CONSTITUTIONAL LAW I

Spring 2023
Professor Jodi Short (she/her)

Office: McAllister 200, Room 356

Phone: 415.703.8205
E-mail: [email protected]
Office Hours: Tuesdays 4:00-6:00 PM (or by appointment)

Course Description

Constitutional Law I introduces and examines the structural provisions of the Constitution of the United
States. The course focuses particularly on the provisions of the original Constitution, while later courses
in Constitutional Law examine the rights-granting provisions of the Constitution, including the Bill of Rights
and the Fourteenth Amendment. Topics covered in this course include judicial review and limits on
judicial power, federalism and the powers of Congress, the dormant commerce clause and other
constitutional limits on states’ ability to regulate, the powers of the President, and the separation of
powers among the federal branches.

Materials

The text for this course is Constitutional Law, Sixth Edition by Erwin Chemerinsky. Additional course
materials will be posted to Canvas, as indicated on the syllabus and in class.

Class Cancellations and Adjustments

Please note the following adjustments to the usual class schedule due to scheduling conflicts with travel
to academic conferences.

• Friday, March 3: Class will be held virtually via Zoom (link to be provided on Canvas)
• Friday, March 24: CLASS CANCELLED
• This 90-minute class will be made up by adding 30-minute extensions to three classes. The
following class sessions will meet from 10:50 AM-1:00 PM (with a 10-minute break):
o Friday, February 10
o Friday, February 17
o Friday, April 7

Seating/Attendance

Please use SeatGen to select your seat and save it on the seating chart. Attendance is essential to a
successful individual and collective classroom experience. It is also mandatory under ABA accreditation
standards. I understand that you have many demands on your time and that your motivation and
emotional energy might sometimes flag, but I must enforce this requirement. More than one
unexcused absence will result in a deduction of 5 points from your final grade. To be excused for any
additional, necessary absences, please contact me before class to inform me that you cannot be
present. Persistent absence from class may result in reduction in your grade or disqualification from
eligibility to take the final exam. It will also cause me to worry about you. Please consult me or inform
the Dean of Students if a personal emergency arises that will cause you to miss multiple classes so that
we can make appropriate arrangements to keep you on track.

Class Preparation and Participation

I expect you to read and reflect on the assigned readings for each class and to come to class thoroughly
prepared to respond to questions and participate in class discussion and exercises. I encourage you to
volunteer your critiques or defenses of the arguments that appear in the readings or are raised in class.
I insist that you to listen actively and engage respectfully with your colleagues. I implore you to raise
any questions, concerns, or points of confusion you have about the course material or about comments
made in class (by me or others) so that we can identify and address gaps in your understanding.

In addition to the comments and questions you volunteer in class, I will call on individual students to
answer questions and play various roles in class exercises. Every student is “on-call” in every class. In
the normal course, it is not an option to “pass.” If you are struggling with the material, rest assured that
you are not the only one. I will work with you to answer the question. If you anticipate being
unprepared to participate in a specific class, please e-mail me before that class. You will be allowed 1
such advance pass this semester.

Recording Policy

Our campus-wide video policy requires that class recordings must come from the College or a faculty
member. Students may not create their own recordings. Recordings, transcripts, and class notes are
for the limited purpose of studying and may not be used for other purposes or disseminated outside the
class. Violation of these policies may result in a deduction of points in this class or disciplinary action.

Use of Electronic Devices During In-Person Class

The overarching goal of this course is to teach you how to identify, analyze, construct, and critique
constitutional arguments. Full engagement in class discussion, both as a contributor and as an active
listener, is critical to developing these legal reasoning skills. This can be especially difficult when electronic
devices mediate our interactions. To mitigate this barrier, I restrict the use of laptops and other electronic
devices during our in-person class meetings. You will be permitted to access your laptop or other
electronic device only when you are on call or participating in a problem exercise and you need to consult
your online casebook or notes in order to answer a specific question or participate in a problem exercise.
I recognize that such restrictions cut against the grain of our digital age. However, my long experience
teaching this class, informed by credible feedback from prior students (based on a combination of in-
person comments, anonymous surveys, and exam performance), has persuaded me that restricting the
use of electronic devices facilitates the kind of engagement that best promotes meaningful dialogue and
enhances student learning outcomes.

