out about past president
- Happens even across party lines- Bush protected things from Clinton
Executive Immunity
- Extent to which President will be subject to legal processes
o A few different holdings
US v. Burr- President subject to subpoenas as far as information
goes
o Nixon v. Fitzgerald
President is entitled to ABSOLUTE immunity from damages
liability predicated on his official acts b/c without it, people
could use court system fairly easily to distract President
President must be able to fully focus on his duties as president
What are checks to keep him in line then?
o Media coverage
o Congress (such as threat of impeachment)
o Desire for reelection

38

o
o

Concern for historical stature

Prestige/popularity
Problem with these- in Nixon and Clinton
cases, problems arose in second terms
(reelection does not matter)

Clinton v. Jones
Arkansas state employee files federal suit against Clinton
seeking damages for sexual advances
Clinton argues suit should be dismissed b/c of Presidential
immunity
Court rejects this, but discovery is pushed off until after his
reelection (not b/c of ruling, b/c of legal action taking so long)
Court says immunity is ONLY available to things done while in
office- conduct in question occurred when he was not yet
President

IMPEACHMENT
History- Federal judges have been only people removed by this
Johnson and Clinton only two impeached by House (both acquitted by Senate)
Threat of Impeachment- Does it work??
- If you are federal judge, no incentive to resign b/c you keep receiving salary
no matter what, even if you are sitting in prison
It is almost impossible to convict a President of impeachment- Johnson was basically
hated and survived it
***Impeachment is not legal process, it is a POLITICAL process
Consists of treason, bribery, and other high crimes and misdemeanors
House votes first to impeach, then
At least 2/3 of Senate has to vote to enforce
How much should we rely on impeachment as a check on anything?
Impeachment:
Crimes only?
All crimes?
Crimes that violate public trust- not very specific
Differing standards? Likely depends on what somebodys job is, but yes
- A lie probably is not enough; depend on nature of lie
o Could be protecting national security
House role? No consensus here. 3 cases where they did no fact finding: In Andrew
Johnson case, they did no fact-finding. Johnson admitted he fired someone who he
couldnt fire without vote of Senate. 2. Claibourne asked to be impeached so he
would have hearing in front of Senate 3. Clinton case
Senate role?
Burden of Proof? House- not rigorous standard; Senate- each decide which burden
(beyond reasonable doubt, etc.)
Sanctions? Removal from office; other is disqualification (only 3 people in history
has been dqd, which makes you unable to ever run for another office)

DORMANT COMMERCE CLAUSE

-

State treating business practices differently

ALL these cases begin with critical presumption that Federal Govt has not
acted

39

Federal Govt can preempt any state law in which both address same
subject (unless Federal law is unconstitutional)
Express preemption (states that any state law on _____ is
overridden)
Implied preemption
Fed and state law flatly inconsistent
Federal law occupies field state law tries to occupy
o All contextual

1. Does it discriminate?
a. MPE applies
b. If a state law DISCRIMINATES against out-of-state interests, it is barred
i. How would you know if it is discriminating?
1. If the law facially discriminates (treats out of state
interests less well than in state interests)
a. Strike down these laws almost every time
c. Philadelphia v NJ
i. Law preventing people from bringing solid waste from out-ofstate into NJ
1. Expressly discriminating- applies only to out-of-state
actors
2. Commerce clause precludes this law- imagine what it
would do to national economy
a. Only way to make it not discriminate is say
NOONE can dump garbage
i. Seems highly impractical
1. Politically, would hurt NJ politicians
as well (NJ citizens would have to
dump out of state)
3. Balancing test does not really come into play when it is
express discrimination
4. Only other option would be Federal Govt- they have
tremendous authority, so they could regulate the way
the waste gets disposed- Could probably do this
5. If states created compacts with one another, they could
do this (Collective waste barges, community waste
disposal for agreeing states)
2. Balance- If not express discrimination
a. If discriminatory effect that is not purposeful, you still probably strike
down UNLESS really good reason by the state
b. HUNT v WASHINGTON APPLE case
i. NC state law says everyone must package apples the same to
be sold in the state
1. Why is NC doing this? This answer is why it gets struck
down
a. Appears even handed, even people in NC have to
do it
b. This law removes advantage out-of-state apple
growers had b/c they had higher standards and
were a better product
c. People would then not know where apples came
from b/c law removed label
c. How can Universities get away with in-state discrimination
i. Market Participant Exception

