Download Constitutional Law I Spring 2003

Constitutional Law I – Professor Clark
Spring 2003
Stephanie Deckter
INTRODUCTION
From Confederation to Union
1776 Colonies  independent
Declaration of Independence = “free & independent states”
1781 States created Articles of Confederation
 Charter for states to work together
 Similar to a treaty
 Provided for 1 branch of government
o “Congress” or congregation of states
o 1 vote/state
o No legislative power
o Only 1 court of admiralty
“Congress” not working
 Lots of power on paper
o E.g. to settle state boundary disputes over the western territories, collect taxes for the federal
government, etc.
o States were required to carry out the dictates of congress
 Congress had no power to make them do it
 Some states would comply and others would not  unfairness & complaints
 Eventually none of the states regarded congress with any authority
1787 Constitutional Convention in Philadelphia
 Purpose: Revise & amend Articles of Confederation
 Articles = perpetual  big problem to overhaul them
 Art. VII of new Constitution
o 9/13 of states required to ratify NEW constitution & leave the Articles
o The other 4 bought in anyway
1789 Constitution ratified/adopted by United States of America
New Constitution
 More robust – Executive branch = method of enforcement of federal laws over people directly
 Federalist 15: Easier to force ME to pay my taxes (sue me, toss me in jail…) than to ask NY to collect
taxes from ME and hand it over to the F government
 Major concession of sovereignty by states over their land/people
 State CANNOT obstruct F government’s functioning
 Three branches + checks & balances  innovation
 Why?
o Founders very afraid of tyranny/abuse of power (particularly by legislative branch)
o Already beat Great Britain
o SOP = difficult to abuse powers & easy to protect freedom
 Hidden Checks of State on Federal government
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3 Major parts of Constitution adopted at different times
1. Constitution 1789
Created basic division of power between F/S and between branches of F
2. Bill of Rights 1791
Many important things that just did not make it into main text
3. Amendments 13-15 (after Civil War)
Civil War changed allocation of power between F/S governments
Did not change enumerated powers of Federal government (just created new rules under
the existing powers)
Question of whether states could leave the union now answered (NO)
Congressional power to enforce
13: Prohibition of slavery
14: People are now citizens of both U.S. and a state; No state can deny due process, equal
protection, privileges & immunities (civil rights), etc.
15: Voting rights for all races  Severely limited (southern) state power
Problem of integration & interpretation
Usually most recent amendments govern
Constitution CAN be amended by arduous process
Except – Equal Representation in Senate
ONLY section that CANNOT be amended without unanimous vote of the states
Federalism
Federalism = Division and allocation of powers between Federal & State government
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States were not abolished in 1789 – Constitution presumes existence of states
Very unique set up of two governments operating over the same people and land at the same time
Then divide each government into 3 branches
The lines dividing branches & levels of government are VERY blurry
Federal Government
Legislative | Executive | Judicial
Legislative | Executive | Judicial
State Government
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States retained all powers not relinquished to Federal government
If conflict between state & federal law  federal law wins!
o Supremacy Clause – Art. VI, Clause 2
o Judges of each state bound by the Constitution & laws (made in pursuance thereof) notwithstanding
contrary state law
o See below
FEDERAL = Enumerated Powers  mostly external
Art. I, sec 8 – Congress’ Powers
 Tax uniformly
 Pay off U.S. debts
 Borrow money on credit of U.S.
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Regulate commerce among the several states
Create uniform rules of naturalization and bankruptcy
Coin money & provide for punishment of counterfeiting
Establish P.O. and roads
Patents/Copyrights
Create inferior courts
Declare war and Grant Letters of Marque & Reprisal
o Declaration of war  Congress can authorize private citizens to capture ships of the enemy country,
bring them to admiralty court and get ½ value of the enemy ship as a prize of war
Only 2 years to raise $ for & support army (term of House member)
o Theory = must review army status every time House changes over & therefore NO STANDING
ARMY – not quite anymore
Create Navy
Make Rules for government & regulation of the land and naval forces
Provide for calling forth Militia
Provide for maintaining Militia
10 square miles ceded by MD & VA to create capitol
o Separate area – every state wanted capitol in their borders
o Congress has complete legislative authority over DC
o No state control – same at other “exclusive F enclaves” throughout country
Power to make all laws “Necessary & Proper” to getting the job done
STATES = All powers (including general police power) not granted to F government except for some
proscriptions  mostly internal, i.e. lives, liberty, & property of people
Art. I, sec 10 – Complete Proscriptions on state power
 Treaties, alliances or confederation with other countries
o Main purpose of Constitution = link states to create 1 foreign policy
 Grant letters of Marque & Reprisal
 Coin money
 Borrow on credit
 Make anything but money of U.S. legal in payment of debts
 Pass any Bill of Attainder, ex post facto Law, or Law impairing contracts
 Grant title of nobility
Art. I, sec 10 – Conditional grants of power to State (need Congressional approval)
 Tax imports/exports (except when necessary for executing inspection laws)
o Any duties  Federal government
 Lay any duty of Tonnage
 Keep troops or ships of war in time of peace
 Enter in to any agreement/compact with another state, foreign power
 Engage in war unless
in imminent danger requiring no delay
Hidden Checks between State & Federal Governments – Political Safeguards of Federalism:
 Can argue S.Ct. should defer to Congressional prerogatives – states can take care of themselves
 If states have some power to control F government, less likely for abuse of power
 States retain powers
o Election of senators by State legislatures (direct election by 17th Amdt.)
o Each state entitled to equal representation in Senate (big deal for smaller states)
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o State’s selection of members of electoral college
Federalism: State Law vs. Federal Law
Art. VI, cl. 2 = Supremacy Clause: “This constitution, and the laws of the United States, which small be made
in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States,
shall be the supreme law of the land...”
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Supremacy Clause tells Judges how to resolve conflicts between Federal and state law.
Constitution sets out detailed procedures for adoption of each source of law that may be supreme
o Constitution
 Art. VII = “The ratification of the conventions of nine states, shall be sufficient for the
establishment of this Constitution...”
 Art. V = 2/3 of the Senate & 2/3 of the House (OR 2/3 of the state legislatures, by
application) can propose Constitutional amendments  if ratified by ¾ of the states becomes
law
 Equal suffrage in the Senate cannot be amended without consent of each state affected
o Laws
 Art. I, § 7 = Each bill must pass both the House & Senate and be signed by the President
 If President vetoes  2/3 of both houses can override
o Treaties
 Art. II, § 8., cl. 2 = The President “shall have the power, by and with the advice and consent
of the Senate, to make treaties, provided two thirds of the Senators present concur...”
Each relies on actors subject to original political safeguards to federalism
17th Amendment, Senate not as responsive to state will as at framing, but still only actor required for
creation of any source of law that may trump state law
If a source of law passes the required procedure
o If nonjusticiable  political safeguards are the only help to the states
o If reviewable  S.Ct. gets to ask if the law is Constitutional & only if answer = yes does it trump
state law
Separation of Powers
Constitution created 3 branches of Federal Government
Article
Embodiment
Check
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Legislative
Art. I
Congress
(House & Senate)
President has to sign
bills that have passed
both House & Senate
Executive
Art. II
President
Judicial
Art. III
Supreme & Inferior Courts
Senate must approve
treaties and other
appointments by Pres.
Congress can create
Each branch has a separate function/power AND each power is vested in a separate branch
Prohibition of commingling powers – but checks & balances do exist
For Example:
Congress & President
 President must sign or return bill approved by both houses of Congress within 10 days (if he vetoes,
he must return the bill with his objections)
 2/3 vote of both houses can override Presidential veto
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President negotiates treaties with foreign countries, but 2/3 Senate must agree
o Why no House?
o Treaties = sovereignty-limiting measures
o Need entire, equal representation of states to agree
o Very secret – easier for 100 people to keep their mouths shut than 435
 President has discretion of how/when to enforce laws passed by Congress
 President can decide how/when to use armed forces AFTER Congress has declared war
Court & Congress
 Courts can/do find laws unconstitutional after they have been passed
 Congress has the power to create/destroy inferior courts
 Congress can impeach Judges and 2/3 Senate to convict  no real tries since Jefferson
 Congress can amend Constitution to override S.Ct. decision
 Senate must approve Presidential nomination of Justices
Courts & President
 President appoints Justices
 President can pardon anyone convicted of a federal offense
 Judiciary depends on President to enforce its decisions as law
Why SOP in general?
 Slows down the government and makes it harder to get things done no rash decisions
 Prevents tyranny – too hard for one branch to get and abuse power
 Preserves individual liberty
Why Separate Branches?
 No branches is bad for freedom, good for tyranny
 No one person/group/branch gets too much power or the ability to abuse it
 Many chances to defeat an unconstitutional law – lots of freedom-protection
 Structure of separate branches implies SOP
Why Checks & Balances?
 Avoid too much power in one branch
 Avoid encroachment by one branch on another’s powers
 Avoid interference between branches
Incompatibility Clause – Art. II, § 6, cl. 2 = Prohibition on being in the legislative and either judicial or
executive branches at the same time – OK to be in the judicial and executive branch concurrently
E.g. Secretary of State & Justice Marshall
Congress and the Legislative Power
Article I
Legislative Power = lawmaking power
 Laws are rules of conduct that regulate society
 Constitution implies rule made by a process other than that of Art. I, sec 7 is NOT a law
 Very General Power
 Ex. A is BAD & is now outlawed
To pass a good law:
 Bill must pass in both House & Senate (majority)
 Must be signed by President OR 2/3 House/Senate must override Veto
 Supreme Court must find it constitutional (later, if challenged)
Very inefficient
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Few bills get passed = slow on purpose
 gridlock & prevents government from being too reactionary
Fewer are upheld by Supreme Court
 the bills that DO make it are REALLY good laws
Madison: legislative branch = “impetuous vortex”
 bicameralism – makes Congress weaker
 veto – prevents executive power being drawn into the vortex
 Supreme Court – prevents Constitution being drawn into vortex
Requirements/Set-Up:
Age Requirement
Total No.
Must reside in
Citizenship Requirement
Original # terms allowed
Length of Term
Original election method
Susceptibility to
Public/Political Pressure
House
25 years old
Today 435
District
7 years in U.S.
Unlimited
2 years
Public Election
Most – short terms
very cognizant of
public opinion
Senate
30 years old
100
State
9 years in U.S.
Unlimited
6 years
By States – Now by
Public Election
Least – long terms 
less accountable (only
Jud. less susceptible)
Size of the house/senate (& even executive branch) is analogous to age/experience level
 Why still 30 today? Why not interpret it as 37 to compensate for longer life expectancy?
 Framers could have said ½ life expectancy, but they did not
 Why have any restrictions?
The President and the Executive Power
Article II
Executive Power = Enforcement & execution of the law
 Enforcement of law over general public
 Fairly General Power
 Ex. Is anyone doing A? Brings X to court for doing A…
Age Requirement
Total No.
Must reside in
Citizenship Requirement
Original # terms allowed
Length of Term
President
35 years old
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U.S.
Natural born
Unlimited – Now 2
4 years
Must be natural citizen – don’t want ANY conflicting loyalties
President = 4 years per term  compromise between House & Senate
Enough time to get stuff done, but not so long that he loses accountability
Changed to only 2 terms AFTER FDR was elected to 4th term (died in the first year)
Don’t want despot situation
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Election
 Today 535 Electors
 Electoral college – lessen popular whim (but today public really chooses, so reasons moot)
 Electors per state = # Representatives + # Senators
 Electors appointed in a manner specified by the state legislature
o Today: Popular vote for the electors
o Electors promise to vote for a candidate
o 48 States: Candidate (really electors who promise to vote for the candidate) with most popular
votes gets all electoral votes
 Why? Want to maximize your state’s influence in the election
o 2 States (Maine & Nebraska): Proportional electoral votes  seems better representation of
public opinion
 Electors vote for President  seal votes  Senate
 Senate counts votes
 Candidates with most votes & majority  President
 Runner-up = VP
In past, Pres & VP were main opponents  didn’t work out too well
12th Amendment = VP & P on same ballot – win/lose together
Electoral College creates incentives for candidates to visit small states – easier to get all electoral votes
 If abolished, nobody would visit Rhode Island or Delaware
 Leads to less & less true representation
 Want every state to matter & have candidate seriously know/consider issues of each state
o In the age of 24 hour CNN is this really true?
VP = “a spare”
 President of Senate
 Only votes on Senatorial matters if there is a tie
 Could preside over Senate, but usually does not
 Originally VP = part of Legislative Branch
 Today  Executive Officer with no real function – just advisor with political power
Presidential Powers
 Take care that laws are faithfully executed
 Send & receive ambassadors
o Really power to recognize and establish relations with legitimate foreign governments
o At President’s discretion who to recognize
 Negotiates & makes treaties with advice & consent of 2/3 Senate
 Prosecutorial Discretion
o Decide who/how/when to prosecute federal law violators
 Pardon Power
o Absolute power to pardon federal criminal offenders
o Check on Judiciary
 Commander-In-Chief Power
o Head of Army, Navy, & Air Force
o No one can override orders
o Check on Congress’ power to declare war
 Too inefficient for large organization to run war-effort
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 Secrecy issues
o Responsive to both people & government  No military takeovers
State of the Union Address
o Suggest legislation
o Call on executive department heads for advise (can probably do this anyway)
Appointment of executive officers
o Senate must confirm
o Senate can vest sole appointment power in President (or Courts) of inferior officers
o Fill vacancies occurring during Recess of Senate
Can convene one or both Houses in extraordinary circumstances
o Can also adjourn them if they cannot agree
Federal Courts and the Judicial Power
Article III
Judicial Power = Decide cases/controversies under the law
 Enforcement of law in particular cases
 Specific Power
 Ex. Decides if X really has done A
Constitution creates Supreme Court and such inferior courts as Congress may ordain & establish
 District Courts & Circuit Courts of Appeal – always around
 1789 DC had permanent Judges
 Circuit courts borrowed Judges from S.Ct. and DCs to sit  Justices would “ride” the circuits
 Broke down  not good for Justice to decide case at Circuit and then re-hear appeal to S.Ct.
o Now all courts have their own Judges
DC = Trial Court
Circuit Court = Appellate Court
S.Ct. = Uber-appellate Court
1980 = Discretionary Jurisdiction
~7000 petitions for writ of certiorari per year – only ~100 granted
Need 4 Justices to agree to take the case
If not, cert. denied
Art. III, sec 2 = Original jurisdiction of Federal Courts when case involves
 Ambassadors
 State as a party
 “Arising Under” laws of the United States or treaties  Federal Question Jurisdiction
 Admiralty/Maritime
 U.S. is a party
 Controversies between two states
 Between Citizens of different states  Diversity Jurisdiction
 Between Citizens of a state and a foreign country
 Lands under grants of different states
Art. III, sec 2 = S.Ct. has original jurisdiction when case involves
 Ambassadors
 State as a party
Otherwise, S.Ct. has appellate jurisdiction
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Constitutional provision suggested at Convention
 Veto power split between S.Ct. and President
 Puts Court in odd spot if they veto a bill, then Congress overrules, then comes to Court later on
Constitutionality challenge  undermines necessary impartiality of Judges
Instead… insulate F Judges from politics
 Why?
 Fortitude and independence required to pass, unbiased, on Constitutionality of Laws
 Hard to pass a law  Congress pissed if S.Ct. invalidates
 Hamilton = Least Dangerous Branch
o Negative power – can only decide Constitutionality if case/controversy presented + only
deciding one case despite broad precedential value
 But really? Power to interpret laws  power to make new law
Justices = life tenure during “good behavior” (really just doing your job) & salary protection
No public/political influence over their decisions
Is Supreme Court only body that rules on constitutionality of laws?
 It seems so…
 President can veto if he thinks law is unconstitutional, no different from any other veto –can still be
overridden
 Really: All federal officers take oath to uphold Constitution
 Minds differ on what falls within the scope of the Constitution
 President could sign bill  send Solicitor General to Supreme Court to argue its C.
