CASE CHEAT SHEET

SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Judicial Review Power of Judiciary Marbury v. Commission; writ Ct. lacked Duty of Judiciary Art III, 2, Cl.
Madison (1803) of mandamus; original is to say what the 2 limit on
original jurisdiction to law is jurisdiction
jurisdiction grant writ
Review of State Martin v. State ct. seizure of Fed. License Court can review Supremacy
Action Hunters Lessee Brit prop. Vs. upheld state court Cl.
(1816) US/Brit. Treaty; interpretation of Art. III
VA claims no federal law doesnt
power to review preclude
review
Exclusive Cooper v. Aaron Ark. Says no to States must Sup. Ct. has Supremacy cl.
Interpretation of enforcement of abide by Sup. Ct. exclusive SCOTUS
Constitution Brown v. Board of interpretation of interpretation interprets law
Ed. Constitution of land,
therefore
what they say
is supreme

Justiciability Standing: Injury Lujan v. Endangered NO STANDING (1) Injury in fact Art. III, 2
& Redressability Defenders of Species Act; no injury in fact (concrete, cases and
Wildlife applicable to and no imminent); (2) controversy
actions in US or redressability Causal requirement
high seas connection
btwn. Injury and
conduct; (3)
redressability
Standing: Injury Massachusetts v. States sue EPA for STATES HAVE (1) Injury in fact Art. III, 2
EPA not regulating STANDING even (particularized); cases and
emission of though state not (2) Causal controversy
greenhouse gases normal litigant connection requirement
according to Clean particularized btwn. Injury and
Air Act injury in capacity conduct; (3)
as landowner redressability
(coastal property)
Jurisdiction Ex parte Publish incendiary Congress lacks Congress can Art. III, 2
Stripping; McCardle (1968) and libelous jurisdiction to withdraw (Exceptions
Mootness articles; habeas judge case jurisdiction; App. Clause)
proceeding; Jurisdiction is
Congress repealed conferred by
part of act granting Congress subject
SCOTUS review of to exceptions
writ of habeas
Political Baker v. Carr Tennessee Courts can decide In matter is Equal
Question legislature; malapportionment ministerial, court protection
Reapportionment; claims w/o setting does not have clause of 14th
injunction under standards on how power to order amendment
equal protection to reapportion; officials to do
clause just that it would things
be done Doctrine
introduced in
Marbury
distinction btwn
discretionary
political acts and
duties of
political actors

1
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Federalism McCulloch v. 2nd National States cannot tax Federal Art. I, 8

Maryland Bank; taxing federal Supremacy; enumerated
fed. Govt government Congressional powers
deference;
Art. I, 8, Cl. 18 -
Necessary &
Proper Clause
U.S. Term Limits, Qualifications INVALID! Right to States cant Art. I 2, Cl. 2
Inc. v. Thornton for choose impose Art. I, 3, Cl. 3
(1995) Congressional representatives qualifications for Art. I, 5
membership belong to the prospective 10th Amendment
law bans people, not the members of
election of state Congress stricter
candidate than what
serving more Constitution
than 3 terms specifies
Limits of United States v. Fed. Law VALID! Fed govt Fed govt has Art. I, 8, Cl. 18 -
Necessary & Comstock (2010) permits civil has authority authority under Necessary &
Proper Clause detention of under N&P cl. N & P cl. To Proper Clause
mentally ill, require civil
sexually commitment of
dangerous after individuals
sentence already in Fed.
custody

SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Commerce Pre-New Deal Gibbons v. Licensing of VALID (a) channels, (b) Art. I, 8, Cl. 3
Clause (Pre-1890) Ogden (1824) trade vessels; REGULATION! instrumentalities,
monopoly Congress has (c) substantial
power to effect
regulate
interstate (1) Commerce =
navigation; intercourse (incl.
Transporting navigation), (2)
people among =
constitutes commerce
interstate affecting other
commerce states, (3) only
limits to plenary
power of
Commerce Cl. =
Constitution
Hammer v. Child Labor Case INVALID Commerce OVERRULED BY
Dagenhart law bars REGULATION! clause does not DARBY
interstate Child labor laws apply to products
shipment of are strictly local of child labor
goods and govt cant (local matter)
manufactured interfere in
by child labor matters that are
strictly local
During New Deal U.S. v. E.C. Sugar Trust Case INVALID Commerce Art. I, 8, Cl. 3
(1890s 1937) Knight Co. law suppresses REGULATION! clause does NOT
NARROW monopoly in Manufacture extend to
sugar isnt commerce; production and
manufacture only incidentally manufacture;
affects only commerce