To alleviate note taking anxiety, I will post my slides and class notes to Canvas. I will also make all class
recordings available on Canvas should you need to revisit any of the material we cover in class. The
recordings will be available via Panopto to all registered students; no permission is necessary to access
them. Finally, and most importantly, I am always personally available to address any questions you have
about the material we cover. This is the single best way to address questions and clear up confusion.

Please contact the Dean of Students or the Disability Resources Program if you have an accommodation

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request concerning this policy.

Student Learning Outcomes

After completing this course, students will be able to:

• Read a constitutional decision to identify and articulate the constitutional holding and the reasons
justifying the holding.
• Explain prominent theories of constitutional interpretation and identify how they are used in
constitutional cases.
• Articulate persuasive constitutional arguments employing tools like precedent, history, and
Constitutional text, structure, and purpose.
• Articulate the political and doctrinal significance of the U.S. Supreme Court’s reasoning in
constitutional cases.
• Describe and apply the basic doctrine delineating the authority of the three constitutional
branches of the federal government (legislative, executive, and judicial).
• Describe and apply basic federalism doctrine defining the distribution of power between the
federal government and state governments, including the nature and source of limits on federal
and state power.
• Evaluate the relative merit of different Constitutional doctrines and critique the reasoning of the
Court’s Constitutional decisions using tools like precedent, history, and Constitutional text,
structure, and purpose.

Evaluation

Your grade in this course will be based on the following:

• Exam (80 points). A three-hour closed-book examination will be administered during a window
designated by the registrar. The exam will consist of both MBE-style multiple choice questions
(25%) and essay questions (75%).

• Class participation (10 points). Please note that I have a strong baseline expectation of class
participation for everyone. For purposes of the class participation score, I measure outstanding
class participation by the quality, relevance, and insightfulness of your contributions to the
ongoing discussion and not by their frequency. I reward students for taking intellectual risks in
class, including undertaking significant roles in problem exercises. Please note that I measure
poor class participation performance based on repeated absences from class or refusal to
participate when called on. Students are not penalized for giving “incorrect” answers in class if
they make an effort to participate.

• Adaptibar (10 points). I plan to assign 5 batches of Adaptibar questions over the course of the
semester, corresponding to the topics we cover in class. Each batch will contain 5-8 questions.
You will have 1 week from the time of posting to complete them. I will not grant extensions, so
please monitor deadlines carefully. You will be awarded 1 point for each Adaptibar assignment
you complete (regardless of your performance on the questions). You will be awarded 1
additional point per assignment if you answer 50% or more of the questions on that
assignment correctly. We will not have time this semester to cover Adaptibar questions in
class. I plan to schedule an “Adaptibar Review Session” during a free hour (TBD) mid-semester.

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 In the meantime, I would be happy to answer any questions you have about these assignments
in office hours or one-on-one meetings.

Mid-Semester Feedback

I do not give mid-semester assignments or a midterm in this class. I utilize problem exercises
throughout the semester to provide you with opportunities to practice applying the doctrinal concepts
you will be expected to apply on the exam. You will receive real-time feedback on your analysis when
we go over these problems in class. In addition, students will have the opportunity to submit a written
answer to one of the problem exercises and receive individualized feedback from me. Submitting a
problem answer for feedback is not a requirement of the class. I will provide additional details for those
who wish to do so.