Check against Judicial abuse:
 Art. III Judges only serve under “good behavior”
 Justices can be impeached… 2/3 Senate must convict (can they appeal to themselves?)
 Override by amending constitution
JUDICIAL POWER
Judicial Review
Judicial Review = Power of courts to review Constitutionality of statutes and NOT apply statutes that are not
Constitutional
Marbury v. Madison = 1803 – Marbury was a named DC justice of the peace at the very end of Adams’
presidency. Jefferson, the new President, chose to disregard the appointments because formal commissions had
not been delivered before the end of Adams’ term. Marbury sued seeking a writ of mandamus (order directing
that an official perform an act) that would order Madison (Jefferson’s Secretary of State) to deliver the
commissions. Marbury is denied the writ for several reasons. CJ Marshall finds that S.Ct. has no original
jurisdiction for writs of mandamus. However, the Judiciary Act of 1789 authorized the S.Ct. to grant a writ of
mandamus against an officer of the U.S. This presented a conflict between the Constitution and an Act of
Congress. Marshall discussed that there were two choices: (1) the Constitution is supreme OR (2) the
Constitution is on a level with ordinary legislative acts and is alterable whenever Congress pleases. The point
of a written Constitution is that it forms the fundamental law of the nation and defines the boundaries in which
other laws/rules may be made. Therefore, any act in conflict with the Constitution must be void. Marshall
asserted that it was the “province and duty” of the Judiciary to determine what the law is. Therefore, if two
laws conflict, the Judiciary must decide the case to conform with the Constitution and invalidate any conflicting
federal or state law. Marshall found support for this “judicial review” in (1) the S.Ct’s. jurisdiction over cases
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“arising under the Constitution,” (2) Oath taken by judges to discharge his duties in conformity with the
Constitution, and (3) the Supremacy Clause where the Constitution is mentioned FIRST and then only laws
made in pursuance thereof. In context of case/controversy, Court may/must consider & decide the case in
accordance with the Constitution – this may require invalidation of an existing law.
Additional Thoughts on Marbury
 Other possible reasons for finding power of judicial review:
o Justices knew the intent of the framers – they were still living & could just ask ‘em
o Federalist #78, Hamilton seems to state that there will be judicial review
o Constitutional amendments require super-majority, but law-making does not – therefore laws may
not change the Constitution & must be valid thereunder
o Art. V method of amendment implies exclusive means to amend
o Founders foresaw judicial review
 1787 – Council of Revision defeated, i.e. Justices did not get to veto laws with
 president TWO chances to vote on Constitutionality
 1788 – Federalist Papers did not find judicial review so controversial
 Art. II, § 6 said Marshall (as Adams’ Secretary of State) could both serve in the executive & judicial
branches
 Congress members take an oath to uphold the Constitution, too... why not just let their word on the laws be
final?
o Congress has political sway, Judiciary = lifetime terms
o Congress has self-serving interest – not going to invalidate a law they passed
o Congress has short terms, Judges can devote life-long study to Constitution
o Structure – Founders knew S.Ct. would have to make hard, unpopular decisions & gave them the
backbone to do so
Interpretation of the Constitution:
1. Read it – Textualism
If Constitution is silent... not very helpful
2. Overall Structure & Relationships within the Constitution
Structure tends towards SOP with checks & balances even though not explicitly stated
3. History & Intent
Drafting history, records, debates
Federalist Papers
Difference between Constitution & Articles of Confederation
4. Today: Judicial Precedent
Over 200 years of interpretation to rely on
Arguments to look at other sources for meaning
 Contemporary (now, then, or how it has changed) public policy  but too transient, idea was to not
allow reactionary popular opinion to mess up carefully structured government + Justices are too old &
too white to truly represent public opinion but, again, as society changes, interpretation necessarily
changes and S.Ct. can overrule themselves
 Consequences of changing or choosing a particular meaning
 Changed circumstances
At minimum, S.Ct. can decide if law = Constitutional when deciding whether to apply it in a given case 
Incidental byproduct of S.Ct’s. judicial power to decide cases
After law found unconstitutional
 Law still on books
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S.Ct. cannot enjoin Pres from bringing future cases under that law
Pres. CAN always prosecute someone under the law
District Court is bound by S.Ct. precedent
o Every so often, DC Judge will feel that S.Ct. was wrong & he must uphold HIS oath
o Always gets reversed
Congress cannot pass a Federal statute once the S.Ct. invalidates same State statute
o Ex. Flag burning statute
 Texas v. Johnson = S.Ct. invalidated Texas flag burning law despite popularity
 Congress passed Federal anti-flag burning statute
 U.S. v. Eichman = S.Ct. invalidated and acquitted Eichman
 Congress was not out of line... ok to test the waters + disagreement healthy for society
Good for Congress to continue passing similar laws, Pres to keep prosecuting under them  brings new
case to S.Ct.
S.Ct. CAN overrule itself, but only if there is an actual case
S.Ct. really has very little power to enforce its judgments – No president has ever defied the S.Ct.
 Even Lincoln in Dred Scott and Nixon in Watergate scandal have agreed
 FDR came close, but never ended up delivering his speech that going OFF gold standard is
unconstitutional
If President ever did decide to defy the S.Ct.  Constitutional Crisis
 Most people believe in efficacy and power of judicial review
 Pres. probably not re-elected
MANY HEADS INTERPRETING CONSTITUTION  layers & layers of protection
Cooper v. Aaron = In Brown v. Board of Education, S.Ct. found segregated schools in Kansas unconstitutional.
Governor of Arkansas called out National Guard to prevent Little Rock school from complying with Brown and
admitting black students. Arkansas contended that it was not bound by Brown, but the Court held that every
state & federal officer was bound to uphold the Constitution and the interpretation thereof by the S.Ct. Both
the Constitution, itself, and the interpretation given it by the S.Ct. is the supreme law of the land. People
are free to bring challenges to S.Ct. precedent, but they will probably not win.
Dickerson v. U.S. = Congress attempted to enact legislation to overrule holding of Miranda v. Arizona in which
the S.Ct. required the reading of Miranda Rights to criminals at the time of their arrest. The Court held that
Congress ”may not legislatively supersede our decisions interpreting and applying the Constitution.”
The Case or Controversy Requirement:
Deciding cases is what the S.Ct. does
Art II, § 2 = Limit on Judicial power  Cannot just pass on Constitutionality of any law when they
feel like it – must be a case or controversy presented to the Court
Case = an actual, particular dispute between two interested parties – not just abstract legal question
The Political Question Doctrine
Marshall in Marbury held that some cases are not suitable for judicial inquiry
E.g. when Constitution grants exclusive authority & discretion in President to act
Marbury was not this case since appointment/commission already decided – Jefferson no
longer had any discretion in the matter, i.e. it was merely a ministerial action
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Political Question Doctrine
 Some constitutional issues are “political” and therefore nonjusticiable (not judicially reviewable)
 When?
o Lack of judicially discoverable and manageable standards for resolving an issue
o Discretionary decision made by power granted to Executive or Judicial branch
Baker v. Carr = Tennessee voters seek a reapportionment of state assembly districts since they are no longer
representative 60 years later. Voters argued that their equal protection rights were violated since the districts
were no longer adequately representative of the population in each area. The question was whether this suit is
justiciable? Court previously refused to reach the merits of a challenge to congressional districting scheme in
Illinois in Colegrove v. Green. Brennan held that just because the suit sought protection of a political right
(voting), it is not necessarily a political question. Since none of the 6 categories were present (see below), the
case was justiciable. Merits: The Constitution only kinda discusses state elections/districts in (1) Equal
Protection Clause – citizens of different states are entitled to the same rights/privileges & (2) Guaranty Clause –
citizens are entitled to a republican form of government. Badly drawn districts is still a republican form of
government  no Guaranty Clause issues. Furthermore, the GC does not provide any judicially manageable
standards for resolving an issue and therefore is generally found to be non-justiciable. However, the Πs may
have an Equal Protection Claim and the case was reversed and remanded to decide this issue. DISSENT:
Frankfurter held that the case really only implicates the Guaranty Clause despite its “equal protection” label and
therefore none of it should be justiciable.
Baker announced when an issue/challenge is a PQ & therefore nonjusticiable:
1. Constitutionally assigned duty or power to a branch of government
2. Lack of judicially manageable standards for resolving the question
3. Impossibility of a court’s deciding the issue without an initial policy determination of a kind clearly
for non-judicial discretion
4. Impossibility of a court’s undertaking independent resolution without expressing a lack of respect to
other branches of government
5. Unusual need for adherence to a political decision already made
6. Potential for embarrassment from various pronouncements on a single issue by different branches of
government
Powell v. McCormack = House refused to seat Powell due to his misappropriation of funds even though he met
all of the Constitutional requirements. McCormack, Speaker of the House, argued that the issue was a political
question (not justiciable) since the Constitution stated that “each House shall be the judge of the qualifications
of its own members.” The Court held that the matter was justiciable since the only “qualifications” the House
was entitled to judge were the basic constitutional requirements, i.e. age, citizenship, and residence. Especially
true since Constitution provided in Art. II, § 5, clause 2 that 2/3 of the House is required to expel a member
(which is what the House should do in cases of misconduct).
Goldwater v. Carter = Carter terminated the treaty with Taiwan – Senate . Senator Goldwater sued Carter.
Court held that whether the President may terminate a treaty without the participation of the Senate presents a
non-justiciable political question. Because the Constitution is silent, i.e. no textually demonstrable
commitment, and the issue involves the President’s authority/discretion with regard to foreign relations, the
controversy should be fought out between the Executive and Legislative branches since they BOTH have a role
in creating treaties. DISSENT: Brennan narrows the scope and would hold that the President has power to
recognize foreign countries and can break treaties under this power. Senate advise and consent to create treaties
= merely a check on President’s power... not separate power of Senate.
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Nixon v. U.S. = Nixon, Federal judge, impeached by new Senate procedure allowing committee to try the case
and making recommendation to the Senate who voted to convict. Nixon argued that Art. I, § 3, cl. 6 confers
upon the entire Senate the power to try the proceeding like a judicial trial – not allowed to delegate this
power/duty to committee. Rehnquist finds that the word “try” has many possible definitions and therefore does
not present any judicially manageable standard of review. Rehnquist further finds that the word “sole” only
means that the Senate, to the exclusion of the House and the other branches, has power to try the impeachment.
The lack of finality and the difficulty in fashioning relief counseled against justiciability, i.e. there is no
procedure for appeal of impeachment. The Founders granted the power of impeachment to the legislative
branch implicating it as a political process  nonjusticiable. DISSENT: Souter stated that there would be
situations in which the Senate’s reason for impeachment, e.g. Pres = “bad guy” or got a parking ticket, OR
impeachment procedure, e.g. coin-toss, would seriously threaten the integrity of the determination  these
situations should be reviewable
Inherent problem with PQ Doctrine:
Must discuss the merits to determine if the case is justiciable and Court can reach the merits
E.g. read the provisions to decide if the Court will interpret the provisions
Standing to Sue
 A party has standing when he can bring a claim  usually only applies to Π
 When?
o Party must show that he has suffered injury in fact as a result of Δ’s conduct
 Injury must be “concrete and particularized” & “actual or imminent”
o Cannot be an abstract question of wide public significance that amount to generalized grievances
that are best handled through political process
o Injury must be redressed if Π wins
o Congress has appropriately conferred standing through legislation
Raines v. Byrd = Some Senators and Congressmen challenged the Line-Item Veto Act passed by Congress on
the grounds that the act was unconstitutional since it interfered with their sole lawmaking power as legislators.
Court holds that Byrd has no standing to sue since there has been no actual injury and the case merely presents
an abstract legal question, i.e. IF the president chooses to veto a line-item it will upset the leg/executive branch
balance.
A year later, in Clinton v. NY – Court found NY had standing to sue over constitutionality of Line-Item Veto
Act since Clinton had actually vetoed funding to a NY hospital. A particular injury had occurred.
Advisory Opinions
 George Washington asked S.Ct. for advice regarding U.S. neutrality in conflict between
 England & France
 CJ wrote back and said NO – S.Ct. does not make “extrajudicial decisions”
 There must be a case or controversy, i.e. an actual dispute between two parties
 Why?
o SOP between Executive & Judiciary
o Better to decide the just outcome when there are facts to place the issue in context
o In a dispute, parties are invested and have incentive to present the best case they can
o Inefficient use of resources to decide case both before & after
o Also... if actual facts  different result, lose efficacy
o S.Ct. could lose face if President chooses not to follow the advisory opinion
o Constitution provides the President with advisors for this purpose
o No finger-pointing at S.Ct. if decision (based on opinion) turns out badly
o Foreign policy = PQ and therefore, Jud has no say even after the fact
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Frothingham v. Mellon = Taxpayer Frothingham sued Secretary of the Treasury challenging the
constitutionality of a statute giving money to reduce maternal & infant mortality. Assuming a valid claim, the
S.Ct. finds that there is no standing because the taxpayer had no real interest in the subject-matter, nor was a
real injury inflicted or threatened. Very unclear what remedy could be prescribed in this case. Furthermore, the
issue of how to spend tax-dollars is a political policy decision and a power granted to Congress (taxing &
spending power) by the Constitution. Therefore, the issue is a political question and non-justiciable. If
discriminatory tax – maybe real injury and standing would exist.
Flast v. Cohen = Taxpayers challenge the constitutionality of an act giving federal aid to religious schools on
Establishment Clause grounds (Gov’t will not adopt an official religion). Court found standing existed when
congressional action under tax/spend power is in derogation of those constitutional provisions that operate to
restrict that power, e.g. Establishment Clause.
Valley Forge Christian College v. Americans United = Government gave land to a Christian college. Court
found NO standing for this challenge on establishment clause grounds by limiting Flast to exercise of spending
power.
Schlesinger v. Reservists Committee to Stop the War = Court held that past and present members of the armed
forces had NO standing to challenge the Reserve membership of certain Congress members as violating the
incompatibility clause (Art. I, § 6, cl. 2 = no person can serve in both Legislative AND Executive/Judicial
branches at one time). No real injury occurred to Πs.
Should level of injury & Judge’s ability to empathize matter?
1st Amendment = always petition government for redress of any grievances
U.S. v. Richardson = S.Ct. held that taxpayer had no standing to argue that a law keeping CIA expenditures
secret violated Art. I, § 9, cl. 7 requiring “a regular Statement of Account of the receipts and expenditures of all
public money shall be published from time to time.”
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These cases assert that a GENERAL INJURY affecting big groups of people does not create standing to sue
 better served/redressed by political process
Judiciary is good at vindicating individualized injuries that cannot get redress in the political process
Lujan v. Defenders of Wildlife = Secretary of Interior, Lujan, originally interpreted Endangered Species Act to
cover action taken in foreign nations and then re-interpreted that ESA only applies within US. DOW sought
declaratory judgment that ESA applied to extra-US activity. DOW argued their standing based on affidavits
from members (“animal nexus,” i.e. anyone interested in seeing animals has standing, and “vocational nexus,”
i.e. anyone who works with the animals has standing) and the ESA’s citizen-suit provision allowing for suit by
private individual where an agency fails to conform to the Act. Court found that NO standing because DOW
did not satisfy the injury requirement. Greater public interest problem and therefore, redress of this type of
generic injury is better suited to political process.