2
Commerce Champion v. Lottery Ticket VALID Congress may Art. I, 8, Cl. 3
Clause Ames (1903) Case REGULATION! regulate use of
Prohibited interstate
transportation of transport to
lottery tickets produce harmful
results
BROADER VIEW Houston East & Shreveport Rate VALID Congress has Art. I, 8, Cl. 3
West Texas Case railway REGULATION! authority to
Railway Co. v. charged higher Congress can regulate all
United States rates to regulate operations of
transport goods intrastate rail interstate
from Shreveport rates b/c they carriers
to Texas may affect
interstate
commerce
Carter v. Carter Price control of INVALID Production = Art. I, 8, Cl. 3
Coal Co. coal barring REGULATION! purely local
unfair Production is activity that
competition; local and for cannot be
Mining states to regulated by
production regulate; intent Commerce
to move goods Clause; not
being produced commerce
not enough (interstate effect
= indirect)
A.L.A. Wage and hour INVALID Direct/Indirect
Schechter restrictions; REGULATION! Stream of
Poultry Corp. v. stream of Poultry company Commerce
U.S. commerce at end of stream
of commerce
w/indirect effect
on commerce
After New Deal NLRB v. Jones & Act prohibited VALID Close & Art. I, 8, Cl. 3
(1937 1990s) Laughlin Steel unfair labor REGULATION! Substantial
BROAD Corp. (1937) practices Court can pass Relationship to
affecting legislation for Commerce:
interstate protection or Court may
commerce advancement of regulate activity
interstate that has a
commerce substantial effect
on or directly
burden/obstruct
interstate
commerce
U.S. v. Darby Barred VALID Production can OVERRULED
(1941) interstate of REGULATION! now be HAMMER
goods produced Congress has regulated; 10th
by employees plenary power amendment is a Art. I, 8, Cl. 3
making less than where there is truism
fed min wage or substantial 10th amendment
more than max effect; regulate
hrs. commerce to
protect health
Wickard v. Wheat VALID Regulation of Art. I, 8, Cl. 3
Filburn production at REGULATION! intrastate activity
home; quota on When taken that in the
farm production together aggregate has a
intrastate substantial effect
production on interstate
substantially commerce is
affects interstate okay

3
Commerce Heart of Atlanta Civil rights case; VALID Can regulate if Art. I, 8, Cl. 3
Clause Motels, Inc. v. act forbid racial REGULATION! substantial affect
U.S. discrimination in Affects interstate of interstate
motels commerce b/c it commerce even
can prevent if moral issue
blacks from
traveling
Katzenbach v. Civil rights case; VALID Racial Art. I, 8, Cl. 3
McClung no blacks in REGULATION! discrimination
restaurants; Affects interstate has significant
commerce b/c it impact on
discourages interstate
travel in commerce and
aggregate can be regulated
Contemporary U.S. v. Lopez Gun in school INVALID 1. Commercial Art. I, 8, Cl. 3
Commerce (1995) zone REGULATION! or economic
Power (1995 Possession of gun in nature
Present) alone is not 2. Substantial
NARROW interstate link to
commerce; no interstate
substantial link commerce
between gun 3. Essential
possession and part of
interstate larger
commerce regulation
of economic
activity

Rational basis
review-
reasonable and
rational relation
to attainment of
ends
U.S. v. Morrison Violence against INVALID Consider: (1) Art. I, 8, Cl. 3
(2000) women act REGULATION! jurisdictional
barred violence Not an economic element, (2)
against women regulation; state Congressional
based on police power; fact finding
substantial congressional even though not
findings findings = enough, (3)
indirect and economic nature,
irrelevant (4) substantial
effect on
interstate
commerce

- if non-
economic, cant
assume
aggregation
principle

Gonzalez v. Medical VALID Comprehensive Art. I, 8, Cl. 3

Raich (2005) Marijuana case REGULATION! regulatory
Aggregate of scheme to
nationwide regulate
growers would interstate
affect interstate commerce
commerce

4
 Local activities
can be regulated
if economic &
would have
substantial effect
& part of larger
reg. scheme
Commerce NFIB v. Sebelius Obamacare INVALID Cannot regulate Art. I, 8, Cl. 3
Clause REGULATION! economic
Individual inactivity
mandate did not
fall under
commerce power

SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

External Limits State Autonomy National Wage and hour INVALID Congress cant OVERRULED BY
on Commerce Limits League of Cities requirements REGULATION! regulate wages, GARCIA
Power: 10th & v. Usery Employee wages hours, and
11th and benefits of state
Amendment compensation employees when
Limitations are for state power is
plenary power traditionally
reserved to
states
Garcia v. San Fair Labor VALID Regulation of 10th amendment
Antonio standards act REGULATION! general
Metropolitan municipal transit obligations are Art. I, 8, Cl. 3
Transit authority subject permissible if
to min. wage they serve to
and overtime minimize
requirements burdens states
bear under
commerce clause
Seminole Tribe Act allowed INVALID Congress cant 11th Amendment
of Florida v. tribes to sue REGULATION! nullify 11th
Florida (1996) states 11th amendment amend.
cant be nullified
even if using Congress can
enumerated abrogate only
power under 14th Am.
(Commerce 5
power)
Commandeering New York v. Act required INVALID Congress may 10th amendment
United States states to take REGULATION! encourage, but
(1992) undisposed Provision coerced not compel Art. I, 8, Cl. 3
radioactive states into states to regulate
waste regulating waste radioactive
waste
Commandeering Printz v. U.S. Background INVALID Fed. Govt may 10th amendment
checks for gun REGULATION! NOT compel
purchases; state Cant command state officers to Art. I, 8, Cl. 3
enforcement states to enforce execute federal
officers must federal program laws
make power of
reasonable centralized govt
effort to would be too
determine gun is large
legal (commandeering)