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 SYLLABUS

CONSTITUTIONAL LAW I
Spring 2023

INTRODUCTION

1 Why Do We Have a Constitution? (Wednesday 1/11)

Casebook pp. xxxix-lv

• U.S. Constitution and Preamble
o Focus on Articles I-III, which will be the focus of this class. Read the rest
for context.
Canvas/Links
• Declaration of Independence
• Federalist No. 10
• Federalist No. 51
• Race and the American Constitution: A Struggle toward National Ideals
• “Indiginizing the Constitution”
• “A Second Constitutional Convention? Some Republicans Want to Force One”

Reflection Questions: Why have a Constitution? What functions does it serve? What
ideals does it embody? How well does the U.S. Constitution serve these functions or
advance these ideals? Is the Constitution pro-slavery or anti-slavery? What status do
indigenous nations and individuals have under the Constitution? Should the U.S.
convene a new Constitutional Convention? If there is a new Constitutional Convention,
what changes would you propose? Are there problems you would want the
Constitution to address that it does not currently (or adequately) address? What
problems were the founders trying to address when they drafted the Constitution?
What governance mechanisms did they adopt to address those problems? How well-
suited are those governance mechanisms to addressing the problems as the founders
saw them? How well-suited are those governance mechanisms to addressing the
problems you see as important today?

ART. III: FEDERAL JUDICIAL POWER

2 Theories of Constitutional Interpretation (Friday 1/13)

Canvas
• Constitutional Interpretation Primer
• "Ketanji Brown Jackson Uses Progressive Originalism to Defend the Voting
Rights Act"
• Joseph Fishkin and William E. Forbath, “How Progressives Can Take Back the
Constitution”
• Adrian Vermeule, “Beyond Originalism”
• Arizona State Legislature v. Arizona Independent Redistricting Commission

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 Reflection Questions: What is originalism? What is living constitutionalism? Can the
two be reconciled? How do politics shape interpretive theories? What are
constitutional principles, where do they come from, and how do they inform
constitutional interpretation? Do you agree with Fishkin and Forbath that the
Constitution embodies an anti-oligarchy principle that should guide constitutional
interpretation? Do you agree with Vermeule that the Constitution embodies natural
law principles that should guide constitutional interpretation? What interpretive
approaches do the justices use in Arizona State Legislature to discern the meaning of
the constitutional term “Legislature”? What constitutional principles do they invoke?
How do their interpretive choices influence the different outcomes reached by the
majority and the dissent?

3 Who Gets the Final Word on Constitutional Meaning? (Wednesday 1/18)

Casebook, pp. 1-9

• Marbury v. Madison
Canvas
• Letter from the Attorney General to Congress on Litigation Involving the
Defense of Marriage Act

Reflection Questions: Marbury establishes the principle of “judicial supremacy”—that

the Supreme Court is the ultimate arbiter of constitutional meaning. Do you agree that
the Constitution requires judicial supremacy? Do you think it is a good idea? Should
unelected federal court judges have the authority to strike down laws enacted by the
elected branches of government? What other AG Holder takes a “departmentalist”
view of constitutional interpretation—i.e. that each branch of the federal government
has co-equal authority to interpret the Constitution. What are the advantages and
drawbacks of decentralizing interpretive authority?

4 Limits on Federal Judicial Power: Standing (Friday 1/20)

Casebook pp. xlv, 44-45, 58-60

• US Constitution, Article III
• Standing
• City of LA v. Lyons
Canvas
• Lujan v. Defenders of Wildlife
• Friends of the Earth v. Laidlaw
• Spokeo v. Robins

Reflection Questions: What is the Constitutional basis for standing requirements?

What is the doctrinal test for determining if a plaintiff has standing to bring claims in
federal court? What are the elements of an “injury in fact”? How does “concreteness”
differ from “particularity” in the injury-in-fact inquiry? What is the purpose of standing
doctrine? Why restrict access to the courts in this way? Does the Constitution compel

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 this approach? Should standing requirements be broader or narrower than the Court
has construed them? What doctrinal arguments can you make that these cases (and the
standing cases below) should have come out differently?