Lujan announced three elements for standing:
1. Π must have suffered an injury in fact
Invasion of a legally protected interested that is concrete and particularized AND actual and
imminent, rather than hypothetical
2. Must be a causal connection between the injury and the conduct complained of, which is traceable to
the act of the Δ, rather than a result of action by a 3rd party
3. Must be likely, not merely speculative, that injury will be redressed by a favorable decision
If not, makes decisions more like advisory opinions, i.e. no real world effect
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ESA’s citizen-suit provision
 Attempt by Congress to allow standing by anyone if an agency does not follow Act
 Congress cannot decide Judicial powers (if so, they could narrow them out of existence)
 Congress cannot enlist courts to monitor the Executive branch in its execution of the laws without an
appropriate case/controversy, which includes appropriate standing
Friends of Earth v. Laidlaw Environmental Services = Ginsburg found injury-in-fact requirement satisfied when
environmental organization sued under Clean Water Act for discharging pollutants into a river because they
were now deterred from fishing, camping, etc. near the river. No SOP issues since both private parties.
FEC v. Akins = Voters challenged Federal Election Commission failure to treat the American Israel Public
Affairs Committee as a “political committee” subject to requirement that they disclose information regarding
membership that would be helpful in evaluating candidates for public office who had received the group’s
support. Issue of wide concern, but concrete enough injury to create standing.
Department of Commerce v. House of Representatives = Challenges to proposed use of statistical sampling to
conduct 2000 Census. The Court did not decide whether members of the House had standing by simply holding
that individual Πs who would certainly lose seats under the plan.
Mootness & Ripeness
Mootness = No more need for the decision – too late – Courts will not decide the case
 Ex. Party has died
 Exceptions: Cases that are capable of repetition, yet evading review, e.g. pregnancy in Roe
 Deals with redressability
Ripeness = Case brought too early – no real controversy yet
 Deals with injury-in-fact
Both part of case/controversy requirement just like standing
No need for Court to go beyond power of deciding cases – would threaten their role & encroach on democratic
process
CONGRESSIONAL POWER
The Necessary and Proper Clause
Art. I, § 8, cl. 18 = Necessary & Proper Clause
 Congress not limited to express powers enumerated in Art. I, § 8
 NOT a restriction, but an expansion, of Congress’ express & implied powers
 “Necessary” = useful/helpful, not strictly indispensable
 Must ask whether the power/means at each step further away from the Constitutionally granted power is
N&P to that power
 Congress makes the call  decides what they will enact
 Reviewable by S.Ct. if there is a blatant abuse or acceptable challenge
McCulloch v. Maryland = Maryland enacted law requiring all non-Maryland banks to pay annual tax to the
state. Second Bank of the United States (chartered by Congress) was only bank required to pay. McCulloch,
local cashier of the Bank, refused to pay the tax. Congress created bank to help carry out other functions. Court
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held that (1) Congress had the power to create the bank as a means to Congress’ Constitutionally enumerated
ends. The “necessary and proper” clause grants Congress power to create laws that are “necessary” to carry
into execution their enumerated powers – the clause was interpreted to expand Congress’ powers, not restrict
them. The term “necessary” was interpreted to mean those means that would be useful or convenient, not only
those means that are absolutely indispensable to carrying out the power. Also held that (2) MD did not have the
power to tax the bank. MD’s tax is an attempt to control the federal government – power to tax is the power to
destroy. Therefore, a state law – destruction of the U.S. Bank – is in direct conflict with a law made in
pursuance of the Constitution (because it is N&P), i.e. creation, and therefore, preservation, of the U.S. Bank.
Federal law trumps state law. S.Ct. holds that neutral, nondiscriminatory, and uniform taxes on the bank (such
as property tax, etc.) are Constitutional.
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Post Office  Another example of importance of N&P Clause
o Constitution grants Congress express power to create post offices & post roads
o N&P to that power is creation of mail roads & means to punish mail-robbers
o N&P that mailman may drive trucks without licenses (in the past) or on wrong side of road
Even if NO N&P Clause  creation of bank probably still OK
 No express prohibition in Constitution on creating a bank
 Required to carry out other powers, e.g. taxing, spending, etc.
 Nature of Constitution = big picture  implied power to fill in the gaps
 Mere power to do something is not enough... must be able to create the means to the Constitutional end
 10th Amendment = all powers not delegated to Congress are reserved to the states and the people, BUT
no “expressly” in text as in Articles of Confederation  not complete restraint on powers not expressly
granted to Congress
Osborn v. Bank of the U.S. = Many states refused to comply with McCulloch. Here, Ohio imposed tax on bank
and seized over $100,00 from bank vaults to stimulate relitigation of McCulloch issues. The Court reaffirmed
its previous decision and also confirmed Bank’s statutory authority to sue in federal court.
The Commerce Power
Art. I, § 8, cl. 3 = “To regulate commerce with foreign nations, and among the several states, and with
the Indian tribes”
Why?
 Allows Congress to keep channels open between states – no state acts in its own best interest to the
detriment of other states
 One big U.S. market  better overall economic growth
Three Parts:
1. Regulate
 Create rules to control how businesses and the states can act w.r.t. commerce
 Make uniform, regularize commerce
2. Commerce
 Buying and selling anything
 Transporting goods
 Manufacture of goods is more broad & covers buying raw materials, purchasing labor, and transporting
final product  controversial interpretation (can make whatever you want, but if no one is buying... not
commerce)
3. Among the Several States
 Between states – Interstate
 Must involve more than 1 state – NOT intrastate
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The Early Cases
Gibbons v. Ogden = NY granted Livingston & Fulton, who subsequently licensed Ogden, an exclusive right to
operate steamboats in NY waters, including ferries between NYC and NJ. Gibbons had a competing steamboat
service, in violation of the monopoly held by Ogden, but pursuant to a federal law. The Court defined
“commerce” as “intercourse,” including navigation and transportation services, “among” requiring more
than 1 state be involved, and “regulate” as “prescribe the rule by which commerce is to be governed.”
S.Ct. therefore held that the federal statute was valid under the Constitution and therefore Gibbons license was
valid and trumped Ogden’s monopoly... clearly goal of commerce clause = prevent monopolies which could
impair interstate commerce. The only limits of Congress’ power under the commerce clause was Constitution,
itself.
U.S. v. E.C. Knight Co. = Government sued under the Sherman Act to set aside acquisition by American Sugar
Refining Company of stock of four other companies giving them control over 98% of the country’s sugar
refining. S.Ct. held that local manufacturing is NOT subject to the commerce clause (not “among several
states”) even if the goods produced are intended for interstate commerce.
“Substantial Economic Effects” Theory
Houston E. & W. Ry. Co. v. U.S. (Shreveport Rate Case) = Interstate Commerce Commission attempted to
regulate RR shipping rates between points within Texas because they were cheaper, even though a longer trip,
than the rates to ship between TX and Louisiana. The rates unjustly discriminated in favor of traffic within TX
and against similar traffic between LA and TX, i.e. depress commerce interstate between TX and LA. Court
held that Congress has authority to regulate INTRAstate commerce matters if they have a “close and
substantial relation” to INTERstate commerce.
“Stream of Commerce” Theory
Swift & Co. v. U.S. = Court sustained Sherman Act injunction against price fixing by meat dealers because they
were in the middle of the stream of commerce, i.e. the meat dealers sold cows from one state who would be
shipped to yet another state after purchase. A good is “in interstate commerce” from the time it leaves its
point of origin, if it is contemplated that the good will ultimately make its way to another state for sale.
Champion v. Ames (The Lottery Case) = Federal Lottery Act prohibiting transportation/shipment of lotto
tickets across state lines. Since lottery tickets were subjects of traffic, and therefore commerce, Act upheld.
States can say lottery = immoral and therefore prohibited. Congress felt that commerce would be polluted by
the shipment of lotto tickets. Court found that the act’s objectives, i.e. protect public morals, was
irrelevant since the lotto tickets were clearly subjects of commerce and therefore Congress had the power
to regulate them, regardless of why it wanted to do so. DISSENT: Congress encroaching on state power –
NO federal police power to protect public morals. Not cool to transform non-commercial article into a
commercial one merely because it was transported.
Other “evils” S.Ct. upheld Congress’ right to prohibit the transportation of:
 Transportation of women  discourage prostitution – Hoke v. U.S.
 Deleterious eggs – Hipolite Egg Co. v. U.S.
Narrow concept of Commerce Power  lots of laws shot down, but slow erosion
 Local manufacturing/production is not subject to commerce power, even if goods are ultimately intended for
interstate commerce
 Direct/Indirect distinction – activities that directly affect interstate commerce can be regulated by commerce
power, but activities causing an indirect effect are not subject to commerce power
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Social welfare measures masquerading as interstate commerce will not be upheld  purpose of act is
important to constitutionality
Completely local companies are not proper subjects of commerce power
Can not aggregate effects on interstate commerce of many small, purely local companies
Hammer v. Dagenhart = Court refused to uphold law restricting child labor by barring the interstate movement
of goods produced by children. Congress does not have power to regulate local production of goods, even if
they are intended for interstate commerce. Similar reasoning as Knight. Congress argued that states
allowing child labor create an unfair advantage to those states and that law = attempt to “regulate,” i.e. create
uniformity, between products sold by different states.
Thoughts on Hammer
 Constitution presumes something left over for states
o States have all powers not granted to Fed government
o Expanding powers under commerce clause  nothing left for states
 Something affecting commerce cannot be said to be commerce
 Can Congress really regulate that which “affects” commerce?
o Maybe N&P to regulating commerce
o McCulloch = Congress has implied power to do almost anything to meet the end of its enumerated
powers, i.e. regulate commerce
o Commerce Clause  pretext to regulate that which Congress has no power over?
o Champion = Congress’ reasons are not relevant – only if proper subject of regulation
 Unending tension between F government with limited powers and state government trying to assert its rights
to left-over powers
New Deal Measures Based on Commerce Clause Power
Railroad Retirement Board v. Alton Railroad Co. = Law requiring workers in interstate commerce to retire at a
certain time. S.Ct. invalidated law because it was “not in purpose or effect a regulation of interstate
commerce,” but merely a social welfare measure.
Shechter Poultry Corp. v. U.S. = National Industrial Recovery Act authorized President to promulgate codes of
fair competition for the trade or industry. Lack of a nexus between the completely local slaughterhouse, subject
to the promulgated code, and interstate commerce led the S.Ct. to invalidate the law. Activities that directly
affect interstate commerce can be regulated by commerce power, but indirect activities could not.
Carter v. Carter Coal Co. = Bituminous Coal Conservation Act regulated maximum hours and minimum hours
in coal mines. Carter brought stockholder’s suit against his company to enjoin it from complying with the act.
Again, the S.Ct. struck down the law holding that Congress was attempting to regulate production, a purely
local activity, and not commerce. No matter how many workers in how many states, still not enough effect
on interstate commerce.
FDR   Court-Packing Plan
 Court was no longer able to handle the case load
 Justices are too old and infirm to correctly read the commerce clause (6 were over 70)
 For each Justice over 70, a new Justice would be appointed – not to exceed 15 on the bench
 Power grab – get Congress who passed New Deal bills to appoint Justices who would be New Deal friendly
 Plus plenty of close calls  few more votes may sway entire bench in favor of New Deal Laws
 C.J. Hughes spoke out against the plan stating that more Justices would create inefficiency – present group
is working out fine
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Senate ultimately rejected the proposal in June 1937
AFTERMATH: Justice Roberts seemed to have a change of heart...
The Modern Cases
Concept of commerce power expanded  more & more laws upheld
 Intrastate activity having a “close & substantial” relation to interstate activity
 Congress has power to prohibit anything from traveling in interstate commerce if it has a “substantial
economic effect” on interstate commerce
 S.Ct. will not second-guess Congress’ motives in creating laws if the subject matter properly falls within
commerce power
 S.Ct. can aggregate local, non-commercial activity to find that it effects interstate commerce
 Laws with environmental or social purposes are OK so long as there is an “arguable connection” between
the regulation and interstate commerce
 Congress can regulate in areas traditionally reserved to the states’ police power, i.e. criminal laws, so long
as there is a “rational basis for finding a connection” between the regulated activity and interstate commerce
NLRB v. Jones & Laughlin Steel Corp = National Labor Relations Board found J&L had engaged in unfair
labor practices in violation of NLR Act by discharging employees for their union involvement. J&L made an
“as applied challenge” to the constitutionality of the act. Court found that Congress had the power to enact
this Act because even intrastate activity, such as labor relations in a particular company, that has a close and
substantial relation to interstate commerce may fall within federal control. S.Ct. disregarded the
direct/indirect distinction in creating the “close and substantial relation” standard. The employees of J&L were
involved in production, but the interstate effect of the discrimination would be immediate and catastrophic, i.e.
J&L involved in a huge interstate business – even production crossed state lines (even though individual
workers only worked in one state at a time). Court did not overrule Carter, yet.
Types of Constitutional Challenges:
 “As applied” – The law is not constitutional as it is being applied to me
 “Facial” – The law would never be constitutional, regardless of its application
By 1941 – entirely different court  whole new ballgame
U.S. v. Darby = Darby, a lumber producer, challenged an indictment charging him with violating the Fair Labor
Standards Act which provided that goods produced by workers without maximum hours and minimum wages
could not be shipped in interstate commerce. Darby = completely small, interstate company. S.Ct. explicitly
overrules Hammer (Child Labor Case) by holding that Congress has the power to prohibit anything from
flowing in inter-state commerce, especially if it is injurious to public health, safety or welfare. The motives
behind a law are matters for the Legislature and the Court will not second-guess them. The Court also
applied reaffirmed the “substantial effect” test of the Shreveport Rate Case. Lower wages cheaper goods 
unfair market share & competition among states that violate the labor standards Congress has created in the
NLR Act.
Thoughts on Darby
 Regulate = prohibit, but purpose of commerce power presupposes that commerce exists
 Congress cannot prohibit ALL commerce
 S.Ct. seems to be allowing Commerce Clause to be that pretext for Congress to wield power they do not
have  letting states take care of themselves, i.e. political process work to ensure Congress is creating laws
the people want
 Congress now has power over interstate commerce and can use it for any purpose
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Court held decision is unaffected by 10th Amendment which is “but a truism”  Congress already has
power to regulate the thing that is “commerce” and therefore, no intrusion on state power
10th presupposes something left over for states BUT – reading of commerce clause so broadly  leave
nothing for the states
“Aggregation of Substantial Effects” Theory
Wickard v. Filburn = Filburn, a dairy owner in Ohio, was assessed a penalty by Wickard, Secretary of
Agriculture, for growing too much wheat under the Agriculture Adjustment Act. Filburn argued that eating his
own wheat is not interstate commerce. S.Ct. upheld the Act and held that Filburn’s activity had a “substantial
economic effect” on interstate commerce, despite its local and non-commercial character, because if every
farmer grew extra wheat for his own consumption, the purpose of the Act, stabilized market for wheat, would
be frustrated. New rule that local, non-commercial activity that affects interstate commerce when
aggregated among all those who engage in that activity is subject to Congress’ commerce power. Clearly
overrules Carter Coal, if not already so in Darby.
“Enterprise Concept”
Maryland v. Wirtz = S.Ct. upheld amendments to Fair Labor Standards Act that extended coverage to every
employee in an enterprise engaged in commerce or in the production of goods for commerce, i.e. any worker
who even remotely touched goods related to interstate commerce.
Commerce Power Used for Social Ends
Hodel v. Virginia Surface Mining & Reclamation Ass’n. = S.Ct. upheld Surface Mining Control and
Reclamation Act of 1977 regulating strip mining even on private land within the borders of a state. Activities
causing air or water pollution, or other environmental hazards, cross state boundaries and are therefore
covered under the commerce power.
Heart of Atlanta Hotel v. U.S. = Civil Rights Act of 1964 = general ban on discrimination in places of public
accommodations. So long as there is an arguable connection between the regulation and interstate
commerce, a law with a social purpose can be upheld. Because racial discrimination in hotels had a huge
effect on interstate travel, i.e. blacks could not travel since there would be nowhere to stay overnight on the
journey, it is a proper subject for regulation under commerce power.
Katzenbach v. McClung = Same as Heart, but regarding restaurants. S.Ct. held that aggregation of all the
discriminatory restaurants in the country created a big enough effect on interstate travel/commerce for
Congressional regulation.
