5 Themes:
 
1. Legitimate government depends upon consent
i. "We the people… do ordain…"
2. Structure defines and protects right
i. Not a strict divide between personal rights and gov.
structure
3. Two structural elements of the Constitution
i. Federal government conceived of as balance of power,
or separation of powers, or intersection of power or
all three
1. Does it matter what we refer to it as?
ii. Federalism: idea that states are sovereign or have
dignity
1. What is duel sovereignty in a federal system
4. Con. law is not confined to the decisions of the SC
i. Braches disagree over who and which branch gets to
interpret the constitution
1. 14th Amendment cases: role of Congress and
role of court
5. Con. law. is not confined to the text of the constitution,
although we read the text with great care
i. All three branches and the people interpret the
constitution
1. People via voting
2. Goes back to 1.
a. Consent is an ongoing process
ii. The text of C keeps getting interpreted and reinterpreted
1. Expands and contracts over time
a. Ie concept of liberty
Claims arising in this course:
 No government can do this
o ie: order us to marry a particular person
 Federal government can’t do it, this is reserved to the states
o federalism
 State government can’t do it, this is reserved to fed. gov.
 Balance of powers issues what branch of fed. gov. can do
this
o do we need legislation, do courts have to approve, do
we need presidential input
o complicated issue
 What branch of state gov. has to do certain things
o Legislature, governor, courts, agencies
o Wrong branch? We have a claim
 Yes, gov. can do this, but only in a particular way
o Ie: Bush v. Gore
Constitutional Predicate of Categories of Claims:
o Scope of government authority
 Example where we find C predicate from broad sense
 10th amendment: authority powers reserved to the
people
 Captured in substantive DP and economic liberty
 Liberty v. regulation, general welfare
o Scope of federal government authority
 What they can do
 Enumerated powers, concurrent authority with the
states
 10th amendment
 11th amendment
o A particular branch cannot do this
 Federal: art 1-3
 Look to see what powers are allocated to each
branch
 Does issue involve some kind of authority of
activity allocated to one or more branches?
 Bush v. gore
o Can do this but not in this way
 Commandeering cases
o Federal gov can act but private people cannot
 10th
 11th
  Sovereignty question
CONGRESSIONAL POWER AND THE “NECESSARY AND PROPER” CLAUSE
Necessary and Proper Clause
CASE NAME/ CITIATION FACTS/
FACTS PATTERNS
McCulloch v. Maryland Congress passed a law
17 U.S. (4 Wheat.) 316 establishing a Bank of the
(1819) United States; Maryland
then passed a state law that
C.J. MARSHALL required the US Bank to
pay State Tax, in
opposition to the Federal
Law
(conflict of Fed and State
Law)
Marshall finds that the
Federal Law is Supreme
over any conflicting state
law, and that Maryland has
no power to tax US Bank
in opposition to
Congressional Will
LISTS: MAJORITY DISSENT
TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
 Intersection: Congress  Opposes the idea that NO DISSENT
v. States Federal Government has
 Intersection: Congress authority is limited to CounterArgue/Compare
v. Court that which was granted  Legislative Vesting
 Congressional Sources by the States—Instead Clause: Don’t the
of Legislative finds broad grant of words “herein granted
Authority power from “We the mean that Congress is
 Federalism: Power of People” creating a limited to Enumerated
Federal Leg. “More Perfect Union” powers designed to
 Separation of Powers:  Finds that it is within the enforce congressional
Power of Congress power of the Judiciary to limits?
 Separation of Powers: determine whether a  Enumerated Powers of
Powers of Judiciary federal or state law is Congress: If congress
proper (follows was meant to have
 Preamble/ We the
Marbury) such overreaching
People
 Supremacy Clause read power, why bother to
 Supremacy Clause
as broad grant of Power, Enumerate such small
 Necessary and
“Supreme law of the things as Post Roads?
Proper Art. 1, Sec.
8, cl. 18 Land”  10th Amendment is
 10th Amendment  Finds that Enumerated this not a deceleration
powers are not LIMITS that non-enumerated
but merely EXAMPLES powers are reserved to
of the broad authority of states?
Congress
 Takes broadest
interpretation of
“necessary and
proper”—Congress has
strong suthority to pass
laws
CONGRESSIONAL POWERS, FEDERALISM AND THE “COMMERCE CLAUSE”

Commerce Clause deals with relationship of power between states and government
Art. 1 Sec. 8 cl. 3: To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes
 Read the Constitution like a statute that is applicable to the entire country
 What is “commerce”?
o Intercourse and navigation
 Concerns?
o Congress was going to be able to do whatever it wanted
 Given power to regulate commerce presumably so national commercial interest might prevail voer what federalist called
local protectionist faction
 3 major arguments against Commerce Clause Power (Federal Government Can’t Do This)
o 1. “that’s not commerce”
o 2. “that’s not interstate commerce” (only in my state)
o 3. “that’s ‘police power’” (within the health, safety, welfare, moral of the state)
What Congress may do:
1. May regulate the use of the channels of interstate commerce
2. empowered to regulate and protect the instrumentalities of interstate commerce, or person or things in interstate commerce, even though the
threat may come only from intrastate activities
3. commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (ie.: activities that
substantially affect commerce)
Gibbons: court adopted an expansive view of the scope of the CC 1937-1995: not ONE federal alw was declared unconstitutional as exceeding
the scope of Congress’ commerce power US v. Lopez: declared unconstitutional a federal law prohibiting a person from having a firearm
within 1000 feet of a school on grounds it exceeded the limits of commerce power2000 US v. Morrison: declared unconstitutional as exceeding
scope of commerce power a provision of the Violence Against Women Act authorizing victims of gender-motivated crimes to sue assailants

Questions the Court Considers:

 What is commerce:
o Stage of business or does it include all aspects of business
  What does among the several states mean?
o Is it limited to instances where there is a direct effect on interstate commerce
o Or any effect on interstate activities
o Or activity concerning more than one state
 Does the 10th Amendment limit Congress?
o If congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the 10th Amendment
The Principles:
 The dormant commerce clause acts as a negative block on state regulation that unduly burdens interstate commerce.
 The motivation for it includes: (1) to prevent state laws that interfere with interstate commerce, (2) to further the national economy, and (3) to
provide equal protection of the laws to citizens of all states (as cannot vote in the state). Hood & Sons v. New York (1939) (ban on facilities to
acquire and ship milk through interstate commerce was overturned)
Framework for evaluating dormant commerce clause cases:
 Does the state statute serve a legitimate local public interest
 Are the effects of the state statute on commerce “incidental” or “clearly excessive in relation to the putative benefits”
 What is the nature of the local benefit
 Are there alternate means to affect the desired result that are less burdensome on interstate commerce?
The discriminatory nature of the law:
 The court has held that whether a law discriminates against out-of-state interests for the benefit of in-state interests is a key issue.
 If the law is discriminatory, the law is presumed unconstitutional unless the state interest is very significant. The burden is on the state to
prove that an important state interest is involved and that there is no less burdensome alternative available to address the issue. (If the law is not
discriminatory, the law is presumed constitutional unless the burden on interstate commerce is particularly severe.
Facially Discriminatory vs. Facially Neutral Laws: (Philadelphia v. NJ)
 Facially Discriminatory laws are those that by their nature create a different standard for out-of-state vs. in-state interests. The presumption is
that these are invalid barring a very important state interest.
 Facially Neutral laws are unconstitutional if they have a discriminatory purpose or effect.
Exceptions to the Dormant Commerce Clause:
 Laws that would be unconstitutional under the dormant commerce clause will be upheld if (1) Congress approves the law or (2) the “market
participant exception” is involved, allowing states to preferentially treat local companies in relationship to government programs and
government owned companies. The latter is limited to the transaction itself, and does not permit down-stream regulation of such products in a
discriminatory way.

CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT

FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Gibbons v. Ogden Ogden sued Gibbons,  Commerce Clause  Commerce is more that NO DISSENT
22 U.S. (9 Wheat.) 1 (1824) because he owned the (what is Commerce) traffic it is commercial
exclusive navigation of all Counter Argue/Compare
C.J. MARSHALL water within the  Intersection: Congress
jurisdiction. Gibbons v. States
challenged the monopoly  Intrastate v. interstate
that NY had granted,  10th Amendment
forcing him to obtain a  Hill: (referring to
special operating permit to Amar)Commerce=
navigate the water framers understood
this to mean
Marshall found this intercourse of human
licensing requirement for affairs and Commerce
out-of-state operators to be Clause gives Congress
inconsistent with a authority over
congressional act interstate/international
regulating the coasting commerce.
trade.  Hill: tension
between this case and
Wickard, Lopez,
Morrison. That
tension defines how
broadly Commerce
Clause interpreted and
whether it will become
other police power
extending to broader
and broader spheres.
Wickard v. Filburn Wickard Secretary of  Commerce Clause
317 U.S. 111 (1942) Agriculture
Filburn farmer
 Intersection: Congress
v. States
JUSTICE JACKSON  Separation of Powers:
Filburn, small farmer, was
given a wheat acreage Power of Congress
intercourse between
nations, parts of nations,
in all of its branches,
and is regulated by
prescribing rules for
carrying on that
intercourse
 Commerce includes all
phases of business,
including navigation
 Regulating commerce
does not stop at the
jurisdictional lines of the
several states
 Power of Congress
comprehends navigation
within the limits of
every State, so far as
that navigation in any
manner is connect with
“commerce with foreign
nations, or among the
several States, or with
Indian tribes.”
 Congress can regulate
intrastate commerce if it
had an impact on
interstate activities
 Congress has complete
authority to regulate all
commerce among the
states
 Statute regulates neither
production not
consumption, but only
marketing
 In the alternative, if the
 If there was any one
object riding over other
in the adoption of the
constitution, it was to
keep the commercial
intercourse among the
States free from all
invidious and partial
restraints
 Intrastate
 Words of the
Constitution are limited
to traffic, buying and
selling, or interchange
of commodities, and do
not admit that it
comprehends
navigation
 This is a regulation of
production and
consumption of wheat
 Such activities are
beyond the reach of the
 allotment under a Dept.
Agriculture directive
(Agriculture Adjustment
Act of 1938 AAA)
authorizing the gov. to set
up production quotas for
wheat.
Filburn exceeded his
allotted production of
wheat (selling some and
keeping the rest for use on
his farm) and was
penalized.
Filburn refused to pay,
claiming AAA sought to
limit local commercial
activity and
unconstitutional because it
exceeded Congress’ power
under the Commerce
Clause
Congress can regulate the
production of wheat
intended for personal use
and not place in interstate
commerce. Congress can
regulate trivial local,
intrastate activities that
have an aggregate effect
on interstate commerce via
the commerce power, even
if the effect in indirect.
**EXPANDS REACH OF
COMMERCE CLAUSE**
Heart of Atlanta Motel v. The Heart of Atlanta Motel 
US in Atlanta, GA refused to
 Essentialism v. Act does go beyond the Congressional power
Consequentialism regulation of marketing under the Commerce
Essentialism: looking at it is sustainable as a Clause
Constitution at time “necessary and proper”  Since they are local in
written implementation of the character, and their
Consequentialism: leap power of Congress if it effects upon interstate
forward, the consequence exerts a substantial commerce are at must
of this law would effect economic effect on indirect
commerce interstate commerce  Most of the wheat
 Necessary and Proper  Filburn fell under the never left the farm so
 Individual liberties v. commerce clause and commerce clause
Common Good the necessary and proper shouldn’t apply
extends regulatory as well thus having an
power of the effect on commerce
Commerce Clause ALL wheat under the
Commerce Clause
 Case turns on the
economics of the wheat
industry country full
of farms like Filburns’
and when you count
them you see that that is
the market and
accounted to excess
production thus bringing
down pricepenalty
should be imposed on
Filburn
 Just because wheat did
not leave farm does not
mean it did not
substantially influence
Commerce
Title II of the Civil  The title listed four NO DISSENT
379 U.S. 241 (1964) accept Black American
and was charged with
JUSTICE CLARK violating Title II.
Title II of the Civil Rights
Act of 1964 forbade racial 
discrimination by places of
public accommodation if
their operation affected
commerce
Since Congress had power
to regulate commerce, and
interstate travel is a part of
commerce, and a motel
could conceivably be a
part of commerce/travel, it
is under the umbrella of
commerce clause and
subsequently ant Act (Title
II) passed by Congress
Rights Act of 1964 classes of business Counter Argue/Compare
 Commerce Clause establishments, each of  Preference of the
 Equal Protection which serve the public law upheld as
Clause of the 14th and is place of public constitutional under
Amendment accommodation §5 of the 14th
Movement of people meaning operation affect Amendment
relating to commerce commerce covers
 Commerce Clause v. hotels, motels, and inns
state action  Has a substantial
 1st Amendment relation to the interstate
 5th Amendment flow of goods and
people, except where
 Rational Basis Test
stat action is involved
action taken on behalf
of the state gov. (no
such state action in this
case)
 Power of Congress to
promote interstate
commerce also includes
the power to regulate the
local incidents/activities
which might have
substantial and harmful
effect upon that
commerce
 Racial discrimination
has disruptive effect on
interstate commerce
(Gibbons). Discourages
travel (keeping $ out of
interstate commerce).
 Moral Q doesn’t exclude
from Commerce Clause
power. No deprivation
of prop. or liberty under
5th Amend.
 Rational basis test: the

U.S v. Lopez Lopez, 12th grade student,
514 U.S. 549 (1995) carried concealed weapon
into his Texas high school.
CJ REHNQUIST Lopez was arrested for
violating the Gun-Free
School Zone Act.
The Act exceeded the
authority of Congress to
regulate commerce among
the states under the
commerce clause.
Act could not be sustained
as a regulation of an
activity that substantially
affects interstate
commerce
**1st decision in 60 yrs to
invalidate statute based on
exceeding Commerce
fact that 1 member of
class regulated may
suffer economic loss
does not bar to
legislation.
 This case establishes the
rational basis test
1. Whether Congress had
rational basis for finding
affect on commerce.
2. If such basis, whether the
means selected to eliminate
that evil are reasonable &
appropriate.
“voluminous testimony
presents overwhelming
evidence that
discrimination by hotels
and motel impedes
interstate travel
 Commerce Clause  Gun-Free School Zone Act of Dissenting: JUSTICE
1990 does not regulate STEVENS: Possession of guns is
 Federalism consequence of commercial
commercial activity
 Limitation of the activity because articles of
 Possession is not connect in
enumerated powers any way to interstate commerce can be used to restrain
 Commerce power v. commerce commerce.
police power  Act is not a regulation of the  Congress should be able to
use of the channels of prohibit possession of guns at
 States control to interstate commerce
any location because of
inspect  Nor is it an attempt to potential for harmful use.
prohibit the interstate JUSTICE SOUTER: only
transportation of a question is whether the legislative
commodity through the judgment is within the realm of
channels of commerce reason
 Nor can the Act be justified  Wants to apply
as a regulation by which reasonableness test to
Congress has sought to whether affect on interstate
protect an instrumentality of activity
interstate commerce or a JUSTICES BREYER,
thing interstate commerce STEVENS, SOUTER,
Marshall expanded the GINSBURG: Commerce Clause
Commerce Clause, Rehnquist is does justify this Act because the
saying Gibbons is as far as you significant/substantial effect on
Clause**
1. Congress can regulate the use
of the channels of interstate
commerce citing HOA
2. Congress may legislate to
regulate and protect
instrumentalities of interstate
commerce includes power to
regulate persons/things in
interstate commerce
3.Congress may regulate those
activities having substantial
relation to interstate
commerce substantial affect
test
can go; this case falls outside
The constitution adapts cases
like A.L.A Schechter and
Wickard were important only to
the time
Concurring: JUSTICE
KENNEDY/O’CONNOR
Federalism argument:
Upsets federal balance rendering
it unconstitutional
 Federal gov’t taking over
regulation in areas of
traditional state concern that
have nothing to do w/
commercial activities (act nor
conduct have commercial
character; no evident
commercial nexus)
 Statute forecloses States from
exercising judgment
We need boundaries because we
have two different gov. powers
Lack of necessity for the federal
law because the vast majority of
states already had laws
prohibiting guns near schools
Concurring: JUSTICE
THOMAS: Case law has drifted
from original understanding of
Commerce Clause
 Congress being able to
regulate anything related to
commerce gives police power
 Ct has always expressly
rejected reading of
Commerce Clause to expand
to new police power
 Urges a much narrower view
of congressional power
returning Court to the limits
on the 1887-1937
Should look to substantial
effect test
interstate commerce.
 Also, supposed to consider
aggregate affect of all guns
possessed in/near schools
(education affects interstate
commerce).
 Plus, rational connection
between this activity &
interstate commerce (if not
direct).
Majority’s decision creates legal
uncertainty.
Counter Argue/Compare
3 basic principles:
1. Power to regulate local
activated insofar as they
significantly affect interstate
commerce
2. Cumulative effect of all
similar instances
3. Court must give Congress
leeway
Errors:
1. Majority run contrary to
modern SC cases that upheld
congressional action despite
connection to interstate or
foreign commerce less
significant than effect on
school violence
2. Courts belief that it can
reconcile its holding with
earlier cases by making a
critical distinction between
commercial and
noncommercial
transactions Ct. believes
Constitution would
distinguish between two
local activities
POSSIBLE EXAM Q. 
Whether assertion by