40

1. When a state is a PARTICIPANT in economics, it can

discriminate
2. University accepts more funds from in-state people,
therefore they can give in-state people advantage
3. UNC is a participant in market of higher education
a. UNC does not get to tell other universities or
private schools how to run themselves
i. UNC says we have to compete with other
places of higher education

Regulation of Transportation

In balancing test consider the following:

o
the absence of discrimination (ie: if regulation burdens intra and
interstate commerce equally, regulation will likely be upheld.)
o Differing regulations among states may produce a cumulative burden
and the court will strike down. (see: Southern Pacific Co v. Arizona)
o Regulations with a discriminatory intent or effect will likely be struck
down. (see: Kassel v. Consolidated Freightways) (pg 29)

Regulation of Trade

Court strikes down barrier to incoming trade whose clear purpose is to favor
local economic interests (see: Hunt v. Washington Apple)
Court strikes down embargo of outgoing trade resources if less discriminatory
alternatives are available (see: Hughes v. OK)
Court is suspicious of regulations that pressure out of state business to
perform certain operations within the state like locally process garbage (see:
Carbone v. Clarkstown)

Regulation of Environment

Even if regulation is enacted to further a non-economic motive, court may

strike it down unless there are NO less discriminatory alternatives (see:
Philadelphia v. New Jersey) (pg 28)
Environmental acts that merely burden interstate commerce are sustainable
under DCC. (see: Minnesota v. Clover Leaf Creamery)

Article IV- Privileges and Immunities Clause- many cases align w/

dormant CC cases(b/c state is interfering w/ actions with another state)
- Some interests where state cannot discriminate
o What are these interests?
Vague test
Economic interests that gives people in one state
advantage over another in discriminatory manner that
prevents people from participating in national economy
P. 332
o Examples of interests so important that it would ruin national economy
1. Who is eligible to take state bar
- Modern Test p. 334- When a law treats in state people and out different, state
can defend in two manners
o 1. There is a substantial reason for the difference in treatment
o 2. The discrimination practiced against nonresidents bears a
substantial relationship to the States objective
Question: What does it MEAN to discriminate? How do you recognize it? B/c every law
discriminates

41

Every law distinguishes a group of people to which it applies and people who
it does not apply to

Intro to 14th Amendment and Economic Due Process

Clause: no state shall make or enforce any law which shall deprive any person of
life, liberty or property without due process of law.
Early Expressions of the Notion that Governmental Authority has implied limits:
*CALDER v BULL
- J. Chase made a point to strike down legislation without regard to explicit
constitutional limitations
o Purposes for which men enter society will determine the nature and
terms of social compact
Since they are foundation of legislative power, they will decide
what are the proper objects of it
- Iredell disagreed:
o If any member of the Union, shall pass a law, within the general scope
of their constitutional power, the Court cannot pronounce it void
merely b/c it is in their judgment contrary to the principles of natural
justice
*DRED SCOTT
- Majority ruled even though Dred obtained freedom under law of Illinois and
Wisconsin, the Constitution did not count slaves as citizens so he did not get
the right to do this- Scott could NEVER be a citizen, for that matter
o Framers intent- Judge says they were more than capable of including
slaves but did not do so
- Also says due process prevents slave owner from being deprived of his
property (5th Amendment protection)
- Dissent says international common law is used in Missouri, and that United
States law in place directly changed status of a slave in Wisconsin, so change
of status should be recognized elsewhere
o Also makes point that slaves in northern states who were freed would
no longer be citizens, according to the majority ruling
Now How do you deal with Southern states as far as reconstruction laws, etc.?
- Lincoln says the states never actually left Union, but rebelled against other
states in Union
- But how can these laws be valid if Southern states were not represented at
the time?
Ratification of 13, 14, 15 Amendments
- All 3 work to reverse Dred Scott decision
- Put federal govt in charge of civil rights, but states subject to these rights
- These amendments were predicated on idea that they could not trust states in
this area
End of slavery led to right to contract theory- sell your services in exchange for
compensation

ECONOMIC SUBSTANTIVE DUE PROCESS

I.