Commerce Power Used to Create Crimes
Perez v. U.S. = Congress had the power to criminalize loan sharking because of its relationship to organized
crime, i.e. funding national racketeering activity. Congress may regulate in areas traditionally reserved to
the states’ police power so long as there is a “rational basis” for finding a connection between the
regulated activity and interstate commerce. OUTER LIMITS for the “affecting commerce” rationale
The Limits of the Commerce Power
So far, S.Ct. has said there are limits to the commerce power, but has upheld most every challenged law...
New Requirements:
 Activity must fall into one or more categories:
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
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3. Activities having a “substantial relationship” to interstate commerce
Congress must have a “rational basis” for finding that activity had “substantial effect” on interstate
commerce
If not clearly interstate activity, law must include jurisdictional element, i.e. crossing state lines
No aggregation if activity is completely local, non-economic activity
U.S. v. Lopez = Congress passed the Gun-Free School Zone Act under commerce power and authority it
believed it had based on previous cases. More and more gun violence in schools and Congress felt that state
laws were not adequately dealing with the situation. The Court upheld the “rational basis” test of Perez, and
announced three broad categories of activity Congress could regulate under the commerce power. The Act was
invalidated because it did not fit into categories 1 or 2 and constituted a criminal law that had nothing to do with
commerce or any sort of economic enterprise, especially since there is no requirement of crossing state lines.
DISSENTS: Breyer – “substantial” test is narrower than recent case law. Congress could have rationally
concluded that guns in school zones significantly (or even substantially) affect interstate commerce, i.e.
education directly affects jobs/productivity/economy – poor school situation  poorer economic players later
on. Souter – The majority treats “rational basis” test as subject to gradation according to the
commercial/noncommercial character of the regulated activity  back to direct/indirect standard. Stevens –
Guns are articles of commerce and therefore fall under the commerce power.
Categories announced in Lopez:
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
 People & things in commerce
3. Activities having a “substantial relationship” to interstate commerce
 Court upholds “substantial economic effect” test of Shreveport Rate Case
 Requiring “substantial” effect places a limit on Congress
o Otherwise, everything has some effect on commerce
o No federal police power  ensures states keep their powers
“Rational Basis” Test = Court will uphold congressional action if it bears a reasonable and rational relationship
to the attainment of an appropriate government end
Thoughts on Lopez
 About individual liberty
o First criminal case (except Perez) to be challenged under commerce power
o Life, liberty at issue  S.Ct. less likely to expand an already overly broad doctrine
o S.Ct. afraid that life, liberty will be taken by power that does not exist
o Today: most federal crimes involve crossing states lines
 Also about Federalism
o Division of power between federal (enumerated) and states (everything else)
o Court ensures there will be something left over for states
 NO CASES WERE OVERRULED BY LOPEZ
 Apparently there were no legislative history reports linking school violence with adverse effects on
interstate commerce
 Refuses to aggregate if the activity is local &/or non-commercial
 If guns in school zone regulatable under commerce power...
o Bedtimes?
o Breakfast?
 Sale of guns in school zones?
o At least there would be a sale and potential shipment from production elsewhere
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o Stronger link to commerce and interstate activity
U.S. v. Morrison = A female college student sued two men she accused of raping her under the Violence
Against Women Act that provides civil remedy for victims of gender-motivated violence. The Act was held
unconstitutional because there was (1) no economic activity, i.e. no instrumentalities, channels, or goods in
commerce covered in the Act, (2) no jurisdictional element establishing interstate commerce, and (3) the
Congressional findings were too attenuated and could apply to any violent crime, i.e. no “substantial effect.”
This is an area of law traditionally left to the states. DISSENTS: Souter – Congress gets to decide if there is a
“substantial effect” and S.Ct. can only decide if Congress’ conclusion has a rational basis. Breyer – Congress
best suited to striking state/federal balance when nearly everything can affect interstate commerce.
Thoughts on Morrison
 Legislative history = relationship between gender-motivated violence and interstate commerce
 NO CASES WERE OVERRULED BY MORRISON
 New states’ rights approach to Commerce Clause jurisprudence
o BUT States asked for help in this area from federal government (too expensive to handle alone) 
no real infringement by Fed on states’ powers
o But maybe S = OK to Fed government because they could not get their own state legislatures to pass
similar law, i.e. not really what people wanted
 No aggregation if activity is local &/or non-economic
 Still 2 ideas in tension
o Old text applying to new circumstances
o Federalism is still very important – want those 2 layers
Hypo = National cooling off period of 2 years required before any couple may get a divorce (one of the “parade
of horribles” suggested in Morrison)
 Leave it to politics?
o If people do not like the law  they will vote those legislators out of office
o Congress has always exercised self-restraint  must be good reason for this law
 Allow Judicial Review?
o Just because Congress says something affects commerce does not make it so
o Maybe abuse of discretion, i.e. rational basis, test proper
Congressional Power to Regulate the States
 Federalism about separation of powers between F/S government AND extent to which Congress has power
to directly regulate the states as states
 How/Where to run government covered as a state’s power under 10th Amendment
Federalist #15 (Hamilton) = Nature and problems of confederation  better to directly regulate individuals
than states, i.e. people = “only proper objects of government”
States believed they were ratifying Congress’ power to regulate people, not states directly
Status of Congressional Power to regulate states:
 Generally applicable laws are OK
 Specific commandeering laws are NOT cool
Coyle v. Oklahoma = Congress has the power to admit new states into the union, i.e. Oklahoma, and attempted
to specify where the state capitol would sit since this location would have an effect on interstate commerce.
Court invalidated this condition holding that the power of a state to (re-)locate its own seat of government is
essentially powers beyond the control of Congress. Pure federalism concern + no political safeguard since
OK had no representation in Congress at the time it was created.
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U.S. v. California = Congress may regulate state-owned railroads in the same way that it regulates privately
owned RRs. United Transportation Union v. LIRR = Reaffirmed California.
Why do states own/operate RRs within the state?
 Losing propositions – never profit
 Regulate commerce within their borders (maybe even outside borders)
 Cheaper to run trains than build more roads
 Less pollution, traffic
 Want people to be able to move around
New York v. U.S. (1946) = S.Ct. upheld Federal tax on state-owned and operated water bottling plant. Selling
bottled water is not a traditional state function. Here the state is competing and participating in the marketeconomy, i.e. commerce. Perhaps if the state were only selling water to be pumped into homes, then out of
Congress’ control.
National League of Cities v. Usery = Expansion of Fair Labor Standards Act to include state police &
firefighters, i.e. less fires/crime  more commerce. An expansion of the FLSA finally invalidated because
Congress does not have the power to interfere with a state when it is performing an integral government
function.  Reverse of McCulloch – Federal control (like a tax) on state powers.
Nat’l League of Cities created 3-part test:
1. Must be showing that challenged statute regulates the “states as states”
2. Federal regulation must address matters that are indisputably attributes of state sovereignty
3. Must be apparent that the states’ compliance with the federal law would directly impair their ability
to structure integral operations in areas of traditional governmental functions
Next cases did NOT overrule NLC, just distinguished...
Hodel v. Virginia Surface Mining & Rec. Ass’n. = Upheld federal law regulating strip mining. No attempt by
Congress to commandeer legislative processes by the states.
United Transportation Union v. LIRR = No interference with traditional state functions, since operation of
railroads were traditionally a function of private industry.
FERC v. Mississippi = Public Utility Regulatory Policies Act directed state utilities commissions to “consider”
the adoption of specific federal rate design and regulatory standards. Upheld the law since Congress could have
pre-empted the entire field under the commerce power, yet chose a less intrusive method of regulation.
Garcia v. San Antonio Metropolitan Transit Authority = Congress attempted to expand the FLSA to mass transit
workers. Blackmun joined the majority (after concurring in NLC). Court overruled NLC because the
“integral government function” standard was “unworkable.” State sovereignty interests are more properly
protected by the political safeguards than judicial review of Congress’ every move. FLSA upheld as applied to
state government workers. DISSENT: O’Connor & Rehnquist – Congress cannot be the sole judge of its own
powers. 17th Amendment (direct election of Senators) plus other events  Congress less responsive to will of
STATES. We’ll be back!
New York v. U.S. (1992) = Congress attempted to regulate by way of “incentive” the radioactive waste
produced in a state. Incentive #3 = States legislatures (legislative officers) must regulate in the manner
Congress has prescribed or else the state must take title to and be responsible for all waste not properly disposed
of. Court found this act unconstitutional. Congress may not commandeer the legislative process of the states
23
by compelling them to enforce a federal regulatory program. Incentives 1&2 were ok since they merely
offer the choice of regulation as per federal standards or preemption. Furthermore, the receipt of federal funds
may be a properly conditioned on the state’s compliance with federal regulatory procedures. DISSENT: White
– Act really agreement between the states & OK. Stevens – No difference between direct regulation of state
railroads, prisons, schools, etc. and commanding the states to regulate waste disposal.
Thoughts on New York
 Federal government did not pass law regulating disposal directly because
o Pass costs on to states
o Pass blame on to states
 Congress has the power to regulate something directly, i.e. people/state economic activity
 Congress does not have the power to tell the states how to regulate
 Federalism = States are autonomous  cannot be pushed around/told what to do by Fed Gov’t
Printz v. U.S. = Brady Handgun Act required local/state sheriffs to perform background checks on all persons
wishing to buy guns. No action required after the search is complete. Only interim system while Atty. General
established national background check system. Sheriffs (state executive officers) from Montana & Arizona
challenged constitutionality. S.Ct. found the requirements unconstitutional because precedent says Congress
cannot compel states to implement by legislative, or executive action, federal regulatory programs.
DISSENT: Stevens – New York said F cannot compel states to administer federally regulated program = dicta.
Souter – Federalist #27 provides that federal government can require state officials to take appropriate action.
Breyer – In other countries, local government implementing national policy interferes less with the independent
authority of a member state  should shed light on our issues.
Thoughts on Printz
 State executive officers vs. legislative officers in New York
 Methods of Constitutional Interpretation:
o Text
 Scalia: No Text
 Probably no direct text on point
 Commerce Clause
 Sale of guns is commerce & Congress can “regulate”
 States are not the economic actors here  no regulation of states
 N&P Clause
 In order to regulate, must provide for background checks  states officials are only
ones with means to do it
 Perhaps NOT necessary – other ways (even better ways) to do it
 Guaranty Clause = Presupposes states are sovereign government, i.e. federal can’t tell states
what to do
 Oath Clause = Requires local officials to uphold constitution – requires that law be
constitutional, first
 Equal Reorientation in Senate
 Senate passed Brady Act – political safeguards
 BUT liberty protected by dual government – equal representation just helps
o History
 Early Congress recommended legislation to help jail federal prisoners
 Did not command state executive to do it
 No assumption of power to commandeer
 But just because they did not doesn’t mean they could not
o Structure
24


2 levels of government + SOP
Congress is circumventing federal executive by giving power to enforce laws directly to state
officials
o Precedent
 Only New York saying Congress cannot compel states to legislate
 Distinguishes generally applicable federal laws which are not directed at forcing the states to
do anything
New York = Federal government cannot compel states to enact federal regulatory programs
Printz = Federal government cannot compel states to enforce/administer federal regulatory programs
** Constitution (originally) understood to permit imposition of an obligation on state judges to enforce both
federal & state laws **
Reno v. Condon = Congress enacted Drivers Privacy Protection Act to stop the sale of personal information by
state DMVs. Court finds that Congress has the power to prohibit this activity because (1) the sale = commerce
and purchased by marketers for solicitation use throughout country, i.e. interstate and (2) law is not restricted by
10th Amendment because it does not compel the states to enact a law or enforce a law. States stepped into a
non-traditional economic role. Reminiscent of New York water bottle case.
Additional Congressional Powers
Taxing Power
Art. I, § 8, cl. 1 = “To lay and collect Taxes”
Congress can raise revenue to spend as provided by spending power
Can Congress use taxing power to regulate?
 If purpose of tax = clearly regulatory  invalid
 If regulation = incidental to revenue  valid
o In both cases, must look to Congress’ motive
o But if revenue actually produced, maybe better that S.Ct. not second guess motive
Bailey v. Drexel Furniture Co. (Child Labor Tax Case) = 1919 & S.Ct. had said Congress did not have power to
regulate child labor under commerce clause (Hammer). Drexel argued that a child labor tax was really
regulation of the employment of child labor, a state function. Court held that the tax was facially a penalty
and therefore invalid. Court must be blind not to realize Congress’ only goal in creating this tax was to stop
child labor. If tax has incidental regulatory effect, but main purpose = revenue, then OK. Otherwise, slippery
slope  Congress can regulate anything by taxing it out of existence.
Hypo = Cigarettes are not illegal (and Congress has no power to directly regulate tobacco), but there is a huge
tax on them. Tax makes cigs so expensive that kids cannot afford them, but also creates SO much revenue that
it practically ensures Congress will never outlaw them.
U.S. v. Kahriger = Congress taxed bookies & required them to register with the IRS. Court finds this taxing
valid because it is clearly for revenue-raising purposes. Requiring registration merely means to create easier
collection of the money. Tax not invalid merely because it discourages/deters activity that is taxed.
Spending Power
Art. I, § 8, cl. 1 = “To pay the debts and provide for the common defense and general welfare of the United
States”
Constitutional limits on Congress when exercising its spending power are less than the limits on its authority to
regulate directly.
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U.S. v. Butler = Agricultural Adjustment Act (of the New Deal) limited agricultural production by paying off
farmers not to farm. Benefit payments were drawn from processing tax. Because agricultural production is a
matter reserved to the states, the taxing and the spending are means to an unconstitutional end.
Taxing/spending power cannot be used to regulate areas of state concern, nor can it be used to buy
compliance in an area that Congress is powerless to command. DISSENT: Stone – Inducement, as here is
OK, coercion would not be.
Thoughts on Butler
 Perhaps Congress can tax to regulate if that being regulated falls under an enumerated power
 Otherwise, Congress can ONLY tax something to produce revenue
South Dakota v. Dole = 16th Amendment created federal income tax  HUGE revenue for Congress to spend.
Congress directed Secretary of Transportation to withhold 5% of federal highway funding from states that did
not raise the drinking age to 21. Court found that incident to the spending power, Congress may attach
conditions on the receipt of federal funds. Power has only 4 general limits (see below). Even though 21st
Amendment directly prohibits Congress from regulating drinking age (left to states), S.Ct. finds that drinking
under 21 is sufficiently related to safety on roads (lots of kids crossing state lines to drink) to validate the
condition. However if conditions become so coercive as to go from encouragement  compulsion, may not be
upheld. DISSENT: O’Connor – Condition is over- (even if no car/license still can’t drink under 21) and under(22 year olds can still drink & drive) inclusive.
Dole announced 4 general limits to spending power:
1. Must be “in pursuit of” general welfare
 Not a real limit since S.Ct. will give deference to Congress’ discretion
2. Condition must be so unambiguous and clear so that states can exercise their choice knowingly,
cognizant of the consequences of their participation
 More procedural than substantive
3. Condition must be related to the program being funded
 S.Ct. has only required a high-level of abstraction
4. Other constitutional provisions may bar the condition
 Ex. outlawing free speech
War Power
War Power in Congress
Art. I, § 8 = “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land
and water; To raise and support armies...; To provide and maintain a Navy...; To provide for calling forth the
militia to execute the laws of the Union...”
Prohibition on State Action Regarding War
Art. I, § 10 = “No state shall... grant letters of marque and reprisal... No state shall, without the consent of
Congress... keep troops or ships of war in time of peace... or engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay.”

Predictive Matter: Courts give Congress & President more leeway during war-time
Woods v. Cloyd W. Miller Co. = End of WWII, Federal Housing and Rents Act attempted to regulate rent by
virtue of war power. Presidential proclamation ended hostilities. S.Ct. held that congressional powers under
the “war power” can continue after the end of the hostilities in order to remedy problems brought on by
the conflict. CONCURRENCE: Jackson – If war powers last as long as the effects and consequences of war 
permanent.
