Ways to Interpret the Constitution:

1. Textual
2. Structural
3. Originalist
4. Precedential
5. Historical Practice
6. Prudential

JUDICIAL POWER ESTABLISHMENT

Judicial Review
o Power of Judiciary
Marbury v. Madison
o SCOTUS Review of State Action
Hunters Lessee
o Exclusivity in Constitutional
Interpretation
Cooper v. Aaron
Judicial Review Doctrine
Courts have power to invalidate govt action violating
the Constitution
Review of Federal Action
Inferred power:
o Art. III grant of judicial power to SCOTUS &
inferior courts
SCOTUS power to say what the law is

Review of State Action [ART. IV]

Federal judicial power over acts of state officials
Supremacy Clause (Art. IV)
State ct. must made decisions in conformity w/ U.S.
Constitution Art. IV
Cases arising under the Constitution = reviewable by
SCOTUS (Art. III)

Source of Judicial Power:

Art. III Judicial Power = vested in the Supreme Ct.
& inferior fed. Courts created by Congress
o Art. III, 2 Cases or Controversies =
within jurisdiction
SCOTUS
o Art. I Congress established

Supreme Court Jurisdiction:

Original Jurisdiction
o Art. III, 2 all cases affecting
ambassadors...and those in which a State
shall be a party
o Cannot be enlarged or diminished by
Congress
Appellate Jurisdiction:
o Vested by Art. III, 2 & subject to
congressional exceptions
Discretionary Review
o SCOTUS review of lower ct. decisions =
discretionary

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 JUDICIAL POWER LIMITATIONS
Justiciability Constitutional Limits on Judicial Review:
Constitutional 11th Amendment
Standing o No judicial power to suits against states or its agencies by citizens of
o Lujan another state or country or by its own citizens
o Mass v. EXCEPTIONS: state waiver of sovereign immunity, violation
EPA of 14th Amendment, unconstitutional acts of state officials
Prudential Case or Controversy
Standing o Case must be in adversary form capable of judicial resolution
Mootness No Advisory Opinions by Art. III fed. Ct.
Ripeness
Political Justiciability
Question
o Baker v. Constitutional Standing:
Carr 1. Injury in Fact
a. Personally suffered or will suffer
b. Invasion of legally protected interest
c. Concrete, particularized, actual, imminent (Lujan)
2. Causation
a. Fairly traceable the defendants act (Mass v. EPA)
3. Redressability
a. There is a Remedy at law Requested remedy must be allowed
(Lujan)

Prudential Standing Congress can Override

1. 3rd Party Standing
a. EXCEPTION = Craig v. Boren If sufficiently close relationship btwn
plaintiff & 3rd party then permitted
2. Generalized Grievances
a. EXCEPTION = Flast v. Cohen Taxpayer can sue in capacity of being
a taxpayer under Establishment Clause
3. Zone of Interest

Mootness
Live controversy no longer exists Decision would have no practical effect
in achieving desired result
o EXCEPTION:
Capable of repetition, yet evading review
Ripeness
Cases not ready for decision premature adjudication
o EXCEPTION: declaratory judgment; injunctive relief

Political Question Doctrine:

If matter is ministerial, ct. doesnt have power to order officials to do
something
Introduced in Marbury v. Madison
o Distinction drawn btwn. Discretionary Political Acts & Duties of
Political Actors
Courts can decide cases w/ political issues (Bush v. Gore)

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 LEGISLATIVE POWER
SOURCES & SCOPE OF POWER
1. Express Powers:
a. Art. I, 8 Expressly grants specific powers
to Congress
2. Implied Powers:
a. Art. I, 8 Necessary & Proper Clause
i. Congress can pass laws to achieve its
express powers
3. Inherent Powers:
a. Congress has NO inherent domestic
legislative powers (but there are inherent
foreign affairs powers)
4. Delegation of Powers:
a. Congress can delegate legislative authority so
long as it gives standards to guide use of
powers
th
5. 10 Amendment:
a. Powers not delegated are reserved to the
states
6. The Supremacy Clause:
a. Art. IV, Cl. 2
i. Constitutional national laws override
state laws when there is a
controversy