US v. Morrison Plaintiff alleges that
529 U.S. 598 (2000) Morrison and Crawford,
varsity football player,
CJ REHNQUIST (5-4) raped her. Plaintiff filed a
complaint against them
under Virginia Tech’s
Sexual Assault Policy.
Statute makes federal civil
remedy for victims of
gender-motivated violence.
Congress lacks authority to
enact a statute under the
Commerce Clause or the
14th Amendment since
statute did not regulate an
activity that substantially
affect interstate commerce
not did it redress harm
caused by the state
Court returned to notion
that Art. I limits Congress’
legislative powers to those
expressed or implied in the
Constitution
 42 U.S.C. §13981 There are 3 major reasons
 Commerce clause why statute does not fall
 14th Amendment under commerce clause:
 Article II 1. Gender motivated
 Necessary and Proper crimes are not
Cl. economic in nature
 Essentialism 2. Statute does not have
any jurisdictional
element that could
show interaction
between states
3. Effects of gender
motivated violence on
interstate commerce are
too attenuated
Criminal statute that has
nothing to do with
commerce of any sort
Also a federalism issue
(don’t blur line between fed
& local auth).
Concurring: JUSTICE
THOMAS: Substantial
effects test inconsistent with
original understanding of
Congress power under
Commerce Clause.
 Appropriation of state
police power in guise of
regulating commerce.
Thomas is true/ how does
it compare and contrast
with Amar’s idea of what
the clause was?
Justice Souter, Stevens,
Ginsburg, Breyer:
Essentialist and formalist
will lead to incoherent
ruling
Lopez was wrong & we
should go back to what we
were doing before
difference between Lopez
amount of data assembled
by Congress showing
effects of violence against
women on interstate
commerce
 Thus meeting predicare
for the exercise of
Commerce Clause
Power
Between Wickard and
Lopez act would have
passed
Conclusion that some
particular categories of
subject matter are
presumptively beyond the
reach of commerce power is
non sequitur
Compare to Heart of
Atlantalike racial
discrimination, gender
 violence discourages women
from participating in
economy
 Heart of Atlanta had less
info on impact on
interstate commerce than
this case, but that one
passed muster

Nothing in Art II says

Congress can regulate this
(or Lopez)instead,
Congress uses justification
under Necessary & Proper
Clause and Commerce
Clause
 Do these 2 need each
other or can they stand
alone?

Gonzalez v. Raich California passed the  Commerce Clause Justice Stevens: case law Dissent, O’Connor, CJ,
545 U.S. 1 (2005) Compassionate Use Act,  California firmly establishes Congress’ and Thomas: majority
legalizing marijuana for Compassionate Use power to regulate purely gives congress perverse
JUSTICE STEVENS medicinal purposes which Act local activities that are part incentive to legislate
conflicts with the federal  Federal Controlled of an economic class of broadly pursuant to the
Controlled Substance Act Substance Act activities that have Commerce Clause
(CSA), banning possession  Supremacy Clause substantial effect on  Lopez would then stand
of marijuana.  Necessary and interstate commerce for nothing
Proper Art. 1, Sec.  Production, distribution  Lopez and Morrison
Respondents argue that 8, cl. 18 and consumption Court suggested
CSA exceed Congress’   Unlike Wickard : economic activity
authority under the Congress did not make a usually relates to
Commerce Clause specific finding that the commercial character
intrastate cultivation and  Here we have
Congress has rational basis possession of marijuana homegrown
for believing that the local for medical purposes cultivation and
supply of marijuana has based on dr. personal possession
substantial effect on the recommendation would and use for medicinal
 supply and demand in the
national market
10th AMENDMENT: POWERS RESERVED TO THE STATE
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States, are reserved to the States respectively, or to the people.
CASE NAME/ CITIATION FACTS/
FACTS PATTERNS
Garcia v. San Antonio SAMTA , main provider
Metropolitan Transit of transportation in the San  Federalism
Authority Antonio, claimed it was
469 U.S. 528 (1985) exempt from minimum-
wage and overtime
JUSTICE BLACKMUN requirements of the Fair
(5-4) Labor Standards Act
substantially affect the
larger marijuana market
but absence of
particularized findings
does not call into
question Congress’
authority to legislate
Concurring, Scalia: Congress’
regulatory authority over
intrastate activities that are not
themselves part of interstate
commerce derives from the
Necessary and Proper Clause
 When necessary Congress
can regulate even those
intrastate activities that do
not themselves substantially
affect interstate commerce
 Even noneconomic local
activity if regulation is a
necessary part of more
general regulation of
interstate commerce
LISTS: MAJORITY
TOPICS/ ISSUES ARGUMENT
ADDRESSED
 10th Amendment  Framers chose to rely
on a federal system in
 Commerce Clause which special restraints
 FLSA on federal power over
the States inhered
principally in the
working of the national
gov.
 State sovereign
purposes which has
no apparent
commercial character
 Lopezpossession≠
commercial activity
Counter Argue/Compare
Theoryaggregate
(powerful for Commerce
Clause, makes enough of
anything commerce; makes
clause stronger than it
already is)
DISSENT
ARGUMENT
Dissenting, Powell, CJ,
Rehnquist, O’Connor:
majority decision overrules
National Leagues of Cities
v. Usery held that
Congress lacked authority to
impose requirements of
FLSA on state and local
govs.
 The guiding principles of interests are more  Effectively reduces the
federalism established in properly protected by 10th amendment to
National League of Cities procedural safeguards meaningless rhetoric
v. Usery were unworkable inherent in the structure when Congress acts
and SAMTA was subject of the federal system pursuant Commerce
to Congressional than judicially created Clause
legislation under the limitations on federal  In rejecting role of
Commerce Clause power judiciary in protecting the
 Nothing in overtime states from federal
and minimum-wage overreaching, court
requirements of the ignores Marbury v.
FLSA, as applied Madison
SAMTA, that is  States role cannot be
destructive of state preempted by National
sovereignty or violative Gov.
of any constitutional  This authorizes federal
provision control, undet auspices of
Commerce Clause, over
the terms and conditions
of employment of all
state and local employees
 Trying to save concept of
traditional governmental
functions

Counter Argue/Compare

State and Local gov. can

pay their workers what they
see fit

What is a traditional
government function?

No limit on what Congress

can do

New York v. United States Congress passed Low-  10th Amendment  Upheld two of three Dissenting, White,
505 U.S. 144 (1992) level radioactive Waste
Policy Amendment Act of
JUSTICE O’CONNOR 1985 requiring state to
(6-3) provide for disposal of
waste generated by them.
NY filed suit against the
federal gov., questioning
the authority of Congress
to regulate state waste
management
Incentive 3 (states that
failed to dispose all of their
waste by a certain date will
become liable for all
damages suffered by the
waste’s generator or owner
as a result of the state’s
failure to promptly take
possession) crossed the
Constitutional limits
**sounds like Marshall in
McCulloch**
 Guarantee Clause of provision of the Act under Blackmun, Stevens
review, reasoning Congress Disagreed about analysis of
Art. IV
had authority under the
Commerce Clause to use
how legislation at issue
financial reward and access came to be enacted:
to disposal sites as incentive  Resulted from effects
for state waste mangment. of state leader to
 Incentive 3’s federal action achieve state-based set
would commandeer state
of remedies to waste
govs. into the service of
federal regulatory purposes problem
 Congress has congressed  Collective state action,
the line distinguishing rather than as
encouragement from impositions placed on
coercion
States by the federal
 Does not represent the
conditional exercise of any gov.
congressional power
enumerate in the
Constitution
 Choice between two
unconstitutionally coercive
regulatory techniques is not
a choice at all
 Inconsistent with
Constitution’s division of
authority between federal
and state govs.
 Ascertaining line between
fed and state power by:
1. Inquiring whether an Act of
Congress is authorized by one of
the powers delegated to
Congress in Art. I of the
Constitution
2. determine whether Act of
Congress invades the province of
state sovereignty reserved by the
10th Amendment
South Dakota v. Dole Congress
offered states a choice
POSSIBLE EXAM Q.  HOW
DO WE BUILD A CHOICE

Printz v. United States Brady Bill required local
521 U.S. 898 (1997) chief law enforcement
officers (CLEOs) to
JUSTICE SCALIA perform background-
checks on prospective
handgun purchasers, until
AG establishes a federal
system for this purpose.
Interim provision of Brady
Bill commandeers state
and local law enforcement
officers to conduct
background check on
prospective handgun
purchasers and to perform
certain related tasks, thus
violating the Constitution
INTO THESE INCENTIVES?
 th
10 Amendment  Provisions violate dual Dissenting, Stevens,
 Brady Bill sovereignty & SoP. Souter, Ginsburg, and
 Appointment Power Can’t compel state Breyer: Commerce Clause
 Necessary and Proper officers to execute fed allows regulation of gun
Clause law. sales.
  Looks to New York  Necessary & Proper
v.US repeats Clause supports
conclusion, “Framers allowing local officers to
explicitly chose a execute fed program
Constitution that
confers upon Congress Dissenting, Souter:
the power to regulate Commerce Clause allows
individual, not States” regulatory of gun sales.
What destroy dissent’s  Necessary & Proper
Necessary and Proper Clause supports
Clause argument the allowing local officers
clause itself to execute federal
 CC violates the program
principle of state
sovereignty reflected in Dissenting, Breyer w/
the various Stevens: Federal systems of
constitutional provision foreign countries suggest
we mentioned earlier, it that no need to interpret
is not a “law proper for Constitution as abs principle
carrying into execution forbidding
the CC and is, in the
words of Federalist,
“merely an act of
usurpation” which
“deserves to be treated
as such”
New York congress
cannot compel the States to
enact or enforce a federal
regulatory program
In this case Congress
 cannot circumvent that
prohibition by conscripting
the State’s officers directly