5 Limits on Federal Judicial Power: Standing (Wednesday 1/25)

Casebook pp. 52-58, 64-65, 66

• Mass v. EPA (52-58)
• Linda R.S. v. Richard D. (65)
• Warth v. Seldin (65)
• [Omit Simon v. EKWRO]
• Duke Power v. Carolina Environmental Study Group (66)

Canvas
• California v. Texas
• In re Donald J. Trump
• CREW v. Trump
• East Bay Sanctuary Covenant

Reflection Questions: What are the tests for determining causation and redressability?
Why were plaintiffs able to demonstrate causation and redressability in cases like Duke
Power and CREW, but not in cases like Linda R.S., Warth, and In re Trump? Should states
receive “special solicitude” in the standing analysis? Why didn’t Texas receive “special
solicitude” in its challenge to the Affordable Care Act? How can organizations establish
standing based on their own injuries? How do organizations establish standing based on
their own injuries? How does this type of standing differ from “associational standing,”
which Defenders of Wildlife attempted to establish in Lujan?

6 Limits on Federal Judicial Power: Political Question Doctrine/Gerrymandering (Friday 1/27)

Casebook pp. 90-109

• Baker v. Carr
• Rucho v. Common Cause

Reflection Questions: What is the justification for the political question doctrine? Is it
constitutionally proper for the Court to decline to exercise jurisdiction over cases that
meet all other requirements making them “cases” or “controversies” under Art. III? Has
the Court identified appropriate factors for distinguishing justiciable legal questions
from non-justiciable “political” questions? What factors does the Court rely on to find
that political gerrymandering is a political question unsuitable for federal court
jurisdiction?

7 Limits on Federal Judicial Power: Political Question Doctrine (Wednesday 2/1)

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 Casebook pp. 109-118
• Powell v. McCormack
• Goldwater v. Carter
• Zivotofsky v. Clinton
• Nixon v. United States

Reflection Questions: What does it mean to say that a question is textually committed
to another branch? Why does the Court find textual commitment in Nixon but not in
Powell? Why does the Court hold that Zivotovsky does not present a political question?

ART. I: FEDERAL LEGISLATIVE POWER

8 Foundations of Federal Legislative Power (Friday 2/3)

Casebook pp. xxxix-xliii, 119-133

• US Constitution, Article I
• McCulloch v. Maryland

Reflection Questions: McCulloch is the foundational case addressing the relationship

between the federal government and the states. What is the precise question
presented to the Court in McCulloch? Before reaching this question, on what other
issues does the Court focus, and why? What is the source of Congressional power, and
why does this matter to the Court? What are the limits on Congressional power? What
role does the Necessary and Proper Clause play in defining the parameters of Congress’
power? What is the test for determining whether an act of Congress is necessary and
proper?

9 Commerce Clause: Early and Modern Periods (Wednesday 2/8)

Casebook pp. 155 (bottom)-175

• The Commerce Power
• Gibbons v. Ogden and Notes Cases
• NLRB v. Jones & Laughlin Steel Corp.
• United States v. Darby
• Wickard v. Filburn

Reflection Questions: How does C.J. Marshall define “commerce among the states” in
Gibbons? How do the cases from the 1890s-1937 depart from Marshall’s definition?
How does the Court define “commerce among the states” during this period? What
doctrinal mechanisms does the Court employ during this period to limit Congress’ ability
to regulate commerce? Why does the Court begin to change its approach in Jones &
Laughlin? How does the Court define “commerce among the states” during the modern
period? How does this definition differ from the Court’s definition in the early period?
How does the Court justify its change of course? Notice how each modern era case

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 excerpted in this unit expands the Commerce power beyond previous cases. In light of
these expansions, is there any meaningful limit on Congress’ ability to regulate
commerce in the modern era? Can you think of something Congress could not regulate
under modern era Commerce Clause doctrine?

10 Commerce Clause: Continued Modern Era Expansion and the Reestablishment of Commerce
Clause Limits + Alternative Sources of Congressional Authority (Friday 2/10)
Extended class: 10:50-1:00 PM (includes 30 minutes make-up time)
Casebook pp. 175-181, 187-199
• Heart of Atlanta Motel v. US
• Katzenbach v. McClung
• Hodel v. Indiana
• Perez v. US
• US v. Lopez
Optional Supplemental Reading:
• Casebook (pp. 532-535): The Civil Rights Cases
• Canvas: Heart of Atlanta Concurring Opinions (re: applicability of Section 5)

Reflection Questions: How do Heart of Atlanta and McClung further expand Congress’
authority under the Commerce Clause beyond previous modern-era cases? How does
Lopez change the “substantial effects” test to limit Congress’ Commerce power? The
majority in Lopez stress that the case does not overturn any modern era cases. Can you
reconcile Lopez with the modern era cases?