5
External Limits Reno v. Condon DPPA penalty for VALID 10th am. 10th Amendment
on Commerce disclosure or REGULATION! Limitations
Power: 10th & resale of Congress may extend only to Supremacy
11th personal info in limit ability of attempts by fed. Clause
Amendment DMV records states to sell Govt to compel
Limitations personal leg. Or exec.
information State action
collected by (regulation of
DMV; only citizens as part of
restricting state fed. Program)
govt action so
not a Congress may
commandeering pass laws
of state govt affecting state
action, but
cannot pass law
requiring state to
enforce fed.
policy

SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Dormant Clause Early Dormant Cooley v. Board PA requires ships VALID States can have Art. I, 8, Cl.
Clause of Wardens of entering port to REGULATION! concurrent 3
Port of use local pilots or power to
Philadelphia pay fine regulate Art. IV, 2
(1851) commerce; Privileges &
State cant act Immunities
solely to Clause
promote its
econ. Interest
Facial Philadelphia v. NJ prohibits INVALID! Law is If simple Art. I, 8, Cl.
Discrimination New Jersey import of solid protectionist economic 3
against out-of- (1978) waste for imposes burden on protectionism,
state commerce disposal in NJ out-of-staters then invalid
unless NJ decides
it wont hurt
health/safety
Facial Dean Milk Co. v. Can only sell milk INVALID! Facially Facially Art. I, 8, Cl.
Discrimination Madison pasteurized discriminatory against discriminatory 3
within 5 miles out-of-staters act invalid
only; ban economic barrier unless no
regardless of protecting local reasonable
state milk came industry alternative
from; ensure high
health standards Doesnt matter if it
discriminated against
in-staters too

There are non-

discriminatory
alternatives to ensure
high health standards
C & A Carbone, All waste in town INVALID! Act deprives Local laws Art. I, 8, Cl.
Inc. v. to be deposited out-of-state business cannot 3
Clarkstown at one station for access to local market obstruct/
fee; P wants out- and burdens burden
of-state station interstate commerce interstate
commerce

6
Dormant Clause United Haulers All solid waste to VALID REGULATION! Regulation of Art. I, 8, Cl.
Assn v. Oneida- particular facility Facility owned by govt entity 3
Herkimer Solid instead of private state; disposing of permissible (as
Waste facility (flow trash is traditionally opposed to
control govt activity; state as regulating
ordinance) right to legislate for private entity)
health safety and
welfare of its citizens;
Doesnt discriminate
out-of-state vs. in-
state everyone must
use facility

SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Taxing Power Taxing Power as Bailey v. Drexel Child Labor Tax INVALID! Law is Tax = source of Art. I, 8, Cl. 1
Regulatory Furniture Co. Case fed. a penalty in revenue for govt
Device Excise tax (10% disguise (cant be so high as
of net income) penalizing to be coercive)
on employer of employers using Penalty =
child labor child labor regulation &
(serves to punishment for
regulate certain behavior
business instead
of tax) Congressional
Motive Framework
(1) Primary motive
should be to obtain
revenue, (2)
penalty if heavy
burden
U.S. v. Kahriger Excise tax on VALID! Upheld Just b/c tax is
gambling tax even though regulatory does
business it seemed to NOT mean it is
regulate invalid (rejects
behavior bailey analysis)

Congressional
motive not of
concern
NFIB v. Sebelius Individual VALID! Act is Tax must produce Art. I, 8, Cl. 1
mandate NOT a penalty revenue for govt
imposed tax on collected by IRS,
those who dont no scienter Penalty If: (1)
purchase requirement, exceedingly heavy
healthcare (pay 10% collection burden, (2)
added IRS fee not exceedingly Scienter
when you pay heavy burden requirement
taxes) punish those who
know, (3) not
collected by IRS

7
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Spending Power Spending Power as United States v. Farmers sign INVALID! (1) Act Congress can Art. I, 8, Cl. 1
Regulatory Device Butler contract invades reserved place
limiting state right to restrictions on
production in regulate money it gives
exchange for agricultural
subsidies from production; (2) Spending power
govt coercion - act is permissible for
compulsory (if general welfare
farmer rejects, (Hamilton), but
at significant impermissible if
disadvantage) coercive (power
of choice =
illusory)

Cant purchase
compliance
Spending After Steward Machine Soc. Sec. Act VALID Every tax is in Art. I, 8, Cl. 1
New Deal Co. v. Davis Tax on some way
(1937) employers if regulatory
employer
contributes to Test: condition
unemployment must
fund, get 90% substantially
cred for fed. relate to
Unemployment purpose of
tax program
South Dakota v. Raise drinking VALID DOLE TEST: Art. I, 8, Cl. 1
Dole age from 19 to REGULATION! (1) For general
21 or lose 5% of For general welfare, (2)
highway welfare, clearly stated,
funding rationally (3) connected to
related, not funding, (4) not
otherwise otherwise
unconstitutional, unconstitutional,
not coercive (5) not coercive
(small % of
funds)
NFIB v. Sebelius Follow ACA or INVALID Invalid when Art. I, 8, Cl. 1
lose ALL REGULATION! pressure turns
Medicaid Lose all funding to compulsion
funding = Coercive