Concurring, JUSTICE
THOMAS: Provisions
inconsistent w/ 10th
Amendment

The Ct. attempts to

distinguish
“commandeering” the
states in the context of
“requirements that the
States regulate”
(unconstitutional under NY)
or execute the laws
(unconstitutional under
Printz) from the “well
established power of
Congress to pass law
enforceable in state courts”
(not unconstitutional under
Hunter v. Martin’s Lessee)

11th Amendment: Sovereign Immunity

The Judicial power of the United States shall not construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
Amedment has become a provision that, despite its language, serves more as a limit on Congress’ power than of the Court
 Chisholm v. Georgia: allowed diversity suits by a nonresident of Gerogia against the state of Georgia to proceed in federal court
o “the Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority as
expressly provided by the Constitution”

Policy for state’s sovereign immunity  Supporters argue this doctrine predates the constitution and is part of the document;
safeguarding state governments and their treasuries is deeply embedded in constitution.
 They also claim there are other ways of holding states accountable.

Policy against state’s sovereign immunity
1st Theory: Constitutional Limit on Subject Matter
Jurisdiction for ALL Suits Against State Governments:
2nd Theory: Limits Only on Diversity Suits:
SC Current View
 The doctrine properly puts trust in state government.
 Critics argue the doctrine was not found in constitution or intended by framers.
 It is inconsistent with the notion of the law b/c it favors government immunity over
accountability.
 That doctrine creates a constitutional restriction on federal court jurisdiction for all suits
against state governments.
 The 11th amendment is part of a broader constitutional limitation on federal court
jurisdiction created by sovereign immunity.
 Proponents of this view also believe that there are immunity limits for a suit against a state
by its own citizens, AND in suits in state court where the state is a defendant.
 The SC has held that a state may waive this immunity by consenting to suit.
 This theory applies a clear rule: Federal courts may not hear suits against state
governments regardless of citizenship of the plaintiffs
 Based on the need for federal court deference to state governments and for the use of
federalism to protect states from federal encroachments
 11th amendment restricts only the diversity jurisdiction of the federal courts.
 Article III of constitution permits subject matter jurisdiction on either federal question of
diversity.
 Art III lists 9 categories of suits that can be heard, including diversity.
 The 11th amendment does not bar suits against states based on any other part of Art III, and
does NOT preclude suits based on federal question jurisdiction.
 The amendment bars ONLY diversity suits- suits by dudes from different states suing a state
government in federal court.
 Thus, ALL constitutional claims could heard in federal courts
Pennsylvania v Union Gas Co- 4 justices took position 11th amendment reflects broad
constitutional principle of sovereign immunity and protects states from ALL suits in federal court.
 Thomas joined to create a majority approach along with Rehnquist, O’Connor, Scalia, and
Kennedy.
 The latter view is adopted by Brennan, Marshall, Blackmun, and Stevens- which states that
if federal jurisdiction is based only on federal question, the 11th amendment has no
relevance.
 Stevens, Souters, Ginsburg and Breyer take this position.
reflects baseline assumptions about the need for court review to ensure state compliance with
federal law and the importance of immunicizin state governments from federal jurisdiction.
CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT
FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Seminole Tribe of Florida Seminole Tribe was  Commerce Clause  . Ex Parte Young Dissent, Stevens: majority
v. Florida attempting to set up  11th Amendment unavail to governor prevents Congress from
517 U.S 44 (1996) gambling enterprise within  Art. III since Cong enacted a providing federal forum for
boundaries of their  14th Amendment remedial scheme to broad range of actions
CJ REHNQUIST reservation. Indian (section 5) enforce statute. (copyright, patent,
Gambling Act required K  Congress has not acted bankruptcy, environmental
between Tribe and FL. Hill: this case about: “pursuant to a valid law, etc.)
power of Cong to write exercise of power”  Chisholm: the dissent
Governor of FL and FL law creating private cause  Even when the provided the blueprint
refused to enter into good of action against state Constitution vests in for the 11th Amendment
faith negotiations for (Stevens claims this is Congress complete law assuming Congress had
inclusion of certain gaming judicial imperialism like making authority over a such power
activities. in Chisholm) particular area, the 11th Sovereign immunity has
Seminole loses. Amendment prevents nothing to do with limitation
Notwithstanding Congress’ congressional of judicial power under 11th
clear intent to abborgate authorization of suits Amendment but rests on
the State’s sovereign by private parties federalism concerns &
immunity, Indian against unconsenting community that were
Commerce Clause DOES states subordinate to plenary
NOT grant Congress that 1. Each state is a sovereign power of Congress
power and cannot grant entity in our federal  No acceptable reason to
jurisdiction over a State system conclude that lack of
that does not consent to be 2. Inherent in the nature of consent affects Cong
sued ‘face right power to auth federal
3. Directions sovereignty courts to remedy
not be amenable to the violations of fed law by
suit of an individual states not covered
without its consent explicitly in 11th
Garcia: still good law but Amendment
then Court denies Seminole Justice Souter, Ginsberg,
Tribe the right to bring suit and Breyer: In holding FL
in state court immune to suit under the
○ Seminole Tribe: Indian Gaming Regulatory
1996 (11years after Act, court hold for 1st time
 Garcia) since found of the republic
Garcia: suit against that Congress has no
municipality not the state of authority to subject a State
Texas to the jurisdiction of a
 Kennedylesser federal court at the behest of
entity an individual asserting a
federal right
1. Members of tribe were
citizens of FL, so 11th
Amendment didn’t
preclude Congress from
abrogating sovereign
immunity under IGRA.
2. Governor subject to suit
under Ex Parte Young
b/c precedent for reading
ambiguous statutes to
avoid Const infirmity
enough to require
application (+ rule
requiring courts to
construe to avoid Const.
Qs).
3. Neither text, precedent,
nor history supports
majority.
Decision expressly
overruled PA v. Union Gas
Co (1989)held that Cong
can abrogate 11th Amend
immunity under Art I, §8, cl
3 (Commerce)
Alden v. Maine Group of probation  Art. I  State’s immunity from Dissent, Justice Souter,
527 U.S. 706 (1999) officers, alleged in state  11th Amendment suit is a fundamental Stevens, Ginsburg,
court that State violated  Supremacy Clause aspect of sovereignty Breyer: Court believes that
JUSTICE KENNEDY the overtime provision of  Commerce Clause which States enjoyed b/c state courts have not
the FLSA of 1938, and before ratification of historically entertained
*case of 1st impression* sought compensation and Hill: this is the court the Constitution which Commerce Clause-based
liquidated damages federal law claims against

The powers delegated to
Congress under Art. I of
the Constitution do not
include the power to
subject nonconsenting
States to private suits for
damages in state courts
(Maine didn’t consent so
federal gov. had
insufficient interest to
justify sending attorney to
Maine to prosecute. )
making things up like is retained today
Marshall did. Constitution as drafter to
preserve the State’s
Hill: SI is INHERENT immunity from private
to Const, not derived from suits
11th or 10th Amendment!
Congress may not use its
Art. I powers to abrogate
the states’ sovereign
immunity
Certain limits are implicit
in the constitutional
principle of state sovereign
immunity:
1. Sovereign immunity
bars suits only in
absence of consent
2. Bars suits against States
but not lesser entities
the State, such an
innovation carries a
presumption of
unconstitutionality
 Federalism argument
ignores accepted
authority of Congress
to bind states to FLSA
& provide for
enforcement of fed
rights in state ct.
 Enforcement of FLSA
by Sect. of Labor
doesn’t assure
compliance
 Sovereign immunity
does not bar all judicial
review of state
compliance with the
Constitution and valid
federal law
 Rather, certain limits
are implicit in the
constitutional principle
of state sovereign
immunity
GarciaCourt is trying to
go back on decision.
 Souter: US gov suing
Maine, there is no
redress/remedy in that
event & they will deny
rights/remedy to ∏,
limit authority of
Congress which Court
recognized under this
case. (Preserve this
 holding w/o allowing
way to enforce it.)