11 The Necessary & Proper Clause as an Alternative Source of Congressional Authority

(Wednesday 2/15)

Casebook pp. 199-204; 207-215

• US v. Morrison
• Gonzales v. Raich
Canvas
• US v. Comstock

Reflection Questions: Does the result in Morrison necessarily follow from the rule
announced in Lopez? Do Comstock and Raich undermine the limits on the Commerce
Clause established by Lopez, or can these cases be distinguished from Lopez? What is
the relationship between the Necessary and Proper Clause and the Commerce Clause?
In Raich, the majority argues in the alternative that the federal statutory prohibition on
individual possession of marijuana for medical use could be upheld as an exercise of
Congress’ Commerce power or its Necessary and Proper power. How do these two
arguments differ? Could the involuntary commitment statute in Comstock be upheld as
an exercise of the Commerce power? What is J. Scalia’s objection to upholding this
statute as a proper exercise of Necessary and Proper authority? Why does J. Scalia
concur in Raich and dissent in Comstock?

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12 Return of the 10th Amendment: Anti-Commandeering (Friday 2/17)
Extended class: 10:50-1:00 PM (includes 30 minutes make-up time)
Casebook pp. 181-187, 216-240
• Garcia v. San Antonio Metropolitan Transit Authority
• New York v. United States
• Printz v. US
• Reno v. Condon
• Murphy v. NCAA

Reflection Questions: How does the 10th Amendment limit Congress’ power today?
How is this different from interpretations of 10th Amendment limits in prior eras? What
is commandeering and why is it constitutionally problematic? Should the Court revive
older understandings of the 10th Amendment that prohibit federal regulation in areas of
traditional state police power?

13 Taxing and Spending Power (Wednesday 2/22)

Casebook pp. 240-248

• US v. Butler
• Steward v. Davis
• Sabri v. US
• South Dakota v. Dole

Reflection Questions: Under what circumstances can Congress tell state governments
what to do? For what purposes may Congress tax and spend? What are the competing
views of the scope of this power? What are the competing arguments for these
approaches? How does the scope of Congress’ taxing and spending power differ from
the scope of its power to regulate interstate commerce? What are the limits on
Congress’ taxing and spending power?

14 Congressional Powers Summary: The Affordable Care Act (Friday 2/24)

Casebook pp. 129-150

• National Federation of Independent Business v. Sebelius
Canvas
• Problem TBD

Reflection Questions: Did the Court faithfully apply its commerce clause, necessary &
proper, and tax & spend precedents in this case? Does NFIB alter Constitutional
doctrine in any of these areas? If so, how? Using the pre-NFIB precedents we have
read, what is the argument that the Court should have upheld the ACA on Commerce
Clause grounds?

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 ART. II: EXECUTIVE POWER

15 Foundational Doctrinal Framework (Wednesday 3/1)

Casebook pp. xliii-xlv, 275-284

• US Constitution, Article II
• Youngstown
Canvas
• “Primer on Unitary Executive Theory”
• “Constitutional Myth #3”

Reflection Questions: How does presidential power differ from Congressional power?
What is “inherent” presidential power? What is the scope of the President’s “inherent”
power? What are the different approaches to this question articulated in the
Youngstown opinions? In what way does the scope of the President’s power depend on
Congress’ exercise of power?