8
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Separation of Exec. Assertion of Youngstown Exec. Order to INVALID! Formalist (Black): Art. II
Powers Power Sheet & Tube Co. seize steel mills President no power in Art.
(Executive v. Sawyer (1952) after steel strike doesnt have II for order only Art. V
Powers) shut down power to issue power is what is Congress
production; exec. Order in text should raise
Truman; Korean & support
War JACKSON troops
CATEGORIES:
(1) Pres. act
authorized by
Congress, (2)
Congress is silent,
(3) In Conflict

FRANKFURTER:
Congress
acquiesces to
systematic,
unbroken
practice of pres. =
gloss on exec.
Power vested to
pres.
National Zivotofsky v. Act allowed INVALID! Only Structure of Art. II, 3
Domestic Policy Kerry (2015) citizens born in pres. Has power Constitution gives Reception
Jerusalem to of recognition Pres. Control over Clause
have Israel on as implied by recognition
passport recog. the reception (additional Art. II Art. II, 2, Cl.
Jerus. As part of clause powers granted) 2
Israel though
Pres. Hasnt; Pres. Has
Zivotofsky wants exclusive power
Israel on of Recognition
passport, which Nation must
isnt formally speak w/ 1 voice
recognized
Foreign & Military Dames & Moore Iran; Hostage Act; VALID! Pres. Can Cong. Silence Art. II
Affairs v. Regan (1981) Lawsuits suspend claims doesnt mean
suspended against Iran if to approval or
resolve major disapproval
foreign dispute look to historical
and Congress practice
acquiesced;
Gloss on exec.
Power
congress silent,
but acquiesced
to long,
unbroken
practice of exec.
Exec. Treaty Medellin v. Texas Directing state to INVALID! Pres. Pres. cant turn
power over States act in accordance Has other ways non-self-
w/ treaty (Vienna to enforce executing treaty
convention); international into a self-
states must obligations; executing treaty
respect ICJ power of
judgments Congress to turn
intl obligations

9
 into domestic law
Exec. Discretion Ex parte Milligan Indiana citizen in NO TO So long as ct. is Art. II
During Times of non-rebel state, MILITARY open, cant
War or Terrorism non-military COMMISSION! suspend use of
detained for Rejected laws civilian ct. for
MILITARY participation in and usages of civilian US
TRIBUNAL OR rebellion; war argument citizens
CIVILIAN COURT sentenced to cant be used
death by military against citizens Cant deprive
tribunal; should in states where civilian citizen of
he have been courts are open right to civilian ct.
tried in civilian to hear cases just b/c
ct.? exigencies of the
Milligan should country demand
have been it
granted trial by
jury in civilian
ct. Right of
every civilian
citizen
ACCESS TO FED. Ex Parte Quirin German UPHELD TRIAL Unlawful enemy Art. II
CT. OR MILITARY (1942) saboteurs, lived BY MILITARY combatants, even
TRIBUNAL in US, trained in TRIBUNAL! if citizens and did
Germany, snuck Congress not enter theater
to US shores, authorized for of war can be
buried uniforms, military denied jury trial
captured & tribunals to try before civilian
detained in US. belligerents courts will be
Pres. Appoints subject to trial
military tribunal Capture, before military
for them to be detention, & tribunal
tried; They argue trial of lawful
5th & 6th Am. combatants = Enemy
rights recognized as belligerents will
important not be afforded
incidents of war Constitutional
prevent return protections
to field of battle
Lawful
combatants
captured as POW;
Unlawful
combatants tried
in military
tribunals
HABEAS REVIEW, Johnson v. Germans fighting HABEAS NOT Privilege of
MILITARY Eisentrager for Japan GRANTED in US litigation extends
TRIBUNALS, & (1950) captured and put Ct.! (a) enemy to all, but when
FED CT. in military alien, (b) never capture, trial, and
tribunal in China. resided in US, punishment are
Served sentence (c) captured all outside of US,
in Germany, then outside US, (d) they are beyond
sought habeas tried by military US jurisdiction;
review commission To grant alien
outside of US, belligerents
(e) offenses would require
committed too many
outside of US resources used
for enemys
comfort

10
HABEAS Rasul v. Bush Guantanamo Court can Fed. Judges have Art. II
PETITIONS & detainees who review habeas jurisdiction to
GUANTANAMO are not nationals petitions from hear habeas
DETAINEES of country at war Guantanamo petitions from
w/ US seek detainees (a) Guantanamo
habeas petition; US has plenary detainees
held without and exclusive (permissible, but
access to tribunal jurisdiction of not a right) b/c it
for 2 years Guantanamo is a territory of
(even if not the US
ultimate
sovereignty)