Federal Maritime
Commission v. South
Carolina State Port
Authority
535 U.S. 743 (2002)
JUSTICE THOMAS (5-4)
South Carolina Maritime
Services asked SC Port
Authority 5 times for
permission to berth a
cruise ship at SCSPA’s
port facilities. SCSPA
repeatedly denied requests
b/c it established policy
denying berths in the port
to vessels whose primary
purpose was gambling.
State sovereign immunity
bars FMC from
adjudicating a private
party’s complaint that a
state-run port has violated
the Shipping Act of 1984
 11th Amendment  Historically Court has Dissent, Breyer, Stevensm
held that states were Souter, Ginsburg:
not subject to private without court proceeding
suits in administrative the private individual
adjudications when the cannot legally force State
Constitution was to act, to pay, or to desist
adopted and states were  Only fed. gov. may
thus presumptively institute a court
immune from such proceeding
actions Majority undermines
 11th Amendment enforcement against state
couldn’t possibly have employers of many law
covered this: interpret designed to protect worker
Constitution 1st by health and safety
determining the intent
of the framers

OTHER ARTICLE I POWERS

Taxing and Spending  power given to Congress because, like regulation, spending facilities Congress’ efforts to require that particular things be
done in exchange for federal money
CJ MARSHALL: “the power to tax is the power to destroy…”

CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT

FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
South Dakota v. Dole SD permitted 19 year olds  Art I §8, cl. 1  Art I §8, cl. 1 allows Dissent, O’Connor:
483 U.S. 203 (1987) to purchase beer
containing up to 3.2%. In
CJ REHNQUIST 1984, Congress enacted
legislation ordering Sect.
of Transportation to
withhold 5% of federal
highway funds from state
that did not adopt 21 year
old minimum drinking age.
Congress is indirectly
under its spending power
encouraging uniformity in
the State’s drinking ages,
and this is only influence,
not regulation
 21 Amendment:
Sec. 1: The eighteenth
article of amendment to
the Const. of the US is
hereby repealed.
Sec. 2: the transportation
or importation into any
State, Territory, or
possession of the US for
delivery or use therein of
intoxicating liquors, in
violations of the laws
thereof, is hereby
prohibited
Sec. 3: this article shall be
inoperative unless it shall
be ratified as an
amendment to the Const.
by conventions in the
several states, as provided
in the Const., within seven
years from the date of the
submission hereof to the
States by the Congress
Hill: not a big deal,
doesn’t restrict states from
setting drinking age (just
lays out consequences of
not following Cong
scheme).
Hill: intersection of
authority between
branches & between
state/fed gov. (not just
branches that can
intersect, also state/fed
gov. can intersect auth).
Congress to attach doesn’t agree with
condition on the receipt application what
of federal funds Congress is doing is
 Cl. 2 borrow money, regulating who can drink
spend money liquor
Congress’s spending  This is prohibited
conditional subject to four by 21st Amendment
restrictions:
1. The condition must  Perceived 10th
promote “general Amendment limitation
welfare” on congressional
2. The condition must be regulation of state affairs
unambiguous did not concomitantly
3. The condition should limit the range of
relate “to the federal conditioned legitimately
interest in particular place on federal grants
national projects or  Setting minimum
programs” and drinking age is within
4. Other constitutional the States power
provisions may provide
an independent bar to Whether the spending
the conditional grant of requirement or prohibition
federal funds is a condition on a grant or
(1-3 are uncontested) whether it is regulation
*not going to decide issue  Turns on whether the
of national drinking age requirement specifies in
some wat how money
should be spent, so that
Congress’ intent in
making the grant will
be effectuated
 Congress has no power
under the Spending
Clause to impose
requirements on the
grant that goes beyond
specifying how the
money should be spent
FEDERALISM’S LIMITS ON THE STATES (Art. I §10)

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a
Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws:
and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject
to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State,
or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Kennedy, U.S. Term Limits v. Thorton:

Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have
two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system
unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual
rights and obligations to the people who sustain it and are governed by it.

Federal and state powers overlap extensively PREEMPTION= doctrine for resolving such conflicts:
 Art. VI, cl. 2: This Constitution, and the Laws of the United States which shall 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; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Constitution Supremacy Clause stronger than its counterpart in the Article of Confederation:
1. It clearly requires state courts to implement priority of the laws passed by Congress “pursuant to” the powers
2. It establishes the rule that federal law trumps state law, just as the rule “later in time, first in priority”
3. The ultimate arbiter of such conflicts is the USSC

CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT

FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Home Building & Loan Appellant contest validity  Art. 1 §10  Statute does not impair Dissent, Sutherland:
Ass’n v. Blaisdell of the Minnesota Mortgage  Contract clause integrity of the Contracts clause means that
290 U.S. 398 (1934) Moratorium Law as being
repugnant to the contract
CJ HUGHES clause and due process and
equal protection clauses of
the 14th Amendment
**State court upheld
statute as an emergency
measure**
The law did not violate
Art. I §10 of the
Constitution which
prevents a state from
“impairing the Obligation
of Contracts” and due
process and equal
protection clauses of the
14th Amendment
*VERY
CONTROVERSIAL
(1934) last time gov. deals
with moves to deal with
Great Depression
 1935: SC is
knocking down
statutes by federal
gov. to respond to
bad economic
times
U.S. Term Limits v. Arkansas set ballot access
Thornton limits for Congressional
514 U.S. 779 (1995) candidates in the state, in
addition to federal
JUSTICE STEVENS qualification from
Constitution
 AZ Consituttion
prohibits name of
 Due process and
equal protection
clauses of the 14th
Amendment
 Emergency Power
Hill: the federal gov.
interpreted the Contracts
Clause in a way that gave
state broad latitude to
exercise police power
 Art. I, §2, cl. 2
 Art. I, §3, cl. 3
 10th Amendment
 Uniformity (What can
states do to structure
who can rep them?).
mortgage the terms of the K could not
indebtedness interest be altered any of them
obligation still exists,  Majority fail to see
does not affect validity future gradual
of the sale or right of encroachments upon
mortgage-purchase to the sanctity of private
remedy if mortgagor and public Ks
fails to redeem within  Minnesota is trivial
period compared to far more
 Emergency does not serious inroads upon
create power but may limitation of the
furnish the occasion for Constitution
exercise of power
 Constitutional Strict provision which
prohibition should be forbids state action under
construed as to prevent any circumstances, if it has
limited and temporary the effect of impairing the
interpositions with obligation of Ks
respect to the
enforcement of Ks if
made necessary by a
great public calamity
Marshall Constitution is
adapted to the various
crises of human affairs
 Contrary to the Dissent, Justice Thomas,
fundamental principle of CJ, O’Connor, Scalia:
our representative Nothing in Constitution
democracy embodied in deprives state from
the Constitution, that prescribing eligibility
“the people should requirements on Congress
choose whom they candidates because
please to govern them.” Constitution is silent on
 otherwise-eligible  Violates Art I,
candidate for Congress Qualifications Clause
from appearing on Constitution forbids
election ballot if states from adding to or
candidate has already changing qualifications
served three terms in of Art I because not
the House of Rep or original powers of States
two years in Senate. (not 10th Amendment)
 Constitution divested
Amendment violate the states of this power
Federal Constitution (even if had it ever).
Just because restriction
on ballot access doesn’t
matter because it
indirectly DQ’d
incumbents from further
service.
Concurring, Justice
Kennedy: Federal right of
citizenship that states
couldn’t interfere with &
this Amendment intrudes
on federal domain
 cites McCulloch that
can’t let states add to
fed requirement.
Geier v. American Honda Cases focuses on the 1984  FMVSS 208 This court pre-emption
Company version of the Federal  Article VI, §2 cases ordinarily assume
539 U.S. 861 (2000) Motor Vehicle Safety  “express” v. compliance with the state
standard promulgated by “implied” pre- law duty in question
JUSTICE BREYER the Dept. of emptive consent  Court does not put
Transportation. FMVSS  Supremacy clause burden of proving pre-
208 required auto emption on petitioner
manufacturers to equip simply find
some but not all 1987 unpersuasive their
vehicles with airbags. argument attempting to
matter.
 People of AK have
reserved powers on
selection of reps for
Cong. Qualifications
Clause only restricts
state power from
abolishing eligibility
requirements in
Constitution
People are sovereign, but
there are 2 diff theories of
sovereignty AK
Amendment is OK because
elected by people & state
didn’t commandeer Const,
just added at will of people.
 2 theories:
 1. Sovereign as
whole (Majority).
 2. Sovereign by
acting through state
(Dissent)
Dissent, Justice Stevens,
Souter, Thomas, and
Ginsburg: “This is a case
about Federalism”
 Raises Qs. concerning
the way in which federal
gov. may exercise its
undoubted power to oust
state courts of their
traditional jurisdiction
 undermine the gov.’s
Common law “no airbag” demonstration of actual
action conflicts with conflict  Majority’s rule not
FMVSS 208  Supremacy clause
allows federal gov. to
have a standard that  Because neither the text
phases in various types
of passenger restraints
over time
 Separate sovereigns thus
over common-law tort
actions
enacted by Cong or
found in executive order
of the stat. nor the text
of the regulation
contains any indication
of an intent to pre-empt
petitioners’ cause of
action and Dissent
cannot agree with
Court’s unprecedented
use of inferences from
regulatory history and
commentary as a basis
for implied pre-emption,
convinced that Honda
has no overcome
presumption against pre-
emption in this case
we presume that state
laws shouldn’t be
preempted unless its
necessary to do so
 Safety standard says
nothing about such
 Prevents federal
government from
running amuck with
potentially
boundless doctrine
of implied conflict
preemption
 Thus Congress
should give notice
American Insurance Negotiation between
Association v. Garamendi Clinton and German
537 U.S. 110 (2003) Chancellor Shroder.
Germany agreed to set up a
JUSTICE SOUTER foundation that would be
used to compensate all
those who suffered at the
hand of German
companies during Nazi
regime.
Then CA made up its own
statute (HVIRA) for CA
Insurance Cos. that sold to
Europeans to make names
public with sanctions.
HVIRA interfered with
federal government
sovereignty on foreign
affairs
 HVIRA  HVIRA interferes with Dissent, Justice Ginsburg,
 Supremacy Clause the President’s ability Stevens, Scalia, Thomas:
 Art II to conduct foreign There should have been an
policy. express intent for pre-
 Exercise of state power emption (same as American
concerning foreign Honda Motor)
Hill: dormant foreign relations must yield to  No executive agreement
commerce clauseCt not federal gov. policy or to or other formal
going to let CA burden general authority of expression of foreign
foreign commerce Exec to decide what policy expressly
because structure of policy should be disapproved of state
Constitution permits omitted. disclosure laws like
independent role in  Here, clear conflict HVIRA.
assuring federal foreign between HVIRA &  Cts overstepped when
policy control. Pres’ foreign policy. they failed to rely on
 Role of court, not  Executive agreement is legislative or executive
executive branch not subject to text, choosing inference
ratification like a treaty & implication to
is preempt state law on
 President has “broad” foreign policy.
power not enumerated
powers Cross reference w/
 President’s power is YoungstownCA may be
based on what interfering with foreign
presidents have done in policy authority of the
the past “this power President.
having been exercised”
Also preemption broader
with respect to foreign
policy.
 Diplomatic discretion.
 Consider strength of
state interest when
deciding how serious a
conflict must be show
before state law
preempted.
FEDERALISM: DORMANT COMMERCE CLAUSE AND SUBSTANTICE DUE PROCESS
The idea that judiciary is going to protect interstate commerce is odd because Commerce Clause is in Art. I, by CONGRESS
 SCALIA: condemning whole idea of dormant commerce clause

