Judicial Review Under Marbury v.

Madison, SCOTUS may exercise judicial review over executive and legislative actions to determine their
constitutionality. However, SCOTUS may not exercise review over political questions. The Constitution serves as a regulatory document, acting as the
Supreme Law of the Land. Article III §2 of the Constitution acts as a ceiling on federal court jurisdiction and Congress may not increase that
jurisdiction. M&M was expanded upon in Martin v. Hunters Lessee and Cohens v. VA, by extending SCOTUS review over state court decisions
pertaining to federal law and to criminal Ds with Constitutional violations.
Executive authority originates from Article II, vesting this power in the President. However, this power is limited to authority granted to him either
by the Constitution or Congress. In Youngstown Sheet & Tube, SCOTUS held that in acting in a legislative/lawmaking capacity without an act of
Congress providing such authority, the President’s executive order calling for the seizure of the nation’s steel mills was unconstitutional. The court
held that the President may only act with Congressional or Constitutional authority. The President’s power rests within executing the laws, not making
them. In his famous concurrence, Jackson established a tripartite approach for analyzing presidential authority. If a President acts with either an
express or implied grant of authority from Congress, his authority is at its highest ebb. If there is Congressional silence on the President’s action, there
exists a zone of twilight in which the outcome depends on contemporary imponderables. When the President acts with Congressional disapproval, he
may only act if the Constitution gives him the sole power to make this decision. In Clinton v. NY, SCOTUS held that constitutional silence on a
Presidential action is the equivalent of an express prohibition. The court further emphasized that the President cannot serve as a lawmaker and
Congress cannot delegate their lawmaker power to the President. If they wish to do so, they must amend the Constitution to allow this break from the
separation of powers.
Executive Privilege In US v. Nixon, SCOTUS held that the scope of executive privilege is a determination that should be left to the court. Further, the
need for executive privilege is outweighed by the need for evidence at a criminal trial. The court upheld judicially compelled disclosure. In Cheney v.
US Dist Ct DC, stated that this really only applies in the criminal context.
Executive Immunity In Nixon v. Fitzgerald, SCOTUS held that in the absence of an express Congressional creation of liability, there is absolute
presidential immunity for actions taken as President against civil damage. The scope of this immunity covers the capacity of the office. However, as
decided in Clinton v. Jones, there is little to no immunity for actions taken before becoming President. The court emphasizes the importance of
allowing the President to be free to perform his duty without inhibition. The court also recognizes that individuals wronged by the President outside
his/her official capacity deserve some recourse.
Int’l Affairs The President is granted a degree of freedom and discretion when it comes to international affairs. In US v. Curtis Wright, SCOTUS
upheld an otherwise unconstitutional delegation of legislative power to the President on the grounds that its exclusive goal was to provide relief in a
foreign conflict. The court emphasized that the President has a broader scope of discretion in international affairs than domestically. In Dames &
Moore v. Regan, the court narrowly held that President Regan had the authority to settle claims through executive orders where the settlement is
necessary for the resolution of a major policy dispute between the US and another country and where Congress acquiesces to the action. The court
distinguished D&M from Youngstown because there was distinct connection to foreign policy. In Zivotofsky v. Kerry, court held that the President has
the authority to formally recognize a foreign sovereign through executive power that Congress cannot contradict by statute. The court inferred that
power from the power to appoint ambassadors.
War Powers The Constitution grants the title of Commander and Chief to the President and grants him the power to negotiate treaties and to appoint
and receive ambassadors. The Constitution grants Congress powers over military and foreign affairs, such as the power to declare war, regulate the
military, ratify treaties, confirm ambassadors, and regulate foreign commerce. (Power struggle when President authorizes military action and conducts
foreign affairs without Congressional interference). Although national security is at issue during times of conflict, SCOTUS has held that certain
rights, especially of enemy combatants, cannot be ignored. For example, in Hamdi v. Rumsfeld, the court held that due process guarantees that US
citizens held in the US as enemy combatants must be given a meaningful opportunity to contest the factual basis for the detention before a neutral
party. Further, in Boumediene v. Bush, the court held that courts must provide detainees held as unlawful alien enemy combatants a writ of habeas
corpus to challenge the detention, or if a writ is not available, provide an adequate substitute process. The suspension of the writ was unconstitutional
because of the absence of rebellion or insurrection
Agencies Congress, as the law making body of the US, is prohibited from creating agencies and giving them unfettered discretion to issue regulations
and make rulings. Instead, when Congress confers their decision making authority to agencies, Congress must set forth an intelligible principle that can
be used by courts to determine whether the agency has overstepped its power in issuing a rule or order (Non Delegation Doctrine- Whitman).