Compared to
denial of Habeas
in Eisentrager

HABEAS RELIEF Hamdi v. Congress HABEAS Can detain Art. II

PROCESS OWED Rumsfeld (2004) authorized GRANTED! NO citizens as enemy
TO ENEMY detention of INDEFINITE combatants, but
COMBATANTS individuals in US DETENTION W/ due process
w/ AUMF (Pres. TRIAL P must demands
Can use all receive (1) opportunity to
necessary & notice and (2) contest
appropriate fair trial in front detention/enemy
force) of neutral combatant status
decision-maker before neutral
US born (citizen), decision maker
detained US may detain
indefinitely w/ for duration of Habeas available
classification as hostilities for all detained
enemy within US absent
combatant. Authority to suspension
Hamdi sought detain under
habeas relief AUMF allowed Mathews v.
only once it is Eldridge Test:
What process is clear individual Process due
due to a citizen is an enemy determined by
disputing enemy combatant weighing private
combatant interest against
status? Ct. not govt interest and
overstepping burdens govt
separation of would face in
powers war providing greater
not blank check process
for pres. role
of judiciary =
judicial checks
and balances
RIGHTS Hamdan v. Yemeni national Hamdan Habeas extends Art. II
AFFORDED IN Rumsfeld (2006) detained in deserved to detainees in
MILITARY Guantanamo. Common Art. 3 Guantanamo Art. III
TRIBUNAL TO Captured in rights under (Rasul) Grants fed.
GUANTANAMO Afghanistan, Geneva ct. juris. to
DETAINEES turned over to Convention & Structures and hear cases
US, transported UCMJ (1. Right procedures of
LEGALITY OF to Guantanamo. to be present at military
MILITARY Petitions for writ trial, 2. Right to commission must
COMMISSIONS of habeas. know evidence not conflict with
Military against him) Geneva
commission Convention &

11
 proceedings Concurrence: UCMJ
questioned Falls into
Category 3 of Military
Tripartite Convention
Analysis Established
conflicts w/ will When: (1) martial
of congress as law declared, (2)
seen in UCMJ occupying
territory w/o
functioning govt
(3) on battlefield
as incident of
conduct of war
Rumsfeld v. US citizen Case reversed No executive
Padilla (2004) arrested in on jurisdictional detention w/o
Chicago for grounds congressional
allegedly planting improper filing authorization
dirty bomb at of habeas (Non-Detention
airport; declared Act) Cat. 3 in
an enemy Takeaway = Youngstown
combatant by congressional (pres. Power at
Pres. authority lowest ebb)
needed for
exec. Detention
Boumediene v. Non-American DETAINEES Those detained at Art. II
Bush (2008) citizens ENTITLED TO Guantanamo
designated as HABEAS have right (as Art. I, 9, Cl.
enemy HEARINGS opposed to cases 2
combatants Suspension that say they Suspension
(which they clause in full may) to habeas Clause
deny), captured effect at suspension
outside of US Guantanamo To determine of habeas
detained in reach of permitted
Guantanamo. Framers Suspension where public
Military considered writ Clause consider: safety
Commissions Act a vital (1) citizenship & requires
7 suspended instrument for status of
writ of habeas. protection of detainee and
Constitutional? individual process of
liberty determination of
specified limited status, (2) where
grounds for captured and
suspension in detained, (3)
Constitution obstacles in
granting writ (not
dispositive)

HAMDI, HAMDAN, & BOUMEDIENE

ALL THREE Presidents detention & trial procedures were invalidated
HAMDI & BOUMEDIENE Presidents actions authorized by Congress (category 1), but still invalid b/c of due
process (Hamdi) and suspension clause (Boumediene)
HAMDAN Category 3

12
 EXECUTIVE POWERS
1. No exclusive or preclusive authority conferred to Executive by Vesting, Take Care, or Commander-in-Chief Clauses
a. Commander in Chief of military IS NOT Commander in Chief of the Country, Its Industries, and Inhabitants
(Youngstown)
b. Vesting Clause shows Presidents power isnt limited to what is enumerated
2. Executive Power over Foreign Relations:
a. Executive policy making in foreign affairs may be stronger than in domestic affairs (Dames & Moore v.
Regan; Youngstown)
3. Executive Power over States w/ Treaty Power:
a. Executive may regulate through Congress with a non-self-executing treaty Congress must implement a
non-self-executing treaty
i. Constitution: Treaty making power shared between Executive & Legislature President is
vested w/ authority to make treaty, but in order for it to have domestic effect, it needs Senate to
consent to treaty w/ 2/3 vote Non-self-executing treaty (Medellin v. Texas)
ii. Ratification Required for both Self-Executing and Non-Self-Executing Treaty
4. Executive Power in Times of War:
a. Congress Power to Declare War (Art. I, 8, cl. 12 & 13), raise and support armies and navies (Art. I, 8,
cl. 12 & 13)
b. President Power to act as commander in chief of armed forces (Art. II, 2)
c. Involvement of BOTH branches prevents war from being entered into lightly or quickly and w/o public
support
d. WAR POWERS RESOLUTION OF 1973 (quasi-Constitutional): collective judgment of Congress & President
will apply when introducing armed forces into hostilities (FRAMERS INTENT)
i. President can only introduce troops into hostilities when (1) war has been decaled, (2) statutorily
authorized, (3) national emergency created by attack president may send troops, tell Congress
within 48 hours, and bring troops back if no approval within 60 days
e. Emergency Constitutionalism Limitations During War Time:
i. Suspension Clause (Art. I, 9, cl. 2) writ cannot be suspended unless in cases of rebellion
where public safety requires it (Boumediene v. Bush)
ii. State Limitations: Art. I, 10, Cl. 3 Limitations on power of states
iii. Executive Limitations
1. 3rd Amendment Limits Executive Discretion to conscript private property even in
wartime
2. 5th Amendment Grand jury indictment (exception: martial law)
iv. TWO VIEWS OF EMERGENCY CONSTITUTIONALISM:
1. Constitution doesnt change during wartime (Ex parte Milligan)
2. All bets are off (Abraham Lincolns suspension of habeas)