26
Rupert v. Caffey = S.Ct. upheld prohibition statute following WWI because it conserved manpower and
increased efficiency of production during demobilization and also because it helped increase supply of grains
and cereals depleted by the war.
Treaty Power
Shared Congressional & Presidential Treaty Power
Art. II, § 8., cl. 2 = The President “shall have the power, by and with the advice and consent of the Senate, to
make treaties, provided two thirds of the Senators present concur...”
Why difficult to adopt treaty?
 Treaty is supreme law of the land under Supremacy Clause – trumps contrary state law
 Should be at least as hard as creating federal law
 Ensure all states are in on the decision
Prohibition on State Action
Art. I, § 10, cl. 1 = “No state shall enter into any Treaty, Alliance, or Confederation... No state shall, without the
consent of Congress... enter into any agreement or compact with another state, or with a foreign power...”
Supremacy Clause & Treaty Power
Art. VI, cl. 2 = “all treaties made, or which shall be made, under the authority of the United States...”
Difference between Treaties & Laws
 Laws = made in pursuance of Constitution  supreme law of the land
 Perhaps to ensure that treaties made under Articles of Confederation were preserved
Missouri v. Holland = Migratory Bird Treaty between U.S. & England created restrictions on killing, capturing,
and selling certain birds. The treaty was codified into federal law as required by its terms. Challenge was based
on interference with states’ reserved powers. By Art. VI Supremacy Clause, treaties are supreme law of the
land when made “under the authority of the United States” and do not have to be made in pursuance of the
Constitution. If the treaty is valid, i.e. made in accord with the constitutional process, the act is valid
under N&P clause, even if the act alone would have been unconstitutional.
Thoughts on Missouri
 Potential for abuse  if commerce power cannot get Congress control over a purely local problem, easy to
ask a friendly foreign nation to make a treaty and then pass the law anyway
 Bricker Amendment to Constitution would have required that all treaties must be Constitutional and any law
based on a treaty be Constitutional without the treaty  failed in Senate
 In the meantime...
Reid v. Covert = S.Ct. concluded that a treaty may not confer power on any branch of government that is free
from other Constitutional restraints.
Foreign Affairs Power
 No specific catch-all foreign affairs power in Constitution
 Federal government thought to have broad, if not plenary, power to conduct foreign relations
 Why?
o Sending & receiving of ambassadors, war power, treaty power, commander-in-chief power, foreign
commerce power, immigration  helps conclude that foreign affairs was for federal government
only
o Provisions limiting states’ powers w.r.t. foreign relations  no treaties, no war, etc.
o Need for uniform policy from a unified country of states
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FEDERAL RESTRICTIONS ON STATE POWER
The Role of States in Federal Elections
U.S. Term Limits, Inc. v. Thornton = Arkansas adopted an amendment to its constitution creating term limits
for its Congressional representatives. S.Ct. found state may not limit the number of terms an elected
federal official may serve. Framers intended Constitution to be the exclusive source of qualifications for
members of Congress to create a uniform system among the states. Allowing the candidates to run as write-ins
is not a valid exercise of the state’s power to determine the time, place, and manner of holding elections.
Furthermore, states never had the ability to alter the qualifications, or any other constitutional provision  NOT
a power reserved to states in 10th Amendment. DISSENT: Thomas – Constitution is silent on this point,
therefore, states can add qualifications, even if they cannot abolish those in existence.
Thoughts on Thornton
 The longer Senators are re-elected, the more likely they are to lose touch with constituents
 More senior members of Congress  better representation for their state
 Tension between
o Idea of equal representation demands uniform requirements
o BUT people of Arkansas wanted this change
 Further tension between
o States’ rights
o Federal power
 Before 17th Amendment, states had ultimate discretion in choosing Senators as long as they met
Constitutional requirements, i.e. C requirements = bottom
 Now, C requirements = top
State control of Presidential Election
 Prior to election for electors
 Art. II, § 1, cl. 2 = “Each state shall appoint, in such manner as the legislature thereof may direct, a number
of electors...”
 State legislatures controlled how/which electors were chosen, but not really which candidate they voted for
o Most states have law: Must be faithful to whom you pledged to vote for
o Felony in 25 states to change vote  can make it painful to not comply
o But, electors can still ignore the rule  vote counts, even if elector in jail
 Thornton – states should not interfere with electoral process, BUT penalty on electors ensures rights of
people protected
State control of Congressional Elections
 Art. I, § 4 = “The times, places and manner of holding elections for senators and representatives, shall be
prescribed in each state by the legislature thereof...”
 Constitution makes the rules for voting in Congressional elections the same as those provided by the states
for voting in state elections
 States may prohibit felons from voting in both state and federal elections
 BUT felons can run for office, probably
 S.Ct. = there are some 1st Amendment limits to states’ depriving persons access to be on the ballot
 AFTER 17th Amendment  political safeguards of state power over Congress  less robust
o Still kicking, though
o S.Ct. still thinks it is good to have in order to protect states from federal government (2 checks better
than one – just Judicial Review)
28
Cook v. Gralike = S.Ct. rejected a state’s attempt to give binding voting instructions to its federal
representatives, i.e. if they did not vote for federal term limits constitutional amendment, there would be a
notation of “disregarded voters’ instructions” next to their name on the ballot. Court found this was more
substantive than just a states’ right to prescribe time, place, and manner.
Bush v. Gore = Election for president deadlocked in Florida. Florida legislature had an established procedure,
with dates and deadlines, for counting electoral votes. After lots of litigation, where the Florida Supreme Court
extended the time period to try to create an accurate count, S.Ct. ultimately held that the procedure violated the
14th Amendment’s Equal Protection clause. In other words, one person, one vote standard is meaningless if
different counties (and ultimately different states) can have different standards for what counts as a vote.
CONCURRENCE: Rehnquist, Scalia, Thomas – Art. II, § 1, cl. 2 allows the state legislature to appoint electors,
not a state court. DISSENT: Ginsburg – It is the task of the Florida state courts to interpret Florida law and that
is what they did  championed federalism.
Thoughts on Bush
 Nonjusticiable PQ?
o Maybe should have been left to Congress to figure out those votes it would/would not count
o BUT after Baker v. Carr, if districting is NOT PQ, maybe this isn’t either
o Need for finality in determining who will be President
o Changed circumstances  change in interpretation (no chads in 1789)
 After Bush & previous precedent
o States cannot control who electors will be, or who they will ultimately vote for
o States cannot control how Congress members will vote directly OR indirectly
o Time, place, manner = very little control by states
o State courts have no power to interpret time, place, manner of elections
o No real authority of states over federal elections left
The “Dormant” Commerce Power: Early Cases
 S.Ct. has held that commerce power creates self-executing restriction on state law  “Dormant Commerce
Clause”
 Even if Congress has not exercised the commerce power in a particular area  state law in that area
preempted anyway
 Removes political safeguards and leaves only judicial review as a check on state power
 Why/How?
o If Constitution = Congress has exclusive power to regulate commerce, then any state law attempting
to regulate commerce gets trumped
o BUT if Framers wanted to make it exclusive, why not prohibit states from engaging in regulation of
commerce in Art. I, § 10 with the other state prohibitions?
o Maybe Framers thought Commerce Clause + Supremacy Clause  obvious state exclusion
o Perhaps Full Faith & Credit Clause + Privileges & Immunities Clause  states have power to
regulate within their borders, but NOT outside
 Could create evidence that Framers presumed this would prevent states from regulating
interstate commerce
 Constitutional Interpretation
o Basically, Constitution is silent/ambiguous on the issue  No Text
o History & Purpose of Commerce Clause
 Goal to prevent economic warfare between states
 Wanted U.S. = 1 economic entity
 Wanted free trade among states
 If these goals were adequately met by (awake) commerce clause, Congress is free to
step-in when necessary & no need for dormant commerce clause
29

BUT maybe Congress wants to step-in, but its too hard to pass the laws to do so and
therefore, it cannot
  dormant commerce clause necessary to ensure protection of the goals of the
(awake) commerce clause and place a check on Senators/Reps. who want to
discriminate against other states and won’t allow Congressional legislation to pass
o Dormant Commerce Clause (DCC) created by S.Ct. precedent
Gibbons v. Ogden (Take 2) = Argument was made that “to regulate” grants Congress full power over
interstate commerce and excludes the actions of the states. Marshall noted that “there is great force in this
argument” and Ogden had not refuted it. However, there was an actual statute at issue here and therefore, it,
under the regular commerce power, trumped state law.
Wilson v. Black-Bird Creek Marsh Co. = Black Bird received authorization by a Delaware statute to build a
dam in Black Bird Creek. Wilson’s boat broke through the dam in order to pass through the creek. Black Bird
sued for damages and Wilson argued the Del. law was unconstitutional because it interfered with a channel of
interstate commerce, i.e. the creek, that only federal government was authorized to regulate. The Del. law was
created under general police power for the welfare of those living near creek, a power the state enjoys. There
will not be a conflict between state and federal law if there is no federal law. The commerce power is not
exclusive to Congress, i.e. there is no dormant commerce clause.
“Selective Exclusiveness Test”
Cooley v. Board of Wardens = Penn. law required ships entering or leaving port to hire local pilot to guide them
through harbor. A violation of the law resulted in a fine of half the pilotage fee. A prior-enacted federal statute
provided that all pilots were regulated by state law until such time Congress legislated otherwise. Court found
that pilotage is local in nature and need not be regulated by a single, national plan or system. Therefore, the
S.Ct. held that in the absence of a federal law to the contrary, the commerce power does not bar state
regulation of local, commercial subject matter, but will block any state regulation of commerce dealing
with a national subject matter.
The “Dormant” Commerce Power: Modern Cases
So far...
 Court has recognized some type of dormant commerce clause
 Move away from local/national distinction
 Tendency of Scalia, Thomas, & sometimes Rehnquist to question DCC jurisprudence
 BIG NAGGING DCC ISSUE
o If Congress cared, they could regulate milk prices, apple grade stamps, fruit-wine, or half-eaten
bagels – if they have not acted, states are free to do so
o BUT Congress cannot possibly anticipate and pass laws regulating every minute detail of interstate
commerce – maybe better to have S.Ct. deal with small issues to prevent overregulation by Congress
 NOW strike down state regulation of interstate commerce that discriminates against out-of-state interests
OR favors local interests at the expense of out-of-state competitors
 Three categories of discriminatory state laws:
o Facial Discrimination
 State law that discriminates on its face
 In-state interests clearly favored over out-of-state competition
 BUT if discriminatory law serves legitimate local purpose that cannot be served by available
nondiscriminatory means  may be upheld
 Virtually per se invalid under DCC OR under “strictest scrutiny”
o Protectionist Purpose or Effect
 Even if the law is not facially discriminatory
30


Might have been intended &/or have the ultimate effect to favor in-state interests and
discriminate against out-of-state competition
 Harsh scrutiny
o Facially Neutral Laws with Indirect Effects on Interstate Commerce
 Least offensive type
 Balancing test to determine whether to strike down these laws
EXCEPTION
o If law found to be discriminatory (facially, purpose/effect, or indirectly), state has burden to justify
the law in terms of both
1. The local benefits flowing from the statute
2. The unavailability of nondiscriminatory alternatives adequate to preserve the local interests at
stake
Facial Discrimination
Philadelphia v. NJ = NJ law prohibited importation of most waste that originated or was collected outside the
state. More demand for non- NJ landfills  increased cost for citizens of states other than NJ. S.Ct. found that
the law involved “simple economic protectionism,” i.e. was facially discriminatory, and therefore per se invalid.
NJ’s intent that the law be a health/safety measure is irrelevant, neither the means, nor the ends may be
discriminatory. The NJ and PA waste is equally harmful  if NJ really wanted to create healthier situation, ban
some of the dumping of its own waste, too. Commerce clause protects other states from efforts by one state
to isolate itself in the stream of interstate commerce from a problem shared by all. DISSENT: Rehnquist –
This is merely a quarantine law (prevention of harmful substance coming into a state) and should be upheld. NJ
will be safer if it only has to dump it’s own trash.
Thoughts on Philadelphia
 Probably OK if NJ shut down ALL landfills  no discrimination against out-of-state interests
 Incentive for states to shut down all landfills  trash will go to the poorer states that need the income and
will wreak even greater havoc on the national economy
 Congress dropped the ball – waste disposal is a national problem
 Not cool for S.Ct. to make this type of policy-based decision without state input
Chemical Waste Management, Inc. v. Hunt = Ct. invalidated state law imposing a hazardous waste disposal fee
on waste generated outside the state, but imposing no fee on similar waste generated within the state.
West Lynn Creamery, Inc. v. Healy = A tax on the sale of milk to state retailers, the proceeds of which were
paid to in-state milk producers, violated the DCC because the tax was effectively imposed on only out-of-state
products.
Camps Newfound/Owatona, Inc. v. Town of Harrison = Maine law provided that charitable camps are exempt
from property tax if the campers are Maine residents. S.Ct. invalidated the law because it discriminated against
camps that cater to out-of-state children and the resulting costs are imposed on the campers’ state. Ct. rejects
the argument that non-profit organizations are not subject to the commerce clause. DISSENT: Scalia &
Thomas – DCC has no basis in the constitution. Perhaps it would be better to construe the import/export clause
to include interstate and foreign commerce.
Thoughts on Harrison
 States discriminate all the time in favor of their residents, i.e. school, welfare, etc. are only available to
residents of the state
 Cool?
o Taxpayers in a state pay for benefits that go to residents of that state
31


o States are sovereign – meaning they have borders & citizens that they must take care of
Schools are government-run, but camps are private, even if non-profit
Now, even local, non-economic activity is covered under commerce power (contrary to Lopez & Morrison
holdings that Ct. would not aggregate local, non-economic activity)
South Central Bell Telephone Co. v. Alabama = S.Ct. has invalidated a state franchise tax scheme that
permitted domestic corporations to reduce their tax liability simply by reducing the value of their stock, but
denying foreign corporations the same deal.

However, discriminatory laws may be upheld if they serve a legitimate local purpose that could not be
served as well by available non-discriminatory means...
Oregon Waste Systems, Inc. v. Dept. of Environmental Quality = Oregon charged a higher fee for out-of-state
hazardous waste because it reasoned that in-state producers of hazmat already paid taxes that helped fund
disposal. S.Ct. held that “interstate commerce may be made to ‘pay its way’” and that a facially
discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and
substantially similar tax on intrastate commerce does not offend the DCC. However, the Oregon law was
no such tax and the law was found invalid. DISSENT: Rehnquist – The 34 states with no hazmat disposal are
the ones who discriminate.
Maine v. Taylor = S.Ct. has upheld a ban on the importation of out-of-state fishing bait on a finding that the
ban had a legitimate purpose because of scientific uncertainty regarding the possible presence of parasites in
out-of-state bait shipments, which could not be served in a non-discriminatory manner.
Philadelphia v. NJ (One more thing... ) = S.Ct. suggested that certain quarantine laws would be permissible for
this reason.
Protectionist Purpose and Effect
State Barriers to Out-of-State Sellers
Baldwin v. Seelig = NY statute provided for a minimum price on milk paid to farmers by NY dealers. Seeling
bought milk in VT and was still required to pay the same minimum price. Even though the NY statute was
not facially discriminatory, because its effect was to discriminate against VT sellers (who will buy in VT if
they have to pay the same price & pay for shipping?), it violated the DCC. Goal of the commerce clause
was to prevent economic barriers between states, i.e. a state cannot economically isolate itself.
Thoughts on Baldwin
 States cannot regulate extraterritorially, i.e. NY cannot control VT by passing laws affecting their
citizens/business
 NY argued that they needed a constant and safe milk supply  S.Ct. finds this would be the exception that
swallowed the rule
 There are some limits to the Baldwin rule...