16 Constitutional Problems of the Administrative State: Congressional Delegation of Authority

To the Executive Branch (Friday 3/3)
VIRTUAL CLASS: Access through Zoom link on Canvas
Casebook pp. 292-304
• A.L.A. Schechter Poultry v. US
• Panama Refining v. Ryan
• Gundy v. US

Reflection Questions: How much power, and what type of power, can Congress
delegate to the executive? Is the implementation of statutes through rulemaking by
executive branch agencies “legislating”? What does it mean to say that a statutory
delegation contains an “intelligible principle”? Is this an appropriate test to determine
whether a statute impermissibly delegates legislative power to the executive? What
test would J. Gorsuch apply to determine the constitutionality of such delegations?
Which prior delegations held to contain “intelligible principles” would be permissible
under J. Gorsuch’s test and which would be struck down? What measures can be
constitutionally taken to check Congress’ propensity to enact broad delegations of
authority to the executive? How much power (and what type of power) can Congress
preserve for itself to police the implementation of delegated authority?

17 Presidential Control of Administrative Agencies: Appointment Power (Wednesday 3/15)

Casebook pp. 305-315 [omit J. Scalia dissent], 317-319

• INS v. Chadha
• Checking Administrative Power

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 • Morrison v. Olson
• Notes [below the line p. 317-top of 319)
Canvas
• U.S. v. Arthrex

Reflection Questions: How much power should the President have over officials in the
executive branch? How much power should Congress have over the structure of offices
it creates in federal statutes? What are the procedures for appointing officials in the
executive branch? What is the difference between principal and inferior officers and
why does it matter? How does the Court distinguish principal and inferior officers in
Morrison? How does its approach change in Arthrex?

18 Presidential Control of Administrative Agencies: Removal Power (Friday 3/17)

Casebook pp. 328-339

• Myers v. US
• Humphrey’s Executor v. US
• Weiner v. US
• Bowsher v. Synar
• Morrison v. Olson (redux)
• Free Enterprise Fund v. PCAOB (redux)
Canvas
• Morrison v. Olson (J. Scalia Dissent)
• Seila Law v. Consumer Financial Protection Bureau

Reflection Questions: The Constitution does not explicitly give the President removal
power. What, then, is the justification for lodging the removal power in the President?
How does J. Scalia justify his position that the President has exclusive and unfettered
power to remove executive branch officials in his Morrison dissent? To what extent may
Congress limit the President’s power to remove executive branch officials? Why does it
matter how removal authority is allocated? Myers and Humphrey’s Executor reach
seemingly opposite results. How can the two cases be reconciled? How does Morrison
v. Olson alter the removal doctrine established in Myers and Humphrey’s Executor? Free
Enterprise Fund and Seila Law endorse a formalistic approach to removal doctrine. How
does the Court reconcile these cases with Humphrey’s Executor? Do they overrule
Humphrey’s Executor? Should they?

19 Presidential Power: Foreign Policy and War Powers (Wednesday 3/22)

Casebook pp. 339-358

• US v. Curtiss-Wright
• Zivotofsky v. Kerry
• Dames & Moore v. Regan
• War Powers Resolution

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 Reflection Questions: How does the Constitution divide authority over foreign policy
between Congress and the President? How does the Court’s approach to Presidential
power differ between matters of foreign and domestic policy? Do you think this
distinction is appropriate? How does the constitutional text allocate treaty-making and
war-making power between Congress and the President? Should the President be
permitted to enter into international agreements that do not conform to the
constitutional treaty-making process? Is Congress’ attempt to articulate the allocation
of war-making powers in the War Powers Resolution constitutional?

***NO CLASS FRIDAY, MARCH 24 [cancelled]***

20 Presidential Power: Immigration (Wednesday 3/29)

Casebook pp. 395-406

• Trump v. Hawaii

Reflection Questions: What combination of factors led the Court to find that the
President has exceptionally broad authority to regulate entry into the U.S.? How does
the majority utilize general principles of presidential foreign affairs power to support its
decision to adopt minimal rational basis review to evaluate whether the travel ban
violates the Establishment Clause? Does the majority consider discriminatory
statements made by the President relevant to its analysis? Is J. Sotomayor correct that
the reasoning of this case would support sweeping exclusionary policies directed toward
disfavored racial or religious groups that the President believes present a national
security threat to the U.S.?