13
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Congressional Non-Delegation INS v. Chadha Act authorized INVALID! Act Congress cant Art. I, 7, Cl.
Authority to Doctrine (1983) House of violated explicit act alone 2&3
Restrain & Congress to constitutional Presentment
Enable the invalidate standards of All legislation Clause
Executive decision of lawmaking and must be
Executive branch congressional presented to Art. I, 1 and
to suspend authority President before 7, cl. 2
deportation of Veto provision is becoming law Bicameralism
deplorable alien severable from (presentment requirement
if met specified rest of act clause)
conditions and
would suffer Lawmaking is No Legislative
extreme hardship power to be Veto Must go
if deported. shared by both through proper
Chadha houses channels of
overstayed (bicameralism) passing a bill
student visa in
Kenya. Attorney
Gen. suspended
deportation
pursuant to Act.
House vetoed
decision.
Non-Delegation United States v. Joint Resolution VALID! Non-Delegation
Doctrine Curtiss-Wright of Congress laid President has Doctrine doesnt
Export Corp. down narrowly broad authority bar Congress
(1936) defined to conduct from delegating
standards by foreign affairs great authority
which Pres. is to and discretion to
be governed; Pres. In conduct
Authorized Pres. of foreign affairs
To prohibit sale
of arms and
munitions to
Bolivia &
Paraguay who
were involved in
conflict; Curtiss
indicted for
conspiracy;
argued
unconstitutional
delegation of leg.
Power to exec.
Bicameralism & Clinton v. City of Clinton tried line INVALID! Act President may Art. I, 7, Cl.
Presentment New York (1998) item vetoing by allowed Pres. To initiate and 2&3
cancelling unilaterally influence Presentment
provision in amend or repeal legislation, but no Clause
Balanced Budget parts of the Constitutional (present to
Act (cant pick statutes provision pres. For
and choose Violation of authorizes him to signature or
provisions- must Presentment enact, amend, or rejection)
pass law as it or Clause; repeal statutes
reject law as is) (NARROW
HOLDING) Const. silence on
No line item unilateral pres.
veto for Action is taken as
president prohibition

14
Congressional Exec. Functions to Bowsher v. Synar Act gave INVALID! Congress cannot Art. I, 7, Cl.
Authority to Leg. Officer (1986) Congress power Violation of impose executive 2&3
Restrain & to remove separation of functions on an Presentment
Enable the Comptroller powers officer over Clause
Executive General for Congress cant whom Congress
certain specified control how law has power of
reasons is executed removal -- Cant
(inefficiency, create officers to
neglect of duty); Comptroller enforce the law;
Bowsher General = agent Congress has no
(Comptroller of Congress removal power
General) (except
challenged act impeachment)
Restricting Myers v. United Statute said INVALID! Pres. Power to
Executive States (1926) certain Unconstitutional execute laws
Removal Power postmasters restriction of implies power to
(purely exec. executive select those who
Officers) couldnt control over were to act under
be removed by exec. Personnel his direction in
President w/ pres. Has executing the law
Senate consent removal power (purely exec.
over exec. Officers)
Officers w/o
consent of Also plausible
senate that he should
have power to
remove those
who cant be
responsible for
helping him
execute
Appointment of Buckley v. Valeo Fed. Elections Violated Principal officers Art. II, 2,
Executive Officers (1976) Committee 4 appointment (Subject to Cl.2
out of 6 clause b/c they appointments Appointment
appointed by are officers of clause clause
Congress and 2 US; Way they nominated by
out of 6 by appointed them pres. W/ advise &
President violated consent of
appointment senate); Inferior
clause pres. officers
Finds candidates (President can
and senate appoint solo)
approves or
rejects Officer of US =
person significant
to the laws of the
US
Morrison v. Olsen Ethics in Govt VALID! Act did Morrison Factors:
(1988) Act not violate If officer,
independent separation of principal of
counsel with powers; gave inferior? (1)
exec. Powers exec. Branch removed by
creating sufficient higher branch
something like a control over official, (2)
4th branch. was independent certain limited
given jurisdiction counsel to duties, (3) limited
to investigate render jurisdiction, (4)
Olsen for president able limited tenure; If
violation to faithfully officer is part of
execute law exc. Agency, pres.
can remove w/o
consent of senate

15
 Removal Humphreys Issue: Pres. INVALID Presidents
Executor v. Power to remove REMOVAL! power to remove
United States exec. Officials w. Quasi officers officers w/o
quasi leg. And may be Senate limited to
quasi judicial removed only purely
functions by procedures executive
consistent w/ officers
Pre. Fired statute enacted
Humphrey from by Congress Offices that
Fed. Trade Com. function without
exec. And in
FTC Act contemplation of
permitted pres. statute must be
To dismiss FTC free from exec.
member only for control
inefficiency,
malfeasance,
negl. Of duty

CONGRESSS POWER TO RESTRAIN AND ENABLE THE EXECUTIVE

Restraint over Executive officers actions:
Non-Delegation Principle Congress may not constitutionally delegate its legislative power to another branch of
government (Limits agencies rulemaking power)
o Doctrine doesnt prevent Congress from seeking assistance within proper limits from other branches
(Touby v. United States)
o Circumventing the Non-Delegation Principle
Congress legislates in broad terms to leave degree of discretion to executive or judicial actors
Intelligible principle laid down by legislative act that tells person or body authorized to
act to conform circumvents forbidden delegation of legislative power
o Weak in domestic sphere; Even weaker in foreign affairs (United States v. Curtis-Wright Export Corp.)