Congress’ power to delegate rulemaking authority to administrative agencies is broad, and the intelligible principle criteria is routinely broadly
interpreted. Schechter Poultry: the court held that code making was an unconstitutional delegation of law making authority because there was no
intelligible principle or specific criteria to guide the agency.
Legislative Vetoes are not allowed as they violate separation of powers and federalism. According to INS v. Chadha, legislation providing Congress
with a 1 house veto over an action of the executive branch does not meet the Constitutional requirements of presentment and bicameralism. When the
Constitution expressly provides a procedure, it must be followed.
Appointment Under Article II §2, the President nominates and the Senate confirms principal public officers. It is unconstitutional for Congress to
establish other procedures. Inferior officers may be appointed by others. Congress may vest this power in the President, courts, or heads of
departments. In Morrison v. Olson, SCOTUS held that a law vesting the judiciary with the power to appoint an inferior executive officer (independent
counsel) and prohibiting removal without cause does not violate the separation of powers. According to NLRB v. Canning, the recess appointment
clause authorizes the President to fill any vacancies during any recess- during or between sessions of Congress- of sufficient length. When the vacancy
arises does not matter. Senate is in session when it says it is, as long as it retains the capacity to conduct Senate business.
SCOTUS has held that the President alone has the power to remove executive officials. The President can remove the heads of executive agencies at
will as they serve at the pleasure of the President. However, the President may only remove the heads of independent agencies for just cause, as they
are appointed for a term of years and have the right to serve out their term unless guilty of misconduct. This just cause is reviewable by courts. In
Myers v. US, an act requiring congressional consent to remove postmasters of the first class was found unconstitutional because the constitution does
not grant congress the right to participate in the removal of inferior officers, only the power to delegate the power to remove inferior officers.  In
Humphrey’s Executor, the Court held that under Myers, the president has unrestricted power to remove executive branch officials like the postmaster,
but the federal trade commission is an administrative agency created by congress, so the president has no power to remove outside of reasons specified
by congress.
N&P Under Article I §8 Cl 18, Congress shall make all laws necessary and proper for carrying out the powers of the Constitution. Established in
McCulloch v. Maryland, Congress may enact legislation where the ends fall within an enumerated power and the means chosen are closely related to
that end. The means must be necessary (effective) and proper. If a power is legitimate, the government has the authority to choose the means of how to
carry it out.
Commerce Found within Article I §8 Cl 3, Congress has the power to regulate commerce with foreign nations and among the several states. In
Gibbons v. Ogden, SCOTUS held that this is a plenary power but Congress may regulate all commercial activities occurring between states BUT NOT
activities occurring solely within the borders of one. Under the commerce clause, Congress has the power to enact laws imposing civil and criminal
penalties for engaging in certain kinds of activities that in the aggregate, substantially affect interstate commerce; The current interpretation of the
Commerce Clause, established in Lopez, Morrison, Gonzales, and Sibelius, asserts that Congress may regulate the channels of interstate commerce, the
instrumentalities of interstate commerce and persons or things in interstate commerce (requires a jurisdictional hook), activities that have a substantial
effect on interstate commerce, and purely intrastate activity that is not commercial if it concludes that failure to regulate that class of activity would
undercut the regulation of the interstate market in that commodity. In the area of non-economic regulation traditionally left to the states, Congress
cannot regulate based on a finding of substantial cumulative effects. If the activity is economic in nature, then its aggregate effect may be analyzed to
determine whether it substantially affects interstate commerce. The Commerce Clause can only regulate actively occurring activity. Congress cannot
compel individuals to participate in commercial activity.