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 LEGISLATIVE POWER
Federalism
o Sovereignty
McCulloch v. Maryland
U.S. Term Limits v. Thornton
o Limits of Necessary & Proper Clause
Comstock
Standard: statute must be rationally
related to the implementation of a
constitutionally enumerated power
Commerce Clause
o Pre-New Deal
Gibbons v. Ogden
Hammer v. Dagenhart (Child Labor Case)
o New Deal
Schechter Poultry
Knight
Carter
o After New Deal
NLRB v. Jones
Darby
Wickard
Heart of Atlanta
Katzenbach
Garcia
o Contemporary Commerce Power
Lopez
Morrison
Gonzales v. Raich
NFIB v. Sebelius
o 10 Am. Limitation
th

NY v. US
Printz
State Sovereign Immunity & 11th Amendment
Taxing Power
o Bailey v. Drexel Furniture (Child Labor Tax Case)
o NFIB v. Sebelius
Spending Power
o Butler
o Dole
o NFIB v. Sebelius
Dormant Commerce Clause
o Philadelphia v. New Jersey
o Dean Milk
o Solid Waste Management
Privileges & Immunities Clause

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 LEGISLATIVE POWER
Ways to Interpret the Commerce Clause:
1. Textual
a. Art. I, 8, Cl. 3
b. Art. VI Supremacy Clause
2. Structural
3. Originalist
4. Precedential
5. Historical Practice
6. Prudential
a. Substantial Effects Test
b. Economic v. non-economic
c. Direct v. Indirect
d. Jurisdictional Nexus
e. Stream of Commerce Test
f. Congressional Findings
g. Activity v. Inactivity
h. National Police Regulation
i. Congressional Findings
j. Comprehensive
Congressional Scheme
Justice Marshall on Scope of Commerce
Power:
Commerce, undoubtedly, is traffic,
but it is something more: it is
intercourse reaching into the
interior of each state, allowing
Congress to regulate intrastate
activities that affect the States
generally (Gibbons v. Ogden)
Rests on Pre-Emption Grounds
o Supremacy Clause of Art. IV
COMMERCE POWER
Congress Can Regulate:
1. Channels (If subject of traffic, then subject of
commerce The Lottery Case)
2. Instrumentalities (Interstate carriers as instruments of
interstate commerce The Shreveport Rate Case)
3. Local Activities in Stream of Commerce
4. Interstate Commerce
5. Intrastate Activity
a. Substantial Effect (Gonzales v. Raich)
i. Even if not commercial and is purely
intrastate activity
Congress CANNOT Regulate:
Economic Inactivity (NFIB v. Sebelius)
Doctrines Supporting Local Regulation:
Substantial Effects
o Congress can regulate local activity if rationally
that activity has a substantial effect on
interstate commerce
o Deference given to Congressional judgment
Look at aggregate impact of all
regulated activity
National Police Regulation
o Congress may regulate activity that pollutes
commerce (Champion v. Ames)
Contemporary Limits to Permissibility of Local Regulation:
1. Jurisdictional Nexus
o Statute must expressly refer to interstate
movement/a jurisdictional element
2. Congressional Fact Finding
o Not sufficient on its own
3. Causal Relation btwn Regulated Act is Remote or
Attenuated
4. Regulation intrudes on areas of state concern
Levels of Scrutiny When Analyzing Congressional Act:
1. Rational Basis
a. Most deferential to Congress Dont need
compelling state interest
2. Intermediate Scrutiny
3. Strict Scrutiny
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 LEGISLATIVE POWER
JUDICIAL LIMITS ON COMMERCE POWER
1. Direct vs. Indirect Effects Test
a. Does activity have a direct or indirect effect on
interstate commerce?
i. Manufacturing = indirect/incidental effect on
commerce NOT regulated (Sugar Trust
Case/Knight)
2. Substantial Economic Effects Test
a. Is there a close and substantial relation to interstate
commerce that the control is essential and appropriate
to security, efficiency, and maintenance? (The
Shreveport Rate Case/Texas Railway)
3. Stream of Commerce Test
a. Is activity within the stream of Commerce/in
interstate commerce? (Swift v. US)
4. National Police Regulation
a. Commerce power can be used to halt objectionable
commodities or transactions Responsible for the
safe, free, uninterrupted flow of commerce between
states (The Lottery Case/Champion v. Ames)
5. Congressional Findings
a. Not required, but absence of congressional findings
would be unhelpful to governments defense (U.S. v.
Lopez)
6. Jurisdictional Nexus
a. Does statute expressly refer to/require proof of
interstate movement? (U.S. v. Lopez)
7. Traditional State Autonomy
a. Is exercise of commerce power infringing upon areas
where states traditionally have been sovereign? (Lopez)
8. Economic vs. Non-Economic Activity
a. Is the activity Economic or Non-Economic? (Lopez,
Morrison, Raich)
i. Activities as a whole are quintessentially
economic (Raich)
9. Comprehensive Congressional Scheme
a. Is it part of a comprehensive legislation or single subject
legislation? (Raich)
10. Activity v. Inactivity
a. Congress CANNOT regulate inactivity (Sebelius)