Bacchus Imports, Ltd. v. Dias = Hawaii imposed a big tax on liquor, but exempted brandy, made from a certain
shrub that is only found in Hawaii, and fruit wine (apparently grapes are not a fruit). On its face, statute
appeared to be general in nature. Because exemption was motivated by an intent to confer a benefit upon
local industry (brandy & pineapple-wine) and not out-of-state industry (brandy and wine from
mainland), the exemption was invalidated.
Thoughts on Bacchus
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

VERY unlikely that state legislature will assert that the purpose of the law is to discriminate against out-ofstate interests...
Unclear how much evidence required to show protectionist purpose
Henneford v. Silas Mason Co. = Washington state use tax (if you buy it elsewhere at a cheaper tax rate, must
pay the difference once you come home) was upheld. The use tax was a substitute for the sales tax paid by
in-state purchasers of similar goods and simply put out-of-state purchasers and in-state purchasers on
equal tax footing. Created more fair situation where retailers could compete based on price alone, and not on
sales tax that was beyond their control. Distinguished Baldwin: NY was trying to legislate another state,
Washington is merely requiring that goods bought in and shipped from other states must bear an equal burden
with goods purchased within the state.
Thoughts on Henneford
 Businesses may choose a particular state because of the sales tax laws
 Use tax discriminates against them – they no longer get benefit of their business decision
 Court is trying to respect states’ rights to protect their economic viability
 Use tax = Facially discriminatory tax that imposes on interstate commerce the rough equivalent of an
identifiable and substantially similar tax on intrastate commerce, as in Oregon Waste  neither violate
DCC
Hunt v. Washington State Apple Advertising Com’n = North Carolina law provided that any closed containers
of apples shipped into NC for sale must only be stamped with the USDA grade in order to “prevent consumer
confusion.” Washington, source of half of all apples shipped in closed containers, had always placed their own
grade on the container in accordance with stricter state guidelines. NC law, although facially neutral = serious
obstacle to sales of Washington apples in NC. The court held that the NC law had the “practical effect of not
only burdening interstate sales of Washington apples, but also discriminating against them.” No need to
rely on protectionist purpose (though fairly obvious) of the law. When protectionist purpose/effect is found,
state has burden to justify the law both (1) in terms of local benefits flowing from the statute and (2) the
unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake.
Thoughts on Hunt
 NC law = removes Washington’s legitimate advantage, i.e. higher quality apples, that it had honestly earned
 Similar to Baldwin, i.e. prevented VT from gaining advantage of its cheaper milk production
 If both NC & Washington apples appear to be the same quality (e.g. both have USDA grade A), then buy
NC because there are no shipping costs past on to consumer
State Barrier to Out-of-State Buyers
Milk Control Board v. Eisenberg Farm Products Co. = PA law requiring minimum price regulation, as applied
to a NY milk dealer who bought milk from PA producers for shipment out of state. Application sustained
because the purpose was to control a domestic situation in the interests of the welfare of producers and
consumers of milk in PA – activity affected was essentially local to PA. The effect on interstate commerce
was merely incidental to regulation of a local market. No protectionist purpose.
“Strict Scrutiny Standard”
H.P. Hood & Sons v. Du Mond = Hood = Boston milk distributor who received milk from NY producers
through three NY Plants. Hood wanted to build a fourth plant near two of the others in Troy, NY. NY
Commissioner of Agriculture and Markets denied a license for the new plant based on a NY law that provided
no licenses would be granted unless commissioner was satisfied that “issuance of the license will not tend to a
destructive competition in a market already adequately served, and that the issuance of the license is in the
public interest.” Troy was inadequately supplied with milk and denied the license. S.Ct. held that the law is
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neutral on its face, but has the effect of advancing NY’s own economic interests by curtailing the movement of
articles of commerce, and is therefore invalid. Laws limiting an out-of-state buyer’s access to in-state
resources will be invalidated, unless the state identifies a valid non-protectionist purpose for the law, e.g.
local health/safety interests, that cannot be achieved through less discriminatory means.
Thoughts on Hood
 Court will generally uphold a states’ right to impose even burdensome restrictions in the interests of local
health and safety
 Makes more sense when state is preventing importing of goods (which could be deleterious to health) than
exporting (a state would never say their products were not safe enough to be sent to another state)
Cities Service Gas Co. v. Peerless Oil & Gas Co. (1 year after Hood) = Oklahoma agency fixed minimum price
(higher than prevailing price) on all natural gas taken from a field. Most of the gas taken from the field was
destined for consumes outside of Oklahoma. Citing Eisenberg, S.Ct. held that there was no discrimination
against out-of-state interests because all gas taken from field was subject to rate. Plus, no real harm to any
greater national interest. Distinguished Hood by noting that here, out-of-state companies were not prevented
from setting up facilities to take gas from the field.
Thoughts on Cities
 Regulatory commission must have known that most of the gas  out-of-state and therefore would be
discriminatory
 Possible distinction:
o Gas is finite – if all  out-of-state, then host state at a disadvantage and must purchase gas from
another state
o Milk – indefinite, can always get more cows
o Milk not as big a revenue/job-creator as natural gas
 Philadelphia – clearly discriminatory prohibition on out-of-state waste  keeping natural resource for itself
 Hood – less discriminatory because commissioner had discretion to deny license to anyone (presumably instate or out-of-state)  still has protectionist feel, i.e. keeping resource in the state
 Cities – least discriminatory since price fix applies to everyone  only real distinction
Court  increasingly hostile view of state laws trying to keep natural resources from leaving the state
Natural Resources
Really old cases  States had ownership rights to natural resources and could regulate them
Geer v. Connecticut (1896) = Upheld a law that prevented the killing of certain game birds for the
purpose of shipment out of state, even though intrastate commerce in game birds was permitted.
Hudson County Water Co. v. McCarter (1908) = Sustained a law prohibiting the transportation of water
from NY’s rivers and lakes to any other state.
Pennsylvania v. West Virginia (1923) = S.Ct. found the requirement that all local needs for natural gas
be met before any gas would be exported was a “prohibited interference” with interstate commerce.
However, Holmes, in DISSENT, maintained that the commerce clause does not prevent a state from
giving preference to its inhabitants in the enjoyment of its natural advantages.
Hughes v. Oklahoma = Oklahoma law prohibited the export of minnows to prevent their disappearance. S.Ct.
explicitly overruled Geer and held that the law had a protectionist effect (and really was facially discriminatory)
against interstate commerce, despite a non-protectionist purpose, i.e. save the minnows. Although there would
be some local benefits to no out-of-state removal, the state had not carried its burden of proving that no
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alternative nondiscriminatory regulations (e.g. regulations requiring limits on the number of minnows taken
both by in-state and out-of-state fishers) were available, i.e. that this was a last-ditch effort to save the minnows.
The Court left some room open for state conservation of wildlife within its borders by noting that when animals
become articles of commerce, conservation may be taken up, as long as it did not discriminate unfairly between
in-state and out-of-state citizens.
New England Power Co. v. New Hampshire = State law prohibiting electricity produced in a state from being
conveyed out of the state was invalidated.
Sporhase v. Nebraska = State restriction on the export of ground water also invalidated.
Facially Neutral Laws & Court’s Balancing Test
BALANCING TEST (as succinctly stated in Pike)
“Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on
interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.”
In other words... balance
 Local benefit of law or actual safety derived from law WITH
 Effects and burdens on interstate commerce
Balancing in General
 Some justices are NOT comfortable with balancing
 Balancing is for Congress and not the Court
 Judiciary is not competent to balance the interests
o Decision is only binding on the parties before the court in the case
o Only those parties’ interests are considered
o Rest of industry may have interests that would cut the other way
o Courts do not have the resources to make policy decisions
o Undermines democratic values
 BUT... S.Ct. does become an expert over time
o Privy to case-after-case
o See the real problems that arise – not just abstract situations that may occur in the future
o Development of doctrine is much more dynamic than law enactment
 THEN AGAIN
o Maybe easier for Congress to change a law they created if things go badly than to overrule S.Ct.
precedent
o But, maybe not
Pike v. Bruce Church, Inc. (1970)= Arizona statute required that Arizona-grown cantaloupes must display their
state-of-origin on the packaging. Bruce Church is an Arizona grower who sends his cantaloupes to California to
be packaged together with CA cantaloupes – burdensome to separate them out for labeling. S.Ct. holds that the
law is facially neutral and announced a succinct balancing test. S.Ct. balanced the law’s purpose, i.e. protect
and enhance the reputation of AZ growers, with the huge burden it places on Bruce Church and the California
packing industry. The law was invalidated because the burden was clearly excessive in relation to the local
benefits
Thoughts on Pike
 Opposite requirement of Hunt
 Different tests applied  different results
o Hunt – protectionist effect found  NC cannot prohibit Washington’s sticker
o Pike – facially neutral and therefore interests balanced  AZ can’t require it’s own sticker
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Also, difference was the existing situation
o Washington had already been benefiting and NC tried to remove that advantage
o AZ was trying to create a benefit at the expense of the out-of-state packaging industry
State Burdens on Transportation
Older, traditional approach:
South Carolina State Highway Dept. v. Barnwell Bros. (1938) = SC law provided that no trucks more than 90
inches wide or greater than 20,000 lbs. could be driven on SC highways. Amounted to ban of 90% of nations’
trucks. Restriction was upheld in a very broad opinion (Stone) stating that as long as there is no facial
discrimination, the states have great latitude in regulating such “peculiarly” subjects of local concern, as state
highways regardless of the burden imposed on interstate commerce. Policy decision best left to state legislature
(or Congress if they chose to regulate) and S.Ct. will only invalidate if no “rational basis” existed for the
conclusion that regulation required for safety.
Thoughts on Barnwell
 Probably BOTH protectionist and real safety purposes
o Protectionist – in-state deliveries are more likely to be on smaller trucks  more demand for local
products
o Safety – trucks cause more accidents (especially on 2-land highways of that time), potholes, require
higher bridges, etc...
 Would NOT be upheld today
Modern approach:
Southern Pacific Co. v. Arizona (1945) = AZ law created a length limit on all trains traveling through the state
(14 passenger or 70 freight cars). Alleged purpose was to prevent derailment from “slack action” caused by
trains that were too long. J. Stone weighed the benefit of the safety measure with the burden it imposed on
interstate commerce (balancing test before succinctly announced in Pike). S.Ct. found that the heavy time
consuming and expensive burdens imposed on interstate commerce by the regulation, i.e. RR companies must
conform all trains to AZ standard OR must stop the train before and after AZ border to break-up and reconstitute the cars, clearly outweighed the marginal safety gained, i.e. splitting up the cars may make tracks
safer, but more shorter trains makes tracks just as unsafe. Plus, if length of trains is to be regulated at all, should
be national uniformity  exclusive province of Congress. Distinguished Barnwell by noting that highways are
built, owned, and maintained by the state  peculiar local concern, which RR tracks do not have – most
privately owned and operated (at least at the time). DISSENT: Black – The balancing of the safety between
more, shorter trains and less, longer trains was a decision for the state legislature. Douglas – State has province
over safety and therefore, safety measures should be presumed valid.
Thoughts on Southern Pacific
 If S.Ct. upheld law, RR  and petition Congress to get a Federal law on the matter
 By invalidating the law, S.Ct. usurped Congress’ incentive to act  changes dynamic between branches
 Court second guesses and balancing actual safety created, instead of merely upholding laws claiming safety
as their purpose  “smoke out” laws with truly protectionist purposes
 No real increase in safety tends to show a discriminatory purpose and probably effect, too
Bibb v. Navajo Freight Lines = Illinois law required trucks to have contoured mud flaps rather than straight
ones because they are safer for the cars on the road. S.Ct. held the law in violation of DCC. Because 45 other
states allowed straight mudguards and one prohibited contoured mud flaps the law was found too burdensome
and of minimal value to increasing safety on the road.
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Bendix Autolite Corp. v. Midwesco Enterprises = Majority struck down an Ohio law that provided for
unlimited tolling on the statute of limitations with respect to entities located outside of Ohio that had not
designated an Ohio agent for service of process. *CONCURRENCE: Scalia – “Weighing the governmental
interests of a state against the needs of interstate commerce is a task squarely within the responsibility of
Congress.”
The “Market Participant” Exception
 When a state functions as a “market participant” and not a regulator of the market, they are free to
discriminate against out-of-state interests, just as any private company may
 If a state is not acting as a state, then they are not subject to the usual rules
South-Central Timber Development, Inc. v. Wunnicke = Alaska owned timber and sold it for profit. AL passed
a law stating that any buyer of timber MUST process the wood within the state before export. AL was not a
market participant in the processing market, they were trying to regulate downstream through their
participation in the lumber market, i.e. place restrictions on what buyers can do after the completion of
the sale. Therefore, there was no market-participant exception and the statute was void under the dormant
commerce clause for being facially discriminatory. DISSENT: Rehnquist – Distinction between market
participant and market regulator is unconvincing.
Thoughts on Timber
 Unlike Reeves – some hint that natural resources are not like cement
 Court suggested that Alaska could get the same effect by subsidizing Alaskan processors to make it so
cheap that no one could refuse to use them
 DISSENT
o If no situation exists where a state can act for the protection of its own citizens only  no states
o But, if truly national economy, need free commerce between states
Reeves v. Stakes = Cement owned by the state only sold to state residents. S.Ct. recognized that private
businesses have long had the right to freely exercise his own independent discretion as to parties with
whom they will deal. Therefore, if state acting as a private business, i.e. market-participant, they may
discriminate.
White v. Massachusetts Council of Construction Employers = Court upheld a statute requiring that all
construction projects funded in whole or part by city funds be performed by a workforce comprised of at least
50% city residents. The restriction was ok because all contractors, in a substantial sense, are “working for the
city.”
Congressional Consent
 Congress can consent to state regulation of interstate commerce in ways that would normally violate DCC
 Why?
o Idea of DCC = Congress has NOT spoken
o No congressional consent  presume negative
o Congress can rebut the assumption by
 Passing federal commerce regulating law
 Passing law consenting to state regulation
Prudential Insurance Co. v. Benjamin = SC imposed a tax of 3% of the premiums received from all business
done in SC by out-of-state insurance companies. NJ company challenged the tax as facially discriminatory.
S.Ct. upheld the tax because Congress had specifically authorized states to regulate insurance companies in
the McCarran Act.
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Equal Protection Clause
14th Amendment, § 1 = “... No state shall... deny to any person within its jurisdiction the equal protection of the
laws.”
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States cannot discriminate on some bases, i.e. race sex, etc.
States can exclude foreign corporations from doing business within its boundaries
o BUT cannot make it more burdensome on out-of-state corporations to do business in the state
o unless the discrimination bears a rational relation to a legitimate purpose.
Metropolitan Life Ins. Co. v. Ward = Alabama passed a tax on out-of-state insurance companies similar to that
at issue in Prudential. The S.Ct. found that the tax did not violate the commerce clause because of the
congressional consent in the McCarran Act. However, the tax did violate the Equal Protection Clause and was
therefore altogether invalid.
The Privileges and Immunities Clause of Article IV
Art. IV, § 2, cl. 1 = “The citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states.”
14th Amendment, § 1 = “No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.”