2 Frameworks for analyzing substantive due process so far….

1. Societal; West Coast Hotel: Liberty protected by the constitution is societal [in this opinion]
2. Individual: In Lochner, liberty was individual.

CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT

FACTS PATTERNS
Wilson v. Black Bird Creek
Co.
27 U.S. (2 Pet.) 245 (1829)
CJ MARSHALL
TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
The Black Bird Creek  Dormant Commerce We do not think that the act 
Marsh Company was Clause empowering the Black
empowered to make a Bird Creek Marsh
construct a good and Company to place a dam
sufficient dam across the across the creek, can,
creek. The company under all circumstances
proceeded to erect and of the case, be considered
place in the creek a dam, as repugnant to the power
by which the navigation of to regulate commerce in
the creek was obstructed. its dormant state, or as
being in conflict with any
Act allowing dam to be law passed on the
built was not in conflict subject.
with dormant commerce Commerce Clause
clause originates with this case,
refers to negative
implications of

United Haulers v. Oneida- Oneida and Herkimer
Herkimer Solid Waste counties adopted a local
Management Authority "flow control" ordinance
550 U.S. 330 (2007) requiring locally-produced
garbage to be delivered to
CJ ROBERTS local publicly-owned
facilities. UH argued that
by prohibiting the export
of waste and preventing
waste haulers from using
less expensive out-of-state
facilities, the ordinance ran
afoul of the dormant
Commerce Clause
Commerce Clause
(absence of power to
improperly burden)
interstate commerce).
 Commerce Clause  the Counties' flow Dissent, Alito, Stevens,
control ordinances, Kennedy:
which treat in-state  This case is not
private business interests meaningfully
exactly the same as out- distinguished from
of-state ones, do not Carbone
"discriminate against Carbone  the preferred
interstate commerce" for facility was nominally
purposes of the dormant owned by a private
Commerce Clause contractor and it would be
 Particularly hesitant to misleading to describe the
interfere with Counties' facility as private
efforts under the guise  Court has never treated
of Commerce Clause discriminatory
because disposal of legislation with greater
waste is a traditionally a deference simply
local government because the entity
function favored by that
**Everything changes when legislation was owned
it’s a public business (UH by the government
not Carbone)  No basis for the Court's
What makes a business assumption that
“public”? discrimination in favor
of an in-state facility
Concurring, Justice Scalia: owned by the
would enforce a “negative” government is likely to
self-executing CC: serve "legitimate goals
1. against state law unrelated to
facially discriminates protectionism
against interstate  holding rest on a
commerce distinction between
2. against state law traditional governmental
indistinguishable from a functions and their
type of law previously nontraditional
 held unconstitutional by
Court
issue of flow control meets
neither
Concurring, Justice
Thomas: The dormant
Commerce Clause is not a
roving license for federal
courts to decide what
activities are appropriate for
state and local government
to undertake, and what
activities must be the
province of private market
competition.
 Constitution vests that
fundamentally
legislative choice in
Congress
counterparts, it cannot
be reconciled with prior
precedent
Garcia overruling National
League
NY v. US overruling South
Carolina v. US
Counter Arguments:
 that Counties'
ordinances discriminate
against interstate
commerce under
Carbone


 To the extent Congress

does not exercise its
authority to make that
choice, the Constitution
does not limit the
State’s power to
regulate commerce

**Thomas wants to end

Pierce v. Society of the Oregon's Compulsory
Sisters of the Holy Names Education Act of 1922
of Jesus and Mary requires parents of a child
268 U.S. 510 (1925) between 8-16 to send him
to a public school for the
Dormant Commerce
Clause
 Substantive DP  Rights guaranteed by 
 14th Amendment the Constitution may
not be abridged by
legislation which has
no reasonable relation
JUSTICE period of time a public
McREYNOLDS school shall be held during
the current year in the
district where the child
resides
SS: private school
pursuing regular courses in
addition to religious
instruction
The Act of 1922
unreasonably interferes
with the liberty of parents
and guardian to direct the
upbringing and education
of children under their
control
Lochner v. New York Petitioner had been
198 U.S. 45 (1905) indicted under the statute,
and claimed it violated
JUSTICE PECKHAM (5- Due Process. Statute
4) limited the number of
hours a baker could work.
Court Declared
unconstitutional a law
which imposed a limit on
the number of hours bakers
could work
to some purpose within
the competency of the
state
 Appellees business and
property are threatened
with destruction
through the
unwarranted
compulsion which
appellant are exercising
over present and
prospective patrons of
their schools
 Law infringes on the
right of parents to
control the upbringing
of their children and
thus impermissibly
violated the liberty
guaranteed under the
DP clause of the 14th
Amendment
 Substantive DP Which shall prevailthe Dissent, Justice Holmes:
 State Police powers right of the individual to "LIBERTY" in the 14th
 14th Amendment labor for such time as he Amendment is perverted
 5th Amendment may choose or the right of when it is held to prevent
 Freedom of Ks the state to prevent the the natural outcome of a
individual from laboring, or dominant opinion, unless it
from entering into any can be said that a rational
contract to labor, beyond a and fair man necessarily
certain time prescribed by would admit that the statute
the State proposed would infringe
 Each state is sovereign fundamental principles as
and possess police they have been understood
power by traditions of our people
Court has been guided by and our law
rules of a very liberal  Rejects majority’s
nature, the application of premise that the
which has resulted, in
numerous instances
upholding the validity of
state statutes
 “A constitution is not
If this statute is valid, and
if, therefore, a proper case is
made out in which to deny
the right of an individual, to
make contract for the labor
of the employee under the
protection of the provisions
of the Federal Constitution,
there would seem to be no
length to which legislation
of this nature might not go.  Emphasized the need for
1. Freedom of K is a basic
right protected as
liberty and prop. Rights
under the DP of the 14th
Amendment
2. Gov. could interfere
with freedom of K only
to serve a valid police
purpose: to protect the
public safety, public
health, or public morals  Doctrine formulated by
3. It was Judicial role to
carefully scrutinize
legislation interfering
with freedom of K to
make sure that it served
a police purpose
Constitution should be
used to limit gov
regulation and protect a
laissez-fair economy
intended to embody a
particular economic
theory, whether of
paternalism and the
organic relation of the
citizen to the State or of
laissez faire”
Dissent, Harlan, White,
Day:
judicial deference to
legislative choices
 Legislation was a
reasonable way a
reasonable way to
protect the health of
bakers who suffered
serious medical
problems
Counter Argue/ Compare:
the Court were
undesirable
 Court was wrong in
protecting freedom of
K as a fundamental
right
 Court erred in
concluding that the fov.
Only could interfere
with this right to