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 LEGISLATIVE POWER
Ways to Interpret the Dormant Clause:
1. Textual
a. No explicit divestment of
state power to regulate
interstate commerce
b. Art. I, 8, Cl. 3 Court has
read into the commerce
clause judicially
enforceable limits on state
legislation when Congress
has not acted
c. Art. I, 8 interpreted to
mean states cant pass laws
regulating interstate
commerce especially when
protectionist
d. Art. IV, 2 Privileges &
Immunities Clause bars
state legislation that
discriminates against out-
of-state economic interests
2. Structural
3. Originalist
a. Framers centralized power
to regulate commerce in
Congress b/c destructive
trade war among states
was a problem (threat to
the Union)
b. Alexander Hamilton
unneighborly regulations of
some states if not
restrained will extend till
they become serious
source of discord to
intercourse btwn different
parts of the Confederacy
c. Johnson vs. Marshall
4. Precedential
a. Cooley v. Board of
Wardens: recognized
concurrent power to
regulate commerce and
Congressional silence does
not mean no limits on state
regulatory power
5. Historical Practice
6. Prudential
DORMANT COMMERCE CLAUSE
Dormant Commerce Clause
Limits state power to enact regulations affecting
interstate commerce
RULES:
a. States CANNOT discriminate against interstate
commerce (unless no alternative for serving
legitimate local purpose)
i. Discrimination = favoring in-state
interests against out-of-state interests
ii. Protectionism = violation of Dormant
Commerce Clause (Philadelphia v. New
Jersey)
iii. Not discrimination if:
1. Law benefits public entities over
private entities, yet treats all
private companies the same
b. States CANNOT place unreasonable burdens on
interstate commerce
i. Balancing Test Weigh local interests in
keeping law (i.e., environment, trade,
etc.) against burden on interstate
commerce
1. State highway laws are usually
valid unless theres unreasonable
burden on interstate commerce
POLICY REASONS:
o Avoid trade barriers
o Lack of protection for out-of-state interests
CATEGORIES OF THE DORMANT COMMERCE CLAUSE
1. Facially Discriminate against out-of-state commerce
a. INVALID (Only Exception = Quarantine law)
b. State has heavy burden of showing discrimination
is legitimate for non-protectionist reasons
(Philadelphia v. New Jersey)
2. Facially Neutral, but all burden falls on out-of-state
business (impermissibly protectionist effect)
a. USUALLY INVALID
b. State must (1) justify local benefits of statute and
(2) unavailability of non-discriminatory
alternative (Hunt v. Washington State Apple)
3. Facially Neutral, but disproportionate adverse effect on
interstate commerce
a. BALANCING TEST Statute invalid ONLY IF total
interstate flow is substantially affected and
burden on interstate commerce clearly outweighs
legitimate non-protectionist local benefits?
(Burden on challenger of statute)
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 LEGISLATIVE POWER
Ways to Interpret the Taxing Power:
1. Textual
a. Art. I, 8, Cl. 1
Congress has the power to
law and collect taxes,
duties, imposts, and
excises
2. Structural
3. Originalist
4. Precedential
5. Historical Practice