***NO CLASS FRIDAY, MARCH 31 [Cesar Chavez Day]***

21 Inherent Presidential Power and Its Limits: Executive Privilege and Presidential Immunity
(Wednesday 4/5)

Casebook pp. 286-290, 406-417

• U.S. v. Nixon
• Cheney v. U.S. Dist. Ct. for the Dist. of Columbia
• Nixon v. Fitzgerald
• Clinton v. Jones
Canvas
• Trump v. Mazars
• Trump v. Vance

Reflection Questions: What is the difference between executive privilege and

presidential immunity? How does the Court balance the President’s inherent power to
assert executive privilege with the powers of the judicial branch? Would the balance be
different if Congress, rather than the judiciary, seeks information over which the
President claims privilege? To what extent does the judicial process serve as a check on
the President’s actions? Under what conditions can a President be held legally
accountable in a court of law for illegal actions? What limits has the Court placed on the

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 President’s ability to assert immunity from judicial process? Are these limits
appropriate?

LIMITS ON STATE REGULATORY AND TAXING POWER

22 Preemption (Friday 4/7)

Extended class: 10:50-1:00 PM (includes 30 minutes make-up time)
Casebook pp. 419-444
• Lorillard Tobacco Co. v. Reilly
• Express preemption notes cases
• Florida Lime & Avocado Growers v. Paul
• PG & E v. State Energy Resources Conservation & Development Commission
• FDA Approval Preemption Cases
• Arizona v. U.S.
Canvas
• Nash v. Florida

Reflection Questions: What is the relationship of preemption to federalism? How does

preemption doctrine limit the authority of state governments? What are the different
kinds of preemption, and what are the tests to determine if a state law is preempted?
What is the difference between “actual conflict” preemption and preemption based on
obstacles to the achievement of federal objectives? How do statutory purposes inform
the obstacle preemption analysis?

23 Dormant Commerce Clause (Wednesday 4/12)

Casebook pp. 444-464

• H.P. Hood & Sons v. DuMond
• Tennessee Wine and Spirits
• Cooley v. Board of Wardens
• Note: Gibbons, Barnwell, Southern Pacific
• City of Philadelphia
• Note: Reciprocity requirements
• Hunt v. Washington State Apple Advertising Commission

Reflection Questions: What is the dormant commerce clause? How is it different from
the Commerce Clause restrictions on Congress’ power? What are the arguments for
and against recognizing a dormant commerce clause? How does the Court determine if
a law is discriminatory? What is the doctrinal significance of a finding of discrimination?

24 Dormant Commerce Clause (Friday 4/14)

Casebook pp. 464-480

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 • Exxon v. Governor of Maryland
• C&A Carbone v. Town of Clarkson
• United Haulers v. Oneida-Herkhimer
• West Lynn Creamery v. Healy
• Minnesota v. Clover Leaf Creamery
• Dean Milk Co. v. City of Madison, WI
• Maine v. Taylor
• Pike v. Bruce Church, Inc.
• Bibb v. Navajo Freight Lines
• Edgar v. MITE
• Brown-Forman Distillers
• Healy v. The Beer Institute

Reflection Questions: What is the test for determining if a state law violates the
dormant commerce clause? What are the different types of discrimination, and how do
you determine if a law discriminates against out-of-staters? What is the dormant
commerce clause doctrinal analysis if the law is discriminatory? What is the doctrinal
analysis if the law is not discriminatory? How do they differ from one another?

25 Dormant Commerce Clause Exceptions (Wednesday 4/19)

Casebook pp. 480-489

• Western & Southern Life Insurance v. State Board of Equalization
• Hughes v. Alexandria Scrap Corp.
• Reeves v. William Stake
• White v. Massachusetts
• South-Central Timber v. Commissioner, Dept. of Natural Resources, AK
Canvas
• National Pork Producers v. Ross (9th Circuit Opinion)

Reflection Questions: What are the exceptions to the dormant commerce clause, and
why are these categories of activity excepted? The U.S. Supreme Court granted
certiorari in National Pork Producers and heard arguments in October 2022. Should the
Court overrule the 9th Circuit? What are the arguments for and against the 9th Circuit’s
interpretation and application of the Dormant Commerce Clause, and how is each side
supported by DCC case law, principles, and policy?

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