Morrison- VAWA is not economic; Lopez- guns; Gonzales- weed
CR: Congress used Commerce to enforce Civil Rights Act of 1964. Heart of Atlanta Motel- lack of accommodation for AA affects interstate
commerce. Katzenbach v. McClung- food brought in through interstate commerce, take out for blacks only. Court focused on substantial cumulative
effect on commerce and the aggregate effects of discrimination on interstate commerce

10th Am as a limit to Congress’s power- powers reserved to the states. Congress cannot pass regulations that commandeer states’ legislative
processes. They may not compel states to enact or administer federal regulatory programs. They can however,(1) in the instances where Congress has
the authority to regulate private activity under the Commerce Clause, offer states the choice of regulating the same activity according to federal
regulations or be preempted or (2) under their spend power place provisions on federal funds. NY v. US. Congress may regulate states’ activities using
the Commerce Clause provided that the regulation does not require the state to enact any laws or regulations and does not require state officials to
assist in the enforcement of federal statutes regulating private individuals. Reno and Printz.
T&S Under Article I §8, Congress may tax and spend to pay debts, provide for the common defense, and to promote the general welfare. Congress
cannot pass laws to promote the general welfare, but may tax and spend to promote the general welfare. Under the general welfare clause, congress has
the power to enact laws imposing taxes on virtually any product or conduct.  Under US v. Butler, Congress cannot use its tax and spend to invade the
rights reserved for the states. Spending must be general in nature and not benefit a specific area of the country. According to S. Dakota v. Dole, (1)
Congress may tax and spend to promote the general welfare, (2) place unambiguous conditions on federal funds, (3) as long as those conditions are
related to the purpose of the funding (ie the federal interest associated with the grant). (4) However, other constitutional provisions may provide an
independent bar and (5) the conditions cannot amount to coercion of the states. In Sabri, under the necessary and proper clause, Congress has the
power to ensure appropriations are actually spent for the general welfare. They may attach a provisions rationally related to carrying out its spending
powers for the promotion of the general welfare. There is not a requirement to show a jurisdictional hook and money is fungible.
The 14th Am guarantees due process and equal protection to all citizens of the US. Congress may only regulate the discriminatory conduct of state
officials not private actors. Morrison. In Katzenbach v. Morgan, the court applied a broad approach to the 14 th Am. Congress may pass legislation to
enforce the equal protection clause of the 14 th Am even when that legislation conflicts with state law. Congress has the power under §5 to expand
rights, as long as they don’t dilute them. In order to determine the constitutionality of legislation, the Katzenbach test requires that the enactment be to
enforce a provision of the equal protection clause, that it was plainly adapted to that end, and it is consistent with the letter and spirit of the
constitution. SCOTUS, in City of Boerne v. Flores, applied a more narrow approach, holding that §5 of the 14 th Am provides Congress with only
remedial power and when upholding a Constitutional right, Congress may only enforce legislation that utilizes means proportional to achieving that
legislative purpose. Any law Congress passes must be congruent and proportional with the problem. Under Shelby County v. Holder, a federal law that
departs from the fundamental principles of federalism must be justified by current needs.
Sovereign Immunity The 11th Am establishes the concept of sovereign immunity, meaning states cannot be sued by citizens of their state or others.
In order to get around this, those seeking recourse can sue officials, look for waiver or consent by the state, or look for specific Congressional
authorization under §5 of the 14 th Am. According to Fitzpatrick v. Bitzer, Congress can pass legislation authorizing private individuals to bring suit
against states because the very purpose of the 14 th Am is to limit state authority. In Seminole Tribe v. Florida, SCOTUS held that Congress cannot
abrogate states’ sovereign immunity unless through an exercise of power derived from §5 of the 14 th Am. In order to determine if the abrogation is
Constitutional, the court must determine if (1) Congress unequivocally expressed an intent to abrogate the immunity And (2) If Congress acted
pursuant to a valid exercise of powers. The legislation must attempt to remedy a pattern of widespread discrimination by the states against a protected
class of citizens or a protected right. Florida Prepaid (patent infringement, no pattern), Kimel v. Florida Bd of Regents (ADEA- age not protected
class), Board of Trustees v. Garrett(disabled not protected), Nevada Dept of HR v. Hibbs(gender is protected), Tennessee v. Lane(access to judicial
system is protected), US v. Georgia(8th Am issues trump SI)
Preemption Because federal law is supreme over state law, sometimes a state law will be preempted by the federal law. Preemption may be express, ie
where Congress has the authority to legislate and makes the federal law exclusive in the field within the legislation itself. Preemption can also be
implied, either through field or conflict. In field preemption, the federal regulation is so pervasive that there is no room for state supplement. An
example of this would be immigration. In conflict preemption, if a federal and state law are mutually exclusive such that a person could not comply
with both, the state law is deemed preempted. It is important to look to the intent of the federal regulation. According to Pacific Gas and Electric, a
federal law may preempt a state or local law, even if the laws are not mutually exclusive, if the state law is deemed to impede the achievement of a
federal objective.