6. Prudential
a. Tax vs. Penalty (Child
Labor Tax Case)
b. Revenue Producing vs.
Mere Regulation
TAXING POWER
Art. I, 8, Cl.1 Congress shall have power to law and collect
taxesand excises, to pay debts and provide for the common
defense and general welfare of the US
Art. I, 2, Cl.3 direct taxes shall be apportioned among the
several states
Rules of Taxing Power:
1. Taxing power is NOT a regulatory power, but power is
plenary Can be exercised for any public purpose
a. No compelling governmental interest required
2. Reasonable relationship to revenue production
a. Tax acceptable it is facially a revenue producing
measure (Sebelius)
3. Penalty cannot be imposed in guise of taxes
a. PENALTY:
i. Large monetary amount exacted
ii. Scienter requirement
iii. Payments are made to source other than
IRS
4. Disclosure requirements will not make a tax into a penalty
5. Amount of direct tax within a state must be in proportion
to population within the state (Art. I, 2, Cl.3)
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 LEGISLATIVE POWER
Ways to Interpret the Taxing Power:
1. Textual
a. Art. I, 8, Cl. 1 Congress has the
power topay debts and provide
for common defense and general
welfare of the United States
2. Structural
3. Originalist
a. Madisonian Power limited to
those enumerated in Art. I, 8
b. Hamiltonian Clause provides for
broader power; Power only limited
by need to provide for general
welfare
i. View adopted by the
Courts
4. Precedential
5. Historical Practice
6. Prudential
a. Dole Test modern
interpretation of spending clause
SPENDING POWER
Art. I, 8, Cl.1 Congress shall have power to law and
collect taxesand excises, to pay debts and provide for the
common defense and general welfare of the US
Rules of Spending Power:
1. Regulating through conditional federal funding is
permissible
2. Spending Power NOT limited to what is stated in
Art. I, 8 (Hamiltonian View)
a. Dont have to spend in pursuit of other
enumerated powers (U.S. v. Butler)
b. Congress determines scope of general
welfare
3. Reasonable Conditions Congress may impose
reasonable conditions for participation in federal
spending program even if it induces states to
conform to federal standards (Sebelius)
4. Unambiguous Conditions Conditions must be
explicitly stated (clear and unambiguous) so states
can make informed choices (Sebelius)
5. Not Coercive/States May Reject 10th
Amendment is not a likely barrier to Congressional
Spending as long as states may reject federal grant
and its conditions
a. Butler Congress cannot...purchase
compliance
LIMITS TO SPENDING POWER
(DOLE TEST)
1. Must be in pursuit of General Welfare
2. Congress must be Unambiguous Clear
statement of funding condition required
3. Condition must be Related to the purpose of the
spending program The Nexus (i.e., highway
funds drinking while on highway is the
connection)
a. Deference to congress rationale
4. Cannot violate other Constitutional Provisions
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 LEGISLATIVE POWER
External Constraints on Commerce Power
10th Amendment The power not delegated to the
United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively,
or to the people