West Coast Hotel v. Parrish
300 U.S. 379 (1937)
CJ HUGHES
Elsie Parrish was a
chamber maid at the West
Coast Hotel, bringing suit
to recover the difference
b/w the wages she was
paid and the minimum
wages pursuant to
Washington law
Washington's "Minimum
Wages for Women" law
does not violate the liberty
of a contract as construed
in the Due Process Clause
of the 14th Amendment?
enhance public health,
public safety, or public
morals
 Gov. should be able to
regulate to achieve
many other goals,
including protecting
workers, consumers,
and the public generally
 Inconsistent West
Coast Hotel allowed
max hour laws for
women, but not
minimum
 Substantive DP  Valid exercise of police Dissenting: Justice
power in light of current Sutherland, VanDevanter,
Substantive due process econ conditions. McReynolds, Butler:
appears for first time here,  Women need to be paid Meaning of Constitution
comes from 14th Amend equally, otherwise their does not change with the
§1…diff from procedural support falls to state. flow of economic events
due process.  Employers & employees
not on equal footing in  Women today " stand
K process. upon a legal and
 Liberty in freedom of K political equality with
not infringed because men. There is no longer
there is no set wage, just any reason why they
wage floor. should be put in a
 There is no legislation different class in respect
that has to be couched in of their legal right to
all-embracing terms make contracts
(this one is directed at
social position unique to  Difference of sex affords
women, so not arbitrary no reasonable ground for
discrimination). making a restriction
 Court is adandoning the applicable to the wage
principles of Lochner contracts of all working
 There is additional and women from which like
 compelling
consideration which contracts of all working
recent economic men are left free."
experience has brought
into strong light 

State Farm v. Campbell To avoid a head-on
538 U.S. 408 (2003) collision with Campbell,
who was driving on the
JUSTICE KENNEDY wrong side of the road
toward incoming traffic,
Ospital swerved onto the
shoulder, lost control of his
car, and collided w/ a
vehicle driven by Slusher.
Ospital was killed, Slusher
was permanently disabled.
Campbell was fine.
A punitive award of $145
million was excessive and
unconstitutional. It was
neither reasonable nor
proportionate to the wrong
committed, and it was thus
an irrational, arbitrary, and
unconstitutional
deprivation of the property
of the insurer.
Katzenbach v. Morgan Voters in NY brought suit
 Substantive DP  The Court awarded
 DP Clause of 14th punitive damages to
Amendment punish and deter
conduct that bore no
Excessiveness Test for relation to the
Punitive Damages Campbell’s harm
Guideposts  Punitive damage
1. Degree of awards unreasonable/
Reprehensibility of disproportionate to
Misconduct (willful, wrong, thus
wanton, reckless?) unconstitutional
2. Proportionality btw deprivation of insurer’s
actual/potential harm- property
suffered by plaintiff and  Neither the wealth of
punitive damages the insurer nor the fact
awarded by jury that its nationwide
3. Comparability- misconduct went
Comparability btw largely unpunished
punitive damages justified punitive
awarded by jury and civil damages which were
penalties authorized or grossly
imposed in comparable disproportionate to the
cases compensatory damages
awarded for the actual
Hill: Constitution harm to the insured
does not refer to  DP Clause of the 14th
punishment Amendment prohibits
the imposition of
grossly excessive or
arbitrary punishments
on a tortfeasor
 § 5 of the 14th  Original drafters of the
Dissent, Justice Scalia: The
DP Cluase provides no
substantive protections
against “excessive” or
“unreasonable” awards of
punitive damages
Dissent, Justice Thomas:
Constitution does not
constrain the size of
punitive damages awards
Dissent, Justice Ginsburg:
The decision overstepped
states' traditional territory to
regulate punitive damages.
 In a legislative scheme
or state high court’s
design to cap punitive
damages, the work of
setting benchmarks
can’t be questioned
 Boldly out of order to
impose on States by
this Court under the
banner of substantive
DP the numerical
controls of the majority
Can Congress do this?
384 U.S. 641 (1966) to challenge Voting Rights
Act of 1965 on grounds
JUSTICE BRENNAN that requirement of literacy
in English disenfranchised
citizens under due process
clause of 14th Amendment
  § 5 as giving Congress
§4e is a proper exercise of
the powers granted to
Congress by §5 of 14th
Amendment & that by
force of Supremacy
Clause, the NY English
literacy requirement can’t
be enforced to the extent
that it’s inconsistent w/
§4e.
Hill: Ever since this
case the SC has tried to
narrow Necessary &
Proper Clause and §5 of
Congressional authority
like in City of Boerne
Amendment "Congress both the Necessary and Vertical federalism
shall have power to Proper Clause and then
enforce, by appropriate latter-day framers of Dissent, Justice Harlan.
legislation, the the 14th Amendment Stewart: Literacy
provisions of this would find this requirement didn’t violate
article." appropriate legislation Equal Protection under 14th
Amend. §4e was invalid.
the power to add to--  Court has confused the
but not subtract from-- issue of how much
protections that the enforcement power
Court finds contained Congress possesses
in the 14th Amendment under § 5 with the
 Exercise of Cong distinct issue of what
power to enforce 14th questions are
Amendment in way that appropriate for
precludes enforcement congressional
of state law doesn’t determination and what
depend on whether questions are
state law prohibited by essentially judicial in
substantive due nature
process.
 “nationalist” Congress could not use its
approachCongress §5 power to independently
may independently determine the meaning of
interpret the the 14th Amendment, but
Constitution and even rather only could provide
overturn the SC remedies for practices that
1. granting PRs the right to the Court has deemed
vote would empower them unconstitutional
and help them to eliminate
discrimination If Congress can use its
2. Congress could find that power under §5 to interpret
the literacy test denied the Constitution, it
equal protection conceivably could use this
authority to dilute or even
Federal government with negate constitutional rights
limited legislative authority
and most governance left to
 the states

City of Boerne v. Flores Church denied building   While Congress may Dissent, O’Connor,
521 U.S. 507 (1997) permit because historic enact such legislation Breyer: this case was
district. Archbishop as the RFRA, in an wrongly decided & Ct
JUSTICE KENNEDY (6- brought suit challenging attempt to prevent the should’ve directed parties to
3) permit denial under RFRA abuse of religious brief Q of whether that case
(Religious Freedom freedoms, it may not represented the correct
Restoration Act of 1993) determine the manner understanding of Free
in which states enforce Exercise Clause
RFRA exceed Congress’ the substance of its
power legislative restrictions **no dissenters challenged
 No evidence to suggest Kennedy’s narrow view of
that Boerne’s historic Congress’s power under §5
preservation ordinance of the 14th Amendment
favor once religion over
another, or that it was Wanted Court to reconsider
based on animus or Employment Division v.
hostility for free Smith narrowly
religious exercise interpreted the free exercise
 Even though Cong clause prompting RFRA
afforded broad powers  Urges majority to
under Enforcement reconsider
Clause of 14th Amend,
in most cases, state Free Exercise Clause: 1st
laws falling under Amendment “Congress
RFRA not motivated by shall make no law
religious bigotry respecting an establishment
 Allows considerable of religion, or prohibiting
Cong intrusion into the free exercise thereof…”
state auth to regulate
for health/welfare of
citizens
Preserves the Court as the
authoritative interpreter of
the
ConstitutionMarbury: “if
Congress could define its
 own powers by altering 14th
Amendment’s meaning, no
longer would Consitution
be ‘superior paramount law
unchangeable by ordinary
means.’ It would be on a
level with ordinary
legislative act altering
legislation

Concurring, Stevens:
RFRA by preferring
religion, violates 1st
Amend clause prohibiting
establishment of religion