EARLY HISTORY OF ECONOMIC SUBSTANTIVE DUE PROCESS (1790s1880s)

a. Early Antecedents Using Natural Law to Protect Property

42

i. Early Court believes Constitution protected natural rights

concerning personal property that limited government actions.
b. Initial Rejection of Economic Substantive Due Process
i. Slaughterhouse Cases (1872) Court expressly rejected a
substantive due process claim. Court emphasized that Due
Process only concerned procedures and could not be used
to challenge laws as violating economic rights.
1. Fields Dissent argues Due Process includes
protection of natural rights to property and to
practice profession that could not be arbitrarily
assailed
c. Rise of Regulations and Suggestions of Economic Substantive
Due Process
i. 1870s Industrialization changed economy and legislatures
begin to enact regulations for railroads and grain storage.
ii. Laissez Fair Economic Philosophy influences Judges to
interpret a freedom to contract into Due Process Clause as
a basic liberty interest (Alleger).
II.

LOCHNER ERA ECONOMIC SUBSTANTIVE DUE PROCESS (18971937)

a. Lochner Era Under Laissez-Faire philosophy, Court interprets an
implicit freedom of contract into the Due Process Clause of the 14 th
Amendment. Court actively invalidates state government economic
regulations as violations of economic substantive due process.
Lochner v. New York (1905): Court invalidated a NY
regulation that set the maximum hours that bakers could work.
Court held that the regulation of labor hours did NOT come
within the States police power to regulate health and safety.
Thus, the law violates freedom of contract btw bakers and
employers. Court tries to constitutionalize laissez faire
economics and will second guess legislatures determination of
what constitutes valid exercise of police power. Holmes
Dissent objects that Constitution does not imply any
economic theory or policy.
b. Three Main Principles of Lochner Era
i. Freedom of Contract is an implied right protected by the
Due Process Clause of the 14th Amendment. (the right is seen
as a property right that cant be taken away)
ii. Legislatures could interfere with freedom of contract only to
serve a valid police purpose of protecting public safety,
public health, or public morals, but other things are beyond
the scope of the govt. power to regulate
iii. The judiciary will scrutinize regulations and second-guess
legislatures determination of what constitutes valid police
purpose. (ends and means)

43

c. Examples Lochner Era Cases

i. Invalidating laws protecting labor unions:
1. Coppage v. Kansas (1915) Court uses economic
substantive due process to invalidate a law prohibiting
Employers from requiring non-union workers
ii. Upholding Maximum Hours Laws for Women Workers
1. Muller v. Oregon (1908) Court upholds maximum
work hours for women b/c female reproduction is a
legitimate exception to freedom of contract. As a
lawyer, Brandeis files a detailed brief with scientific
data (this is an EXCEPTION involved a special
interest to protect rights and health since women
couldnt vote)
iii. Invalidating Minimum Wage Laws for Women Workers
1. Adkins v. Childrens Hospital (1923) Court
invalidates (rules unconstitutional) minimum wage law
for women b/c 19th amendment gave women equality
through voting rights. This infringes on liberty of K.
III.