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Two clauses clearly related
o P AND I = Prevent certain types of discrimination between citizens of different states
o P OR I = All states must give same rights to citizens of the US (after civil war)
People in each state are entitled to all the same fundamental rights
o Fundamental Rights = those that are sufficiently basic to the livelihood of the nation
o Examples:
 Fundamental Rights
 Right to pursue a common calling (be employed)
 Practice law in another state
 Police officers reside in city/county where they work
 NOT Fundamental Rights
 Elk Hunting  not required for smooth operation/unity of US
 No export of shrimps unless heads/hulls removed
o Probably more economic
o Can argue shrimping = job, elk hunting = hobby
NOT necessarily that all states must afford citizens the exact same rights & privileges beyond
“fundamental” rights
DCC vs. P&I
Dormant Commerce Clause
P&I Clause
Restraint on state efforts to bar out-of-staters  Restraint on state efforts to bar out-of-staters from
from access to local resources
access to local resources
Vision of Federalism
 Vision of Federalism
Grant of power to Congress by Constitution
 Rights conferral to all US citizens by Constitution
Corporations are protected
 Corporations are not protected under P&I
Congress may consent to violations by states  Nonwaivable by Congress
Controls commercial activity only
 Extends to all “fundamental rights”
“Market participant” exception when states
 No “market participant” exception
do not act as market regulators
 Standard of review somewhere between balancing test
and strict invalid per se rule for commerce clause
Standard of review = broad balancing test
challenges
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Two Step Inquiry
1. Does the law interfere with, or burden, a “fundamental right” covered under P&I clause?
If YES  Go to Step 2
If NO  P&I does not apply
2. Is there a “substantial reason” for the difference in treatment?
If YES  Law Valid under P&I
If NO  Law Invalid under P&I
States are given some deference in analyzing local evils and creating appropriate cures
But, S.Ct. will decide:
o If the “substantial reasons” exist
o Whether the degree of discrimination bears a close relation to them
MUSHY standards
United Building & Construction Trades Council v. Mayor and Council of Camden = Camden, NJ statute
provided that 40% of all employees working on city-funded projects must be Camden residents. S.Ct. in White
said this type of regulation (and worse... there 50%) is valid under the dormant commerce clause. The S.Ct.
held here that P&I applies to both municipal and state regulations, i.e. an out-of-state citizen will not enjoy the
same privileges as a NY citizen living in the city of Camden. Other NJ residents can at least remedy
discrimination at the polls, a luxury out-of-state residents do not have. Apply two step inquiry: (1) An out-ofstate residents ability to get employment on public works contracts is sufficiently “fundamental.” (2) S.Ct.
found no findings of fact in the record regarding Camden’s arguments of high unemployment in the city, middle
class flight, and out-of-state residents living off Camden revenue. Therefore, remanded to trial court to find out.
DISSENT: Blackmun – Discrimination on the basis of municipal residence penalizes in-state residents who
live in other states just as well as out-of-staters. State residents voting against the Camden law will help out-ofstate interests. P&I should not apply to municipal laws.
Thoughts on Camden
 Non-Camden voters will cause change of all city laws to require NJ residency for employment on public
works contracts
 If each city in NJ has the same law, cumulative effect is that only NJ residents get jobs in NJ
Supreme Court of New Hampshire v. Piper = S.Ct. invalidated NH court rule requiring state residence in order
to gain admission to the state’s bar, concluding that the practice of law = “fundamental right.”
Preemption of State Law
 Supremacy Clause preempts contrary state law in conflict between the state law and...
o US Constitution
o Laws made in pursuance of the Constitution
o Treaties made by the authority of the US
 Outcome in preemption cases depends on how S.Ct. chooses to characterize purposes of the state statute and
the controlling federal statute  Is there really a conflict?
 Types of Preemption
o Congress explicitly preempted state law
 Usually contains “savings clause” – tells states what powers they retain/not covered by law
 Can just state that the law overrules state law here, there, etc. – implicit what is left to states
o Congress implicitly preempted state law
 Purpose/intent of law in legislative history speaks to preemption
 Implied by breadth that nothing is left to states
o Field preemption
 Clear intention of Congress to regulate entire area of law
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 Creates regulatory vacuum
 States cannot even fill in gaps left by federal statute
o Conflict preemption
 Impossible to comply with both state and federal law
 Easiest type to recognize
o Frustration of Federal Purpose
Pacific Gas & Electric Company v. State Energy Resources Conservation & Development Commission = CA
LAW: Moratorium on nuclear power plants until the federal government created a permanent means for
disposal of nuclear waste. FEDERAL LAW: Purpose of the Atomic Energy Act of 1954 was to encourage
development of nuclear power. S.Ct. finds that Congress intended to create field preemption by regulating
all safety issues in nuclear power plants, but left all economic decisions to the states. The Federal law does
not compel creation of nuclear power plant. Therefore, no conflict, i.e. it is possible to comply with both laws.
S.Ct. holds that there was an economic purpose behind the CA law (as noted in legislative history), not
safety, therefore NOT preempted by AE Act. Court refuses to second-guess the true reason for the law here
(but they do it all the time in DCC analysis.) As to frustration of purpose – Court held that the goal of the AE
Act appears to be creation of nuclear power plants. If Congress is not happy with how states are
participating in this area of the law, they can act to unfrustrate their purpose.
Rice v. Santa Fe Elevator = S.Ct. will assume that the state’s police power is not trumped by federal law unless
Congress clearly meant solely occupy a particular area, i.e. field preemption. Presumption against preemption.
Why Rice rule?
 State law applies unless Congress says otherwise (Cf. Erie)
 Requires Congress to be very clear about their intentions (makes S.Ct. job easier)
 If Congress is not clear  leaves judiciary to decide purpose of federal law – may have binding effect later
 Maybe even creates judicial policy-making/legislation – interpretation of purpose = re-write law
 State law = background law
o Being clear reinforces Constitutional structure of federalism
o Facilitates political safeguards  If too vague, easier to pass 2/3 and let Judiciary figure it out
o Want state input (through representation) on what federal laws will trump state laws
 Clarity AVOIDS dormant commerce clause problem, i.e. courts decide for themselves when to preempt
Hines v. Davidowitz = True test for conflict preemption standard: Does the state law stand as an obstacle to
compliance with the federal law based on the circumstances? S.Ct. must examine all of the facts and
circumstances surrounding enactment of law to determine if a state regulation prevents the accomplishment of
the purpose Congress had in regulating a particular area.
Florida Lime v. Avocado = FL meets US standards for avocados. California has stricter standards and Florida
Lime cannot sell there. S.Ct. found that the federal law is a minimum standard, i.e. the floor, on avocado
quality. Therefore, no conflict since both laws have the same purpose of getting better avocados in the market.
S.Ct. ultimately held that where simultaneous compliance with both a state regulation and a federal
regulation is impossible, the state regulation is preempted.
Gade v. National Solid Waste = Illinois provisions for workers handling hazardous wastes were preempted by
federal OSHA regulations, even though the federal regulations aimed only at worker safety and the state
regulations aimed both at worker safety and health. S.Ct. found that the federal regulation was both a minimum
and a maximum, i.e. states cannot add requirements on top of the federal law. DISSENT: Souter – No clear
intent by Congress to preempt – no preemption.
Foreign Affairs Conflicts
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Crosby v. National Foreign Trade Council = Federal government passed sanctions on Burma (Myanmar) and
Massachusetts passed a law barring state entities from buying goods from companies doing business with
Burma. S.Ct. unanimously invalidated the law because it interfered with the ability of Congress and the
President to conduct foreign policy with Burma. Foreign policy is an exclusive power of federal government
(Federalist = 1 US foreign policy, otherwise, not a country).
SEPARATION OF POWERS
 General:
o Structure of Constitution = Three Branches  Implies SOP
o Checks & Balances = Aspect of SOP even though really intermingles the powers
 Mostly cases where one branch trying to evade or circumvent checks & balances
The Limits of Executive Power
 Example: Court-Packing Plan
o Interference with Judiciary by Executive
o Or at least Senate thought so
Youngstown Sheet & Tube Co v. Sawyer (The Steel Seizure Case) = During the Korean War, President Truman
ordered Secretary of Commerce Sawyer to take possession of the nation’s steel mills and keep them running to
prevent a steelworkers’ strike. S.Ct. held (an unprecedented month after the case was heard at the DC) that the
President was not authorized to order the seizure of the steel mills. No act of Congress permitted the action and
in fact, the legislative history of the Taft-Hartley Act indicated (by failed amendment) that Congress specifically
chose not to so authorize the President. There is no Constitutional power to seize private property. President
usurped the legislative power of Congress by trying to execute a law that did not exist. CONCUR:
Frankfurter – Important to look beyond constitutional text for a Presidential tradition. Here, there is none.
Jackson – Executive acts fall into 3 categories: (1) Acts pursuant to express or implied authorization of
Congress; (2) Acts on which Congress is silent or there is concurrent authority, and (3) Acts incompatible
with the express or implied will of Congress. President’s act here was in category 3 and can only be
sustained if a seizure power is within the power of the executive and outside the power of Congress. But, power
to legislate (even in emergencies) belongs to Congress. Therefore, President was not authorized to seize steel
mills. DISSENT: Vinson – President acting to implement legislative program called Korean War.
Thoughts on Youngstown
 President argued
o Executive powers
 Constitution silent on definition of “executive power”
 Oversee well-being of country
 ONLY by enforcing laws of Congress and upholding Constitution
 Needs lots of subordinates
 Power to hire, supervise, and fire them
 Ensure President is ultimate decision-maker in how laws are enforced
 Laws = only those made by Art. I, § 7
 Executive Branch = 1 person  implies emergency powers
 NO N&P power in Executive – anything outside enumerated powers that falls into federal
government  Congress
o Commander-In-Chief power
 Power over those “called into actual service”
 Only Congress can raise & support armies –  call people into service, e.g. draft
 BUT steelworkers and owners are not part of military
 Can argue “service” = service of the US
 S.Ct. holds President = commander of military, not country
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JACKSON’S CONCURRENCE
o Three Ways for President to Act
 President acts on a Congressional law
 If unconstitutional, Congress’ problem, not Pres fault for enforcing it
 President acts on his own without federal law, but with his own power  twilight zone
 Area of power for both Pres & Congress
 President acts against Congress’ will
 Congressional silence + failed amendment does not necessarily show that they
disapprove
 Could be lots of reasons for amendments to fail
Executive Power over Foreign/Military Affairs
Art. II, § 3 = Power to send and receive ambassadors
i.e. recognize foreign governments as legitimate power
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Types of Agreements with foreign countries
o Treaties
 Supremacy Clause = Treaties made by authority of US  supreme law of the land
 Requires 2/3 of the Senate
 Some subjects MUST be by treaty  not clear what, though
 Probably all mutual-military agreements
 President can unilaterally terminate treaties
o Congressional-Executive Agreements (really just laws)
 Agreement made by President & ratified by both houses
 Only need majority in each house
 Ex. NAFTA
 Usually provides for termination
o Executive Agreement/Order
 President acts alone
 Supreme law of the land?
 Depends on context
 Agreement to recognize government probably OK since President has power anyway
 Agree to seize steel mills – probably NOT OK since President does not have this
power normally and it is NOT a foreign affairs power
 No explicit power in Constitution to create orders/agreements
 Implied as part of send & receive ambassadors?
 NO CHECKS – President acts ALONE
 Limits?
US v. Belmont = President made an executive agreement to recognize USSR in 1933, k.a. Litvinov Agreement.
The US was assigned all Soviet claims against Americans who held funds of Russian companies seized after the
Revolution. Suit brought by US to recover funds deposited by Russian corporation with private NY banker.
State law = no taking of private property without just compensation. S.Ct. held that the executive agreement
trumps the state law.
Thoughts on Belmont
 States have NO power in foreign relations and therefore always overruled in these cases
 Here, claim assignment was probably incidental to and necessary for President to recognize USSR
 Property only held by US company, but really belonged to USSR  no taking
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Dames & Moore v. Regan = Dames & Moore had suit pending against Iran in which DC had attached property
of certain Iranian banks. Hostages released pursuant to Executive Agreement where US promised to eliminate
all litigation between US/Iranian governments and citizens of the other country and settle all claims through
binding arbitration. Furthermore, all attachments would be released. President Carter issued executive orders
implementing the Agreement. President Regan took office and “ratified” the agreement/orders. S.Ct. held that
President had power to suspend claims of citizens because it was necessary to avert major foreign policy
disaster and Congress had acquiesced. Hostage Act and International Emergency Economic Powers Act
(IEEPA – law dissolved attachments after taking all of Iran’s assets and crating funds to settle arbitration
results) did not specifically authorize suspension of claims but indicated acceptance by Congress of a broad
scope of presidential powers in these circumstances and no explicit congressional disapproval. Established
international practice to settle claims between countries and Congress has always agreed.
Thoughts on Dames & Moore
 OK to dismiss claims since there is an alternative forum
o BUT… binding arbitration is not the same as US court
o Better than nothing
 Really question of how to implement Executive Agreements
 President needs authority in negotiating foreign affairs – don’t want Iran to think agreement is not going to
happen and maybe kill hostages
 Limit to President’s power to agree?
o Maybe nonjusticiable
o Congress could not fund the tribunal
o Voters could remove President
o S.Ct. holds no plenary power to settle foreign claims
 President usurped legislative power (no Congressional consent to EA) AND judicial power of Art. III courts
 Youngstown vs. Dames & Moore
Youngstown
Dames & Moore
 Domestic Relations
 Foreign Affairs
 No explicit statutory authority + Congress denied
 Statutory authority for President to dissolve
President similar authority in legislative history
attachments (IEEPA) + similar schemes existed
 Not quite a crisis
 Closer to crisis – lives on the line
President’s War Power
1973 Congress passed War Powers Resolution
 Why?
o Reign in President
o No troops without Congressional approval/declaration of war
o Ensure both President & Congress involved in deciding when to go to war
o Fills gap left between what happens when Congress has not declared war, but there is a conflict
 Nixon vetoed & Congress overrode
 EVERY president since has given notification, but complained about it
 Provisions
o Outlines when President may use troops
o President must send Congress a report within 48 hours
o Report = why he used troops
o President must terminate the use of troops at the end of 60 days if
 Congress has not extended the time
 Congress has met and has not granted authorization for continued action
 Constitutional?
o YES
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Framers did not recognize the way troops would be used today, i.e. without declaration of
war
1789 = introducing troops into a country is an act of war
1st Part OK – committing troops to battle is Congress’ job
Declaring war = lawmaking
Decide best course for country & give President authority to execute that law/will
o NO
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 Micromanages Presidents C-I-C power
 2nd Part goes too far – after committing troops  President’s power to orchestrate war
 Congress no longer involved
Maybe gave Congress less power since now President clearly free to act for 2 months (and maybe
longer) without Congressional consent
Constitution = President can only use troops in an emergency created by an “attack on the US”
Probably PQ – nonjusticiable
Congressional Attempts to Evade Federal Lawmaking Procedures
Non-Delegation Doctrine
 To what extent may Congress delegate its legislative power to other actors?
 Only 2 cases where S.Ct. invalidated statute for violating non-delegation doctrine
 Congress must provide sufficient legislative guidance, i.e. an “intelligible principle”
A.L.A. Schechter Poultry Corp v. US = National Industrial Recovery Act (NIRA) allowed president to
implement codes of fair competition, i.e. regulations of the poultry industry. S.Ct. held the act went too far and
allowed President to make laws.
Panama Refining Co. v. Ryan = S.Ct. invalidated another NIRA provision because it gave the President no
guidance over how he should exercise the policymaking discretion.
Touby v. US = S.Ct. announced “intelligible principle” standard where as long as Congress lays down an
“intelligible principle” to which the person or body authorized to act is directed to conform, such legislative
action is not a forbidden delegation of legislative power.
National Broadcasting Co. v. US = Regulation of public airways upheld where statute provided for agency
action “in the public interest.”
US v. Curtiss-Wright Export Corp. = Congress passed statute authorizing President to prohibit the sale of arms
and munitions to Bolivia and Paraguay (as they were involved in an armed conflict). S.Ct. held delegation of
this decision to President is cool since it falls within foreign affairs power.
Whitman v. American Trucking Association = ONLY RECENT CASE on N-D Doctrine. Congress delegated
the EPA (executive administrative agency) to set primary ambient air quality standards to protect public health
by an “adequate margin of safety.” S.Ct. held that the scope of discretion is within the limits of nondelegation precedents, i.e. Congress has given the EPA an intelligible principle to go on. Ct. says they are
uncomfortable second-guessing Congress’ decision to grant discretion to those executing the laws. CONCUR:
Thomas – Constitution only says “all legislative powers” vested in Congress – no intelligible principle standard.