11th Amendment Judicial power shall not extend to

any suit in law or equity commenced against one of
the United States by Citizens of another state, or by
Citizens of any foreign state

Rules:
1. Commandeering of State Governments of
state officials = impermissible
a. Commandeer = directly compel state
to enact and enforce a federal
regulatory program
b. (New York v. US, Printz v. US)
2.

New York v. United States

National League of Cities v. Usery
Garcia v. San Antonio Metropolitan Transit Authority
Printz v. United States

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 EXECUTIVE POWER
Exec. Assertion of Power
o Executive Power
Youngstown (Steel Seizure Case)
o National Domestic Policy
Zivotofsky v. Kerry
o Foreign & Military Affairs
Dames & Moore v. Regan
Exec Discretion During War & Terrorism
o Detention & Trial of Enemy Combatants
Ex parte Quirin
Hamdi
Hamdan
Boumediene v. Bush
Congressional Authority to Restrain & Enable the
Executive
o Congressional Control over Exec. Action
INS v. Chadha
o Bicameralism & Presentment
Clinton v. NY
o Congressional Constraints on Appointment
& Removal of Exec. Officers
Bowsher v. Synar
Morrison v. Olsen
War & Treaty Power
o Woods v. Cloyd W. Miller
o Missouri v. Holland
Executive Privilege, Immunities, & Impeachment
o U.S. v. Nixon
o Clinton v. Jones

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 EXECUTIVE POWER
Ways to Interpret the Constitution:
1. Textual
a. Art. II vests executive power in the
President WITHOUT QUALIFICATION
i. Implied president has certain
inherent powers beyond those
specified in Constitution
2. Structural
3. Originalist
a. Framers separation of Governmental
powers prevent concentration of
power, maintain checks and balances,
decentralize to ensure liberty
4. Precedential
5. Historical Practice
a. Look to when in category 2 (zone of
twilight)
6. Prudential
a. Youngstown Functionalist Approach
(Tripartite Analysis of Justice Jackson)
b. The Court, in declaring power of each
branch, asserts its own power as the
arbiter of these matters
EXECUTIVE POWER
Ways to Interpret the Constitution:
1. Textual
2. Structural
3. Originalist
4. Precedential
5. Historical Practice
6. Prudential
EXECUTIVE ASSERTION OF POWER
TRIPARTITE ANALYSIS FOR WEIGHING EXECUTIVE
POWER
(Youngstown Justice Jackson)
1. President Acts pursuant to expressed or
implied Congressional consent/authorization
a. Presidents authority at its highest
i. Includes all Presidents rights
PLUS with Congress can
delegate to him
2. President Acts in Absence of Congressional
grant or denial (Congress is silent on approval)
a. Zone of Twilight Uncertainty about
who has power (President and
Congress may have concurrent
authority) Look to historical
practice Has there been consistent
performance by executive with
congressional acceptance?
b. President relies on his own
independent powers Only the
Powers Granted to him in Art. II
3. President Acts in Conflict with express or
implied will of Congress
a. Presidents power at its weakest
b. Can only rely on presidential power
minus Congress
Executive Power In National Domestic Policy
Executive Agreement = An agreement btwn US and a
foreign country that is effective when signed by the
president and head of the foreign country
Types of Executive Agreements:
1. Congressional Executive Agreements
a. Congress & President Approve
i. Congressional Approval from both
houses required
b. Congress can authorize US to violate its
international agreements
2. Executive Agreement
a. Doesnt have Congressional approval
b. Binding on US and other country
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IF NATIONAL DOMESTIC POLICY Youngstown Jackson Analysis
If Congress is silent, could be yes or could be no (not sure zone of twilight case by case analysis)
o HOLDING = no to executive act

IF FOREIGN POLICY Dames & Moore v. Regan Analysis

If congress is silent, but there is something to show they might approve (even if light), and there is
no contrary intent, then we go towards affirming the executive act (If silent, probably yes)
o HOLDING = yes to executive act

FUNDAMENTAL RIGHTS
Individual Rights Before Civil War
o Barron v. Mayor & City Council of
Baltimore
o Dred Scott v. Sanford
Post-Civil War Amendments
o Slaughter-House Cases
Incorporation of Bill of Rights
o Duncan v. Louisiana
o McDonald v. City of Chicago

DUE PROCESS
Substantive Due Process
o Lochner v. NY
o Nebbia v. NY
o Williamson v. Lee Optical

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