16
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Congressional Post War Woods v. Cloyd Cong. Reg. rent VALID! War War powers Art. II
War & Treaty Congressional W. Miller Co. by virtue of war contributed extend beyond
Powers & Action (1948) power even after heavily to deficit war to remedy Necessary &
Implied Power war ended in housing; evils arisen out of Proper
over Foreign thereby war Clause
Affairs Congress has
power to pass Congress can
leg. To remedy authorize setting
even after war up of military
tribunals, declare
war, control
funding

Non-Self- Missouri v. Bird Migration VALID! Treaty National interest Art. II, 2
Executing Treaties Holland (1920) Act; treaty not self- of great power to
agreement w/ executing and magnitude that make treaties
Canada; non-self does not can only be Art VI
executing treaty; contravene any protected by treaties
argued to be prohibitory national action supreme law
violation of 10th words in Const. makes non-self- of land when
am. protection executing act made under
valid authority of
US
Art. I, 8
Nec. & Prop.
Treaty & Reid v. Covert Exec. Agreement INVALID! No Treaties cannot Art. I, 8
Individual RIghts (1957) permitting agreement w/ a be used to justify
American military foreign nation domestic action
ct. exclusive can confer used to limit
jurisdiction over power to any individual rights
offenses by other branch
American free from
servicemen or restraints of
their dependents constitution
overseas
Law Extending to Bond v. United Chem. Weapons INVALID! Statute does not
Local Conduct States (2014) Convention Reversed apply to conduct
Implementation conviction like this Looks
Act forbids Congress did to purpose
chemical not mean to
weapons. Bond reach purely
used chemicals local crimes w/
against best act in way to
friend cheating intrude on state
w/ husband; police power
violation of act
Laws Extending Downes v. Fruit merchant PR not fully part Prohibitions go to
Outside of US Bidwell (1901) against law of rest of root of power of
enacting duty on country Congress to act at
imports from (territory, not all irrespective of
Puerto Rico state), but place or time
Constitution still
applies

17
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Executive Executive U.S. v. Nixon Grand jury indicts Pres. Not President doesnt Art. II, 4
Privilege & Privilege (1974) associates of allowed to have absolute when
Immunities Pres. For shield all generalized impeachable
conspiring. Dist. communications privilege
Ct. request from subpoena Art. I, 2, Cl. 5
subpoena for in criminal Neither Congress
documents and proceeding separation of has sole
tapes. Nixon says powers nor power to try
tapes are confidentiality impeachments
privileged without more
sustains
immunity w/ due
process

Balancing Test
required (protect
military secrets
vs. interest in
criminal justice)
Exec. Immunity Nixon v. Fitzgerald = IMMUNE! Ct. Absolute
From Civil Fitzgerald (1982) whistleblower; wants to protect presidential
Damages Liability lost position w/ Pres. From suits immunity from
for Official Air Force; that would civil liability for
Actions brought damage cause him to be his official acts in
action claiming unduly absence of
violation of 1st cautious in explicit
Amendment and discharge of affirmative action
statutory rights; important by Congress
named President Presidential (impeachment)
Nixon as duties He
defendant shouldnt be
concerned w/
aroused feelings
Exec. Privilege Clinton v. Jones Paula Jones NOT IMMUNE! Pres. Doesnt
(1997) commenced Immunity enjoy temporary
action alleging related to the immunity from all
sexual advances nature of civil lawsuits
by President, function based on his
which she performed, not unofficial acts
rejected and was identity of actor
punished at work who performed
for. Sought it.
punitive damages
President says no Trial taking up
trial till end of his his time isnt
term enough

18
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Post Civil War Individual Rights Barron v. Barron owned wharf State lacks Bill of Rights (5th 5th
Amendments & Pre-Civil War Baltimore in Eastern Baltimore. jurisdiction to Am.) Doesnt Amendment
Incorporation of (1833) City diverted hear claim apply to states,
Fundamental streams, which made only the federal Art. I, 9 &
Rights water too shallow for 1st 10 am contain govt 10
vessels. Barron no expression structural
claimed 5th am indicating argument
violation (just application to
compensation for state govt
taking of private
property) Art. I, 9 limits
intended to be
imposed on
powers of gen
govt
Art. I, 10
limits on state
(means not
every inhibition
meant for states)
Dred Scott v. Dred Scott slave NO STANDING! Overruled by
Sanford (1857) brought to free Blacks not 14th
territory (Wisconsin); entitled to amendment
owner died and Scott privilege to sue made all US
returned to Iowa; in court (rights born persons
widow refused to sell under citizens
him his freedom; constitution)
sued for declaratory not a citizen
judgment
Merits: Missouri
Compromise
unconstitutional
congress went
beyond power
Post Civil War Slaughterhouse Louisiana statute VALID! 3 Privileges and
Amendments Cases gave monopoly; amendments Immunities of
Butchers had to use cited by butchers citizenship not
that 1 are all related to same as p & I of
slaughterhouse; the slave race citizens of a
State says health & and are for state
safety concerns; protecting newly
Butchers claim right freed men
to pursue profession
w/o discrimination
(14th am. Equal
protection and 13th
priv. and imm.)
Saenz v. Roe Wanted to move to INVALID! State There is a Art IV, 2
Cali; Challenged Cali lacked constitutional
statute and compelling right to travel
PRWORAs interest from one state
durational residency (discovering to another
provision limit fraud and
welfare benefits to establishing
those who reside for objective
less than a year residency test,
not compelling
enough)