Dormant Commerce State and local laws are Unconstitutional if they place an undue burden on interstate commerce. The Dormant Commerce Clause
places substantive limits on what state and local governments can do. In HP Hood and Sons, SCOTUS held that a state cannot promote its own
advantages by burdening interstate commerce. The judiciary has the power to invalidate state and local laws that place an undue burden on interstate
commerce. In City of Philadelphia v. NJ, SCOTUS established the current test for determining the constitutionality of state laws affecting interstate
commerce. If the law is discriminatory against out of staters, on its face, purposely, or in effect, then there is a strong presumption against the state law
and the law will only be upheld if it is necessary to achieve an important purpose. If the law is not discriminatory against out of staters, the law is
presumptively valid and the state need only provide a demonstration that the benefits of the law outweigh the burdens on commerce. SCOTUS has
held that state or local laws are discriminatory if: (1) the effect of the law is to exclude virtually all out of staters from a particular state market, (2) the
law imposes costs on out of staters that instaters don’t have to bear, or (3) the law is motivated by a protectionist purpose, helping instaters at the
expense of out of staters. There are two exceptions to the Dormant Commerce Clause. The first is when there is Congressional approval of the state
law. The state law may be discriminatory but allowed as long as it doesn’t violate a Constitutional provision. The other exception is when the state is a
market participant. This exception allows states to favor their own citizens in receiving benefits from government programs or in dealing with
government owned businesses. Applies to state owned businesses and government programs.
Hunt v. Washington State Apple (NC reg only USDA grade discrim), Exon v. Gov of Maryland (oil service stations not discrimination because affected
all), C&A Carbone(facially neutral but discriminatory because allowed only favored processor to process), West Lynn Creamery(tax on milk from out
of staters discrim), Minnesota v. Clover Leaf(banning sale of milk in plastic containers- not discrim and enacted for substantial reason… benefit
(environmental protection) outweighed burden)
P&I Under Article IV §2, the privileges and immunities clause only applies to citizens and is limited to discrimination against out of staters. The
clause applies when a state discriminates against out of staters with regard to Constitutional rights or important economic activities. There is a two part
analysis in determining whether states are in violation of the privileges and immunities clause (1) Has the state discriminated against out of staters with
regard to privileges and immunities that it affords its own citizens? And (2) if there is discrimination, is there a sufficient justification for it? The
discrimination will only be allowed if (1) there is a substantial rx for the difference in the treatment and (2) the discrimination against out of staters
bears a substantial relationship to the state’s objective and less restrictive means are not available. According to Toomer v. Witsell, out of staters must
have the same ability to pursue a common calling. In defending the discrimination, the state should be able to show that out of staters are a peculiar
source of evil at which the statute is aimed. This test is highly rigorous. United Bldg and Const Trades Council(P&I applies to municipal
ordinances),Lester Baldwin v. Fish and Game Comm of MT (recreational hunting is not important enough), Supreme Ct of NH v. Piper(bar admission,
rxs were not good enough to trump discrim.)
Congressional limits on the judiciary. Although SCOTUS appellate jurisdiction is derived from the Exceptions and Regulations Clause of Article III
Cl 2, it is conferred subject to whatever exceptions and regulations Congress chooses to make. Congress may restrict the appellate jurisdiction of
SCOTUS, even after that jurisdiction has been given. Ex Parte McCardle (changed law while case was pending, removing jurisdiction) Congress
cannot impair or direct the exclusive powers of the other branches (ie directing the outcome of a case or limiting the effect of a presidential pardon).
US v. Klein (new law saying Presidential pardon not good enough for proof of non cooperation during pending case, went too far)