CRITCISM OF LOCHNERISM AND PRESSURE FOR CHANGE (1930s)

a. Criticism of Lochnerism
i. Depression Era created widespread perception that
government economic regulations were essential and freedom
of contract should not be an obstacle.
ii. Legal Realists argued that Lochnerism was really just about
political policy choices rather than restoring natural order.
Pointed out inconsistent decisions
iii. Problematic Judicial Activism Criticism that unelected
judges were unduly substituting their values for those of
democratically elected legislatures to protect rights that were
NOT expressly stated in any text of the Constitution.
Vices of Lochner: (6)
IV.
Liberty of Contract is not protected by the due process clause
V.
Liberty of contract might be protected by DP, but not substantively
VI.
Court too skeptical of means and ends
a. Institutional criticism, Court should have been more deferential
VII.
Problem with the ends
a. Idea that Court is too skeptical of the end the government was going
for- just because do not agree with end does not mean it is illegal
VIII.
Lochner and political process
a. Look at lawmaking process that made law- was there anything
defective about it? If not, do not need judicial review
IX.
Locher gets the status quo wrong
a. Perhaps the most devastating attack on Lochner
i. Right to contract had certain look that had no standing
ii. Dont confuse status quo as what Constitution requires
b. Demise of Lochnerism

44

Nebbia v. New York (1934): Court upholds a government

regulation that set prices for milk. Court states that any state
regulation that is reasonably related to a legitimate
government purpose satisfies due process. Court stresses need
for judicial deference to decisions of legislatures as to what
qualifies as valid police purpose and in the name of public
good.
X.

THE END OF LOCHNERISM (1937)

a. In 1937 Justice Owen Roberts switched sides (after court-packing
plan) and upholds regulations in two cases signaling the end of
Lochner Era.
b. Rational-Basis Test for Economic Regulations - Heavy
Presumption of Constitutionality
i. Economic regulations will be upheld if rationally related to
serve any legitimate government purpose and court will defer
to legislatures judgment.
West Coast Hotel v. Parrish (1937): Upholding minimum
wage law and abandoning of Lochnerism. Court announces it
will no longer protect freedom of contract as a fundamental
right and government could regulate to serve any legitimate
public purpose; court will defer to legislatures reasonable
choices. (Overrules Adkins)
c. Reaffirming Judicial Deference to Legislature
i. Economic regulations upheld so long as supported by any
conceivable rational basis, even if it cannot be proved that it
was the legislatures actual intent.
United States v. Carolene Products (1938): Court upholds
another economic regulation on milk products. Court
announces it will no longer second guess the legislature as
to whether a regulation has a rational basis linking a public
purpose.
d. Carolene Products Footnote #4 and New Theory of Judicial
Review
i. Generally, the court will give broad deference to the
legislature and uphold laws so long as they are rationally
related to legitimate public purpose.
1. Court defers to democratic process where voters are
the check on laws.
2. Moving from a time of rigid intervention to a
presumption of constitutionality
ii. Three Exceptions Court will NOT give presumption of
constitutionality if:
1. The law conflicts with explicit text of Bill of Rights
2. The law restricts citizens access to political
process (voting rights)

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3. The law prejudices discrete and insular minorities

a. In these areas, the political process is NOT
sufficient to protect the rights involved.
Minorities and those denied voting rights cannot
have any recourse by voting out members of
legislature.
b. Thus Court must intervene with a more
searching/heightened scrutiny.
XI.

MODERN ECONOMIC SUBSTANTIVE DUE PROCESS SINCE 1937

a. Modern Rule Rational Basis Test for Economic and Social
Regulations
i. Economic regulations will be upheld when challenged under
Due Process as long as they are rationally related to any
legitimate government purpose. (heavy presumption of
Constitutionality)
1. Legitimate purpose can be any goal not prohibited by
the Constitution
a. Any conceivable basis/public purpose (need
not even be stated)
b. No relationship to health, safety, welfare
required
2. The law only need be a reasonable way/means of
attaining the end
a. Need not be narrowly tailored to achieving the
goal.
3. Thus virtually any law can meet this deferential
standard
a. Almost NO judicial 2nd guessing of
legislation (great deference)
b. Example Extreme Deference to Legislature for Economic
Regulations and Freedom of K
Williamson v. Lee Optical (1955): Oklahoma law required
that all lenses prescriptions be filled by licensed optometrist.
Holding Even though law is unnecessary and unreasonable,
court refuses to second-guess legislatures discretion in
linking a public purpose with the law. It is up to the
legislature, not the courts to decide upon the wisdom and
utility of economic regulations. Court sends signal that people
must use the political process to strike down laws that regulate
business and industrial conditions.
c. Example Extreme Deference to Legislature for Restricting
Rights of Trades and Professions
Ferguson v. Skrupa (1963): A Kansas statute made it a
misdemeanor for any person to engage "in the business of debt
adjusting" except as an incident to the lawful practice of law,