19
Incorporation of Palko v. Claimed double NO VIOLATION! Selective
Bill of Rights Connecticut jeopardy in 5th Am Incorporation -
through Due (1937) was violated and Not all bill of
Process Clause argued what is rights are
forbidden by 5th is incorporated by
also by 14th 14th amendment

Fundamental
fairness
standard
Duncan v. Convicted of battery VIOLATION! Test: Is provision
Louisiana in LA. Jury trial Questioned essential to
reserved for higher whether specific fundamental
offense matters. provision was fairness? If yes,
Claimed 14th am essential to applied to states
incorporates 5th am fundamental
rights fairness in order Look to
to make it historical
applicable to the practice
states yes.
Matches 6th
District of Ban on handgun INVALID! Individual has
Columbia v. possession in home Violation of 2nd right to possess
Heller (2008) Amendment a firearm
unconnected w/
Lawful service in a
regulation = militia and right
conditions and to use firearm
qualifications for traditionally
placed on lawful purposes
commercial sale (i.e., self-
of arms and defense in
prohibitions on home)
concealed
weapons,
carrying to
school, etc.
McDonald v. Ban on handgun VIOLATION! 14th am extends
City of Chicago possession by private to states (2nd
(2010) citizens. Residents amendment is
sue violation of 2nd applicable to the
amendment as states through
incorporated by 14th 14th Am)

Bill of rights
guarantee of
fundamental
rights fully
binding on
states

20
 SUBJECT SUB-TOPIC CASE FACTS HOLDING RULE CONSTITUTION

Substantive Due Lochner Era Lochner v. NY Law restricts Law interferes Lochner Era:
Process & work hours of w/ right to Court declined
Economic bakers. Lochner contract to regulate
Liberties argues violation between economic rights;
of 14th employer and deference to leg.
employees So long as
rational basis
No public health
issue related to Struck down
upholding of law state legislation
that struck down
economic
Nebbia v. New Milk control Milk affects Rational basis
York (1934) board fixes retail health and test state may
prices to be prosperity; adopt whatever
charged in industry affected economic policy
stores. Grocery by price reasonably
owner convicted instability deemed to
of selling below promote public
min price welfare and
enforce policy
by legislation
related to
purpose
Post Lochner West Coast Hotel Minimum wage VALID! Economic
v. Parrish (1937) law for women Legitimate public Substantive Due
interest: Women Process
face
disadvantage in No more
market power. freedom to
Market contract
disadvantage as argument
product of legal
regime must No to neutrality
not be treated consider
w/ nuetrality exploitation of
women in
market
Carolene Products Upheld fed.
Prohibition of
interstate
shipment of
filled milk
Williamson v. Lee OK statute Rationality of
Optical (1955) optician cant fit Legislation Is
lens or supply it related to its
frame w/o goals and is
prescription. there a rational
(Optometrist means/ends
case); convicted relationship?
for doing so Up to legislature
to balance
advantages and
disadvantages of
new
requirements

Higher level of
deference

21
Heller Individuals have right to bear arms for self-defense purposes
2nd amendment
- exists only for govt controlled militias vs. exists for individuals protections
- Due process cant just enact the law saying you cant have guns

Post-Civil War Amendments & Civil War Rights

DRED SCOTT:
- From Dred Scott to Incorporation Cases: Just applies to fed govt all of it applies to the states

SLAUGHTERHOUSE CASES:
- Distinguishing privileges and immunities of the citizens of the united states and citizens of the states
o Citizens of US Protected by federal constitution (Art. IV, 2, Cl. 1)
o Citizens of States Not protected by Art. IV; privileges and immunities from the state itself (14th
amendment)
o Comity Clause similar to dormant commerce clause Citizens of state A cannot discriminate against
state B
- 13th and 14th and 15th amendment were only narrowly applied (to protect former slaves not for everyone)

U.S. v. Miller 2nd amendment

INCORPORATION p. 263-482
Incorporation only fundamental rights should be incorporated
- Privileges and Immunities of citizens and (5th and 14th amendment)
- Incorporated for citizens of US or citizens of states Bill of Rights was meant for both states and federal
government (Adamson post slaughterhouse cases Palko v. Connecticut 14th amendment applies only to
fundamental rights)
o Protection from laws of the federal
- Palko & Adamson in agreement Dissent in Adamson: due process requires total incorporation of bill of rights
o Didnt want to infringe on states by imposing protections on individuals respect for policy maker

Palko double jeopardy 5th amendment isnt a fundamental right (certain fundamental rights)

Takings Clause 5th amendment

Pre-Warren Court:
- Look at whether action violated fundamental fairness requirement implicit in due process
o Look at cannon to see if right should be applied to the states
- Looked at historical practice to see what

Warren Court:
- Never abandoned fundamental rights standard, but incorporated

22