Stevens – Should just acknowledge that Congress can delegate legislative power to the executive. Don’t even
bother calling it executive power.
Thoughts on Whitman
 Why delegate?
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o Take advantage of EPA expertise
o More efficient since agency can act quickly and respond to changing needs
o Congress wanted to pass on accountability for unpopular standards
But shouldn’t Congress make legislative decisions?
o EPA enacting regulations is exercise of executive power – merely enforcing statute
o VERY hard to characterize power as entirely legislative or executive – not clear when line crossed
o Majority says depends on who is acting
Maybe non-delegation jurisprudence has strayed too far from founders understanding of SOP
Government too big for Congress to make all decisions – need agencies
Letting EPA legislate (or execute…) gives President supervisory power over that legislation
o President has supervisory power over EPA to ensure that the law is “faithfully executed”
Structures of constitution (bicameralism and presentment)  prevent excessive lawmaking
o If agency goes overboard with regulation, Congress could try to pass law to repeal rule
o If either house or President disagrees, regulation still in effect
o Congress NOW realizes that if they give away too much power (broad delegation) they can’t get it
back without approval of President  incentive NOT to delegate
Bicameralism & Presentment
Art. I, § 1 (Bicameralism) = “All legislative powers herein granted shall be vested in a Congress of the US,
which shall consist of a Senate and House of Representatives.”
Art. I, § 7, cl. 2 (Bicameralism & Presentment) = “Every bill which shall have passed the House of
Representatives and the Senate, shall, before it become a law, be presented to the President of the US…”
INS v. Chadha = Chadha was a student whose visa had expired. INS said he could stay, i.e. suspend
deportation, for reasons of “extreme hardship” as provided under the Immigration and Nationality Act. The Act
further allowed one house of Congress to invalidate a suspension by the executive branch by resolution. Year
& a half later, House passed a resolution overruling Atty. General’s decision to let Chadha stay. Chadha
challenged the act. S.Ct. held that one house of Congress cannot act unilaterally to invalidate a decision
by the executive branch. Constitutional requirements of bicameralism (must pass both houses) and
presentment (President must sign/veto) apply to all Congressional resolutions, i.e. this is the ONLY way to
make law. CONCUR: Powell – Narrower ground would do, i.e. that Congress performing a judicial duty by
determining that Chadha did not meet the statutory requirements for deportation suspension. DISSENT: White
– This is a long-standing practice of Congress and today’s decision will invalidate almost 200 similar legislative
veto provisions.
Thoughts on Chadha
 Redundantly unconstitutional
o Congress cannot legislate in this manner – violates Art. I
o Congress cannot second-guess enforcement by President – violates Art.
o Congress cannot apply law to a particular case – violates Art. III, i.e. interferes with judicial branch
 Once Congress gave away the policy judgment about who meets the requirements, can’t get it back
 MAYBE since 1-house veto was part of bill, just reserving their power
 Presumption of type of power based on who is acting
o When Congress acts to change legal rights, duties and relations of persons (including Atty. General,
President, agencies, citizens, etc.) presume they are making laws & therefore, must follow Art. I, § 7
 Chadha vs. Whitman
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Chadha
Congress can’t keep power to supervise executive
Formalistic Decision
Can give power away, but once it’s gone, it’s gone
President’s activity like lawmaking, but really
execution of “law” over which Congress gave him
power/discretion
Congress delegates judicial OR executive power to
itself – can’t delegate a power you do not have
NO problem of line-drawing – Congress never
executes and can never legislate outside Art. I, § 7
One house of Congress cannot act to change rights
and duties of public outside Art. I, § 7 process
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Whitman
Congress can delegate broad authority to executive
Functional Decision
Can give power away
Admit CFR = legislating power, but times change,
so President can do it
 Congress delegates its legislative power to
executive – a power it has
 Any time executive applies law = discretion & hard
to say when discretion  lawmaking
 If law has “intelligible principle” action is executive
Clinton v. NY = Line Item Veto Act = President can strike spending items out of appropriations bill IF it is a (1)
dollar amount of discretionary budget, (2) new, direct spending, or (3) limited tax benefit. President assumed to
have not vetoed the entire bill after usual 10 days (he didn’t return it) and then gets 5 extra days to tell Congress
which items have been vetoed. Congress the has a chance to override by disapproval bill (needs majority of
both houses). The disapproval bill is a regular bill and President can (& will) veto it. NOW to override the
regular veto, Congress needs 2/3 of each house. President Clinton vetoed money from cancel a provision
nullifying a NY debt owed to the federal government as part of Medicaid AND a tax benefit to food processors.
S.Ct. invalidated line item veto act because it effectively allowed the president to unilaterally repeal an act of
Congress. Repeal, like enactment, must comply with Art. I, § 7. Veto occurs before bill becomes a law.
LIV occurs after bill is enacted. CONCUR: Kennedy – Act was a good idea to restrain government spending,
but still unconstitutional. DISSENT: Scalia – No different from authorizing President to decline to spend
allocated funds, which is constitutional and has been done for 100s of years. Breyer – All President is doing is
exercising power explicitly granted to him in previous statute.
Thoughts on Clinton
 GW given bill that combined appropriations and non-germane riders
 GW decided he must accept/reject entire bill in the form Congress sent it
 Congress could have given President discretion to spend or not spend  constitutional
 Why not?
o Wanted to pass the buck – President accountable
o Wanted to bind later Congress’ to decision not to spend
o Thought this would held reduce deficit
 40 States = LIV law
Congressional Interference with Executive Powers
How does President execute laws?
 Prosecute federal crimes
 Instructs Atty. Gen to supervise US Attys.’ prosecution to ensure compliance with President’s policy
 President has power to hire & fire subordinate executive officers who do not comply
o Art. II, § 2, cl. 2 = appointment power
o Constitution silent on removal power
 EXCEPT impeachment for high crimes and treason – Congress’ role
 Important that President have removal power over executive officers
Art. II, § 2, cl. 2 (Appointment Power) = “[President] shall nominate, and by and with the advice and consent of
the Senate, shall appoint ambassadors, other public ministers and consuls, Judges of the supreme court, and all
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other officers of the US whose appointments are not herein otherwise provided for, and which shall be
established by law, but the Congress may by law vest the appointment of such inferior officers, as they think
proper, in the President alone, in the courts of law, or in the heads of departments.”
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“Inferior officers”
o All officers under supervision of a principal officer
o Congress may vest power of appointment in President alone
o Ex. US Atty’s under Atty. General, therefore inferior, but very important, so Congress keeps
appointment power by requiring Senate consent
Principal officer
o All those who President must appoint with Senate
o Ex. department heads, Attorney General
Buckley v. Valeo = Congress created the Federal Election Committee (FEC) where President, Speaker of
House, and President of Senate appointed 1/3 members each. S.Ct. finds this unconstitutional since Congress
cannot vest appointment in itself. Congress only has an advice and consent role. SOP problem – if Congress
can create law and choose those who enforce it, draw power into their impetuous vortex.
Bowsher v. Synar = Congress passed Balanced Budget and Emergency Deficit Control Act requiring
Comptroller to receive a report stating where and to what extent the budget should be cut if the deficit exceeded
the maximum. President was then required to issue an order effecting the Comptroller’s recommendations,
unless Congress distributed the cuts differently within specified period of time. Comptroller chosen by
President from a group of three provided by Congress and removable by impeachment or joint resolution of
Congress, subject to presidential veto. S.Ct. held that it is a violation of SOP for Congress to impose
executive functions on an officer over whom Congress has the power of removal. Congress may only
remove executive officers by impeachment for “treason, bribery or other high crimes and misdemeanors,” not
by joint resolution for “inefficiency, neglect of duty, or malfeasance” as the statute provides. If Congress can
remove the Comptroller, they have power over the execution of the laws. BIG SOP problem of officer
subservient to Congress directly telling President what to do, i.e. Congress maintains a huge power over
execution of the Act.
Thoughts on Bowsher
 Default Position = NO budget cuts unless Congress goes through Art. I, § 7 process
o Burden of Inertia – very difficult to get legislation passed
 Under Act, there are budget cutes unless Congress creates another bill to override Comptroller
o Burden of Inertia – very difficult to unpass legislation
 If legislative power, must be by Art. I, § 7
 If executive power, must be subject to Presidential control & discretion, i.e. removal by President
Washington Airports Authority v. Citizens = Congress wanted to give National Airport to VA and created a
committee to oversee the change. Members of the committee were all congress-people. S.Ct. held that there
was either a Chadha or Bowsher problem, but either way, it was unconstitutional.
Myers v. US = S.Ct. invalidated a law where postmasters could not be removed by the President without
consent of Senate. Since selection by President of administrative officers is vital to ensure that they act
under his direction to execute the laws, he should have sole power to remove them, with the only
exception of impeachable offenses.
Humphrey’s Executor v. US = S.Ct. upheld restriction on President’s power to remove officers within the
Federal Trade Commission, an administrative agency, because the agency did not perform core executive
functions. Agency had quasi-judicial and quasi-legislative powers, too. Distinguished Myers as merely
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holding that President has unrestricted power of removal over officers that carry out purely executive
duties.
Morrison v. Olson = Congress passed the Ethics in Government Act providing for an independent counsel,
appointed by the judicial branch, to investigate and prosecute crimes by certain government officials.
Independent council would be appointed at request of Atty. General, after receipt of relevant information and a
preliminary investigation. Counsel could only be removed by Atty. General for good cause or by Congress in
impeachment. S.Ct. held that the Act was constitutional and did not violate SOP. President retains
sufficient control over Counsel, who is an inferior officer, because Atty. General, who is supervised by
President, has removal power. No attempt by legislative or judicial branches to usurp executive functions
because their roles in appointment and removal are constitutional and minimal, i.e. inferior officers may be
appointed by Courts. DISSENT: Scalia – Counsel performs executive function and therefore entire control to
appoint/remove him/her should be in President.
Why did Congress create independent counsel?
 Easier to investigate high officials
 Way to avoid burden of impeachment
 Congress gets credit if investigation  impeachment, but no blame if nothing turns up
 Two alternatives to IC
o Congress investigates through impeachment
 If misconduct, over-investigating, Congress is accountable
 If people = not impeachable offense  vote ‘em out of office
o President appoints Counsel
 If under-investigating, President is accountable & looks guilty
 After Clinton Impeachment – Act expired in 1999 and not re-passed
Mistretta v. US = Congress passes federal crimes with a broad range of possible sentences and leave large
discretion up to Judges. This led to inconsistent punishments. Congress then set up the US Sentencing
Commission made up of 7 members, 3 of which were Judges, appointed by President with advice & consent of
senate, all of which President could remove for cause. The USSC created sentencing “guidelines” that would
be binding on Judges unless Congress passed contrary law. S.Ct. first held that Congress gave an “intelligible
principle” to make rules based on federal law and therefore, commission did not violate non-delegation
doctrine. Since rulemaking is a proper subject for the Judicial branch, i.e. can promulgate procedural rules,
sentencing guidelines are procedural and therefore constitutional. DISSENT: Scalia – This is lawmaking.
USSC has no other purpose than to create sentence “law.” Agencies only make rules incident to execution of
the laws. (JV Congress)
Executive Privilege & Immunities
Art. II, § 6, cl. 1 (Speech & Debate Clause) = “The Senators and Representatives… shall in call cases, except
treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their
respective houses, and in going to and returning from the same; and for any speech or debate in either house,
they shall not be questioned in any other place.”
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Congress members immune when speaking during their official duty
o Not huge big deal if 1/535 members of Congress get some specific immunities
Constitution silent on Presidential Immunity
o More problematic to give 1 person complete immunity  tyranny
o Framers assumed President would never prosecute himself (duh), therefore privilege not an issue
To what extent is President subject to judicial action during his term?
o Criminal Suits
 No absolute privilege of confidentiality for all presidential communications when other
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Absolute privilege for Presidential communications to protect military, diplomatic, or
national security secrets
 Presumption of Presidential privilege over communications can be overcome by prosecutor
 Sitting President probably has to be impeached before he can be tried criminally
 President would never OK his own indictment/prosecution
 Independent Counsels in Nixon and impeachment of Clinton = must impeach first
 Can President pardon himself?
 President free to pardon other people BEFORE prosecution
 Probably could pardon himself – plenary/complete power in Constitution
 PLUS probably nonjusticiable
o Civil Suits
 President holds an absolute immunity from civil liability for his official acts even after he is
no longer in office
 If no immunity – President has to second guess all his decisions
 Creates frozen state where President can’t act
 Most Presidential actions have an adverse effect on somebody
 Needs ability to make quick decisions
 Same immunity for JUDGES
 NO immunity, not even privilege of postponement, from civil liability (or litigation) for
unofficial acts
 s entitled to their day in court
 No real chance that there will be a spate of lawsuits against the President (none so far)
 If frivolous, DCs can easily & quickly deal with it
 Highly unlikely to take up THAT much time
 President has tons of attorneys who will do the work for him

Impeachable Offenses = High Crimes & Misdemeanors
o High Crimes & High Misdemeanors?
o High Crimes & Misdemeanors?
o Should standard vary depending on officer impeached?
 Constitution says NO… impeachment is impeachment
 Procedural difference – if President, CJ presides
o Who decides?
 Congress impeaches so they should decide
 Political safeguards – if public thinks offense was not a high crime  vote ‘em out
 BUT vague constitutional standard  S.Ct. good at interpreting constitution
 Maybe Congress decides, but it is reviewable?
 Probably not… need for finality and certainty over who is the President
 In (Judge) Nixon v. US (crazy drunkard impeachment) S.Ct. found impeachment
nonjusticiable – Scalia in dissent said nonjusticiable PQ (really two branches need to
duke it out) unless Congress decides based on a coin toss or because officer is “bad guy”
o President Johnson
 Articles of Impeachment = Removed Secretary of War without Congressional approval
 Acquitted by 1 vote
o President Nixon
 3 Articles of Impeachment
 Misuse of Office
 Disobeying a subpoena from Congress
 Resigned before impeachment
o President Clinton
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Article of Impeachment = Perjury
 Lots argued that perjury is NOT a high crime
Acquitted
US v. Nixon = Nixon refused to turn over tape recordings and documents which were subpoenaed in the course
of the Watergate investigation arguing that it was critical to maintain the confidentiality of the president’s
communications and that SOP prohibited the judicial branch from evaluating privilege claims and forcing the
executive to produce such communications. S.Ct. held there is NO absolute privilege of confidentiality for all
presidential communications. Presidential privilege is justiciable because there is a clear standard. Prosecutor
met all requirements for subpoena, easy to see that President is in contempt. There is a presumption of
Presidential privilege, but prosecutors can show that the Presidential communications are essential to the case
and justice. Courts should give the communications utmost respect and carefully decide what evidence is
necessary and what should remain sealed. May be an absolute privilege of communications dealing with
military, diplomatic, or national security secrets.
Nixon v. Fitzgerald = Fitzgerald lost his position with the Air Force allegedly because he was a critic of the
administration. Sued President Nixon for civil damages. S.Ct. held that the President holds an absolute
immunity from civil liability for his official acts, at least when Congress has not expressly provided otherwise
by statute.
Clinton v. Jones = Jones filed a civil suit against President Clinton for defamation, IISED, and deprivation of
federal civil rights under color of state law for sexual advances he made to her before his presidency. Clinton
wished to postpone the civil suit until after he left office. S.Ct. held that a sitting President does not enjoy
temporary immunity from all civil lawsuits based on his unofficial acts. A civil suit taking place during
Presidency does not violate SOP, i.e. no real judicial interference with functioning of executive branch just
because President must devote time and energy to suit brought against him. CONCUR: Breyer – Courts should
be required to schedule the case so as to not interfere with President’s official duties.
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