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"debt adjusting" being defined as the making of a contract

whereby an adjuster, for consideration, agrees to distribute
payments by a debtor among his creditors in accordance with
an agreed upon plan. Effect of law was to put those who were
not lawyers out of business of debt collecting. Holding Not
unconstitutional there is a conceivable basis could be
dangerous - Case shows that no longer did the Court interpret
the DP clause to protect a right to practice a trade or profession
or even freedom of K [willing for there to be limits on rights]
States have power to legislate as long as their laws
dont conflict with the Constitution or federal laws

Since Locher/1937 - economic substantive due process has been unavailable

to challenge govt. economic and social welfare laws and regulations

No economic regulatory statute has been held invalid under DP

since 1937 (limits are permissible)

GRISWOLDWarren Court- only case where they use substantive DP

Implied fundamental right of married couples to be able to use contraception
The law made a fine or low prison sentence for married couples to use contraception,
with another law with it saying whoever helped couples get contraception was also in
violation
Douglas opinionRight- Right of marital privacy
Source- precedents, amendments, prenumbras
State Interest- Keep people from sleeping around- Douglas says even if you say this is
a legitimate state reason for law, it is not immense enough to justify taking away
right
Is this like Lochner? NO! Douglas does not want to reintroduce substantive DP- this
law operates on intimate relationship between husband and wife, unlike Lochner that
the Court say as super-legislature to determine the wisdom need, and propriety of
laws that touch economic problems, business affairs, or social conditions
Level of scrutiny? High
Goldberg opinionRight- Right of marital privacy
Source- 9th Amendment, precedent, which both point that there is additional
fundamental rights, protected from govt infringement- to ignore a right as
fundamental as right of marital privacy is to give 9th Amendment no effect
whatsoever
State Interest- Keep people from sleeping around
Lochner? NO
Level of scrutiny? Strict

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Harlan opinion:
Right- Right of marital privacy
Source- Relies on DP clause of 14th by itself- substantive DP!
How he goes about saying what is substantive DP and what is not- it is a
continuum- balance of what history teaches as traditions which it developed
and traditions which it broke. Tradition is a living thing.
- Tradition is not limited by bill of rights- use reasonable and sensible
judgment combined with statutes, law, common law- If you look at existing
traditions such as these, martial privacy is never regulated
Is this like Lochner? No, b/c on a continuum (in Lochner, economic interest was what
was regulated, not here)
Level of scrutiny? High Scrutiny
Justice White
Right- Right to be free of marital intimacies
Source- DP and precedent
Lochner? No,
Scrutiny? Strict
Black opinion (dissenting, formalism):
Right- None
Source- Dont have to worry about it
State interest- Does not matter, if no right, does not matter what state interest is
Says 9th amendment is used to limit Federal powers, not strike down state laws
Lochner- Yes, this case is like Locher
Scrutiny- None, b/c there is no right
For Black, terrible thing about substantive DP gave Court too much power; if it was
wrong in Lochner, it is certainly wrong in this case. You must protect what is WRITTEN
in Constitution (Black will let any free speech be okay)
Stewart opinion (also dissenting):
Right- No
Source- X
Interest- X
Lochner- Yes
Scrutiny- X
He says no reason to go down substantive DP road, even though he himself would
not have voted for this silly law. His answer- vote the silly people out of office.

Roe v. Wade

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