JUDICIAL PROTECTION OF INTERSTATE COMMERCE

CASE NAME/ FACTS/ LISTS: MAJORITY DISSENT
CITIATION FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Philadelphia v. New Jersey NJ passed law stopping all  Commerce Clause “The opinion of the Court Dissent, Justice Rehnquist,
437 U.S. 617 (1978) the garbage from coming through the years have CJ: State not required
in that originated outside reflected an alertness to the under Commerce Clause to
JUSTICE STEVENS state, Philly wanted evils of “economic continue to receive trash
somewhere to put trash. isolation” and from other states
protectionism, while at the  States should have been
Both on its face and in its same time recognizing that free to prohibit
plain effect, Ch. 363 incidental burden on importation of solid
violates this principle of interstate commerce may be waste under
nondiscrimination against unavoidable when a State health/safety concerns.
articles of commerce legislates to safeguard the **did not challenge
coming from outside the health and safety of its Kennedy’s narrow view of
state violates CC people.” Congress’ power under §5
Key Question Whether
the state law discriminates
against out-of-staters or
whether it treats in-staters
and out-of-staters alike?
 Didn’t Marshall
address this question in
Gibbons?
Intercourse=dealing with
transactional interaction
  If NJ could do this,
 State statute not of 14th Amendment**
preempted, but violated
Commerce Clause Majority’s restrictive
because it imposed on interpretation can be
out of state commercial criticized for denying
interest the full burden Congress the power to
of conserving NJ’s expand the scope of rights.
remaining landfill
space Kennedy equates SC
 State isolated its self decision of Marbury failing
from that problem by to find a right in the
barring incoming trash Constitution with the
conclusion that no right
then all other states can be created by
would problem Congress just because
TRAFFIC IS WASTE right doesn’t exist in
Constitution does not mean
Structural Rationale it does through another
Congress has power to legal source
regulate commerce among
the States, may subject of
potential federal regulation
escape congressional
attention b/c of their local
character.
 Absent federal
legislation, these
subjects are open to
State control so long as
they act w/I the
restraints imposed by
the CC
 ONE STATE, WHEN
DEALING WITH
ANOTHER CANNOT
PLACE
THEMSELEVE IN
ECONOMIC
 ISOLATION

Granholm v. Heald Sale of wine from out-of-  Commerce Clause  State policies are
544 U.S. 460 (2005) state wineries to  21st Amendment protected under the
consumers in Michigan  Twenty-First
JUSTICE KENNEDY and New York state law Amendment when they
regulated sale of wine treat liquor produced
from out of state wineries out of state the same as
to consumers through its domestic equivalent.
direct sales.  The instant cases, in
contrast, involve
The discrimination is straightforward
contrary to the Commerce attempts to
Clause and is not saved by discriminate in favor of
the Twenty First local producers
Amendment  Laws deprive citizens
of equal access to
markets of other states
 Allowing states to
discriminate invites
multiplication of
preferential trade areas
destructive to interstate
commerce
 States didn’t
demonstrate that
discrimination was
necessary to advance
public welfare
(underage drinking) or
protecting against tax
evasion.
Whatever the aims of the
21st Amendment was it was
not discriminate against out
of state goods because its
inconsistent with the
Commerce Clause which
Dissent, Justice Stevens,
O’Connor: Looked to §2 of
the 21st Amendment “the
transportation or
importation into any state or
possession of the US for
delivery or use therein of
intoxicating liquors, in
violation of the laws
thereof, is hereby
prohibited” B/c laws
regulating transport/import
of liquor, exempt by 21st
Amend from scrutiny under
Commerce Clause
Dissent, Justice Thomas,
CJ, Stevens, O’Connor:
100 years ago court
repeatedly invalidates, as
inconsistent with the
negative CC, state liquor
legislation that prevented
out-of-state businesses from
shipping liquor directly to a
State’s residents21st
Amend & Webb-Kenyon
Act displace dormant
Commerce Clause &
required sustaining
Constitutionality of
restrictions.
((Webb-Kenyon Act—
prohibit transport of liquor
into state to be used in
violation of state law))

Kassel v. Consolidated Iowa prohibited wide load
Freightways trucks on its highways, w/
450 U.S. 662 (1981) certain limited exceptions.
JUSTICE POWELL Iowa truck-length
limitation
unconstitutionally burden
interstate commerce
The Court will evaluate
state laws restricting truck
size on a case-by-case
basis considering the
specific evidence as to the
safety benefits of the law
compared to their burden
on interstate commerce.
trumps its
 Commerce Clause  The balance must be Dissent, Rehnquist, CJ,
 Federalism struck in favor of the Stewart: SC only has
federal interest limited authority to review
 The toal effect of the state legislation under
law as a safety measure Commerce Clause
in reducing accidents  Iowa statute valid
and casualties is so highway safety
slight and regulation entitled to
problematical that ti highest presumption of
does not outweigh the validity.
national interest in  Benefits from
keeping interstate regulation rationally
commerce free from related to vehicle
interference that lengths not slight or
seriously impede it problematic
 State failes to present Forcing Iowa to yield to
any persuasive the policy choices of
evidence that 65-ft neighboring States
doubles are less safe perverts the primary
then 55-ft singles purpose of the CC
 Iowa is not out of step  Whenever state
with ALL other enact more
Midwestern and stringent safety
Western states measures than it
substantially burdens neighbors, in areas
the interstate flow of effecting
goods by truck commerce, the
safety law will have
Concurring, Brennan, the incidental effect
Marshall: Purpose of of deflecting
limiting use of highways interstate commerce
by deflecting through to the neighboring
traffic was protectionist state
thus impermissible under
CC Hill: Dissent is a good
 Iowa may not shunt federalism/structural
off its fair share of argument that could win a
 the burden of future case
maintaining
interstate truck
routes or increase
traffic on
neighboring
highways in order
to decrease hazards
on their roads

South-Central Timber Alaska corporation logs &  Commerce Clause Alaska is not merely Dissent, Rehnquist,
Development v. Wunnicke sells abroad (mostly  Market Participation subsidizing local timber O’Connor: Majority
Japan), sold unprocessed processing in an amount argument is artificial and
JUSTICE WHITE logs. Alaska statute POSSIBLE EXAM Q.  "roughly equal to the unconvincing
required processing in Is this case a return to difference between the  Overlooksantitrust
state governmental/proprietar price the timber would laws which apply to a
y distinction rejected by fetch in the absence of such State only when it is
Alaska's restriction on the Court in the “active” a requirement and the action as a market
export of unprocessed CC context in Garcia? amount the state actually participant (immune if
timber from state-owned Why does this distinction receives" Under Alaska acting as a market
lands are exempt from only apply in Dormant requirement, the choice is regulator Alaska is
Commerce Clause scrutiny CC cases? Why are we made for him: if he buys not)
under the "market- even talking about timber from the state he is
participant doctrine" government proprietary not free to take the timber If Alaska is in the market
cases make clear that if a distinction id Garcia out of the state prior to with the specific K
state is acting as a market rejected it processing market participant
participant, rather than a  States may not impose exception Alaska wins
market regulator, the conditions, whether by
dormant Commerce statute, regulations, or If Alaska is treated as a
Clause places no contract, that have a state regulating by the
limitations on it activities substantial regulatory condition violates
(applied in three cases) effect outside of that Dormant Commerce Clause
particular market
 State market participant Hill: Court keeps
vs. market regulator concept of market narrow
Alaska is market participant because if they do not then
in logging. However, then
Alaska was regulating
 farther down the production
line than it was involved in
business, so no exception
allowed. Further, burden on
foreign commerce b/c
foreign buyer couldn’t use
what they purchased freely
b/c had to process in state

Line is drawn between

ability of a state to prefer its
own citizens in the initial
disposition of goods when it
is a market participant and a
state’s attachment of
restrictions on disposition
subsequent to the goods
coming to rest in private
hands

United Building and Municipal ordinance  Art. 4, §2, cl.1 “The The ordinance is under the Dissent, Blackmun: P&I
Construction Trades required min. 40% of the Citizens of each State PI clause because state and clause not intended to
Council v. City of Camden employees of contractors shall be entitled to all municipal actions are prevent discrimination
465 U.S. 208 (1984) working on city Privileges and indistinguishable, and among state residents.
construction be city Immunities of Citizens ordinance is not immune  Trace back to Articles
JUSTICE REHNQUIST residents in the several States” because discriminates of Confederation
 14th Amendment against in-state and non- where it meant between
The ordinance violates  Vertical v. Horizontal state non-residents of states, not within states
privilege and immunity Federalism Camden.
clause remanded back to  Proper standard for
NJ SC not thrown out so review = whether
maybe privilege and ordinance burdens P&I
immunity could cover and if there is a
this expanding federal substantial reason for
litigation discrimination
Market Participant Exception
 A state may favor its own citizens in dealing with government-owned business and in receiving benefits from government programs
o So if a state us literally a participant in the market (ie state owned businesses) and not a regulator, the dormant CC does not apply
  Discrimination of out-staters, usually impermissible, is allowed
o Even though the laws will be permissible under dormant CC, the laws might be vulnerable to toehr constitutional challenges such as
based on the privileges and immunities clause of Art. IV or equal protection
Criticism:
 The Dormant CC is meant to stop protectionist actions by state governments
o protectionism should not be allowed regardless of whether the state is acting in a proprietary or regulatory capacity
 No clear distinction between situation where the government is acting as a regulator and when it is a market participant
Defense:
 Market Participant Exception allows citizens in a state to recoup the benefits of the taxes they pay
o Justified by the sense of fairness in allowing a community to retain the public benefits created by its own public investment
 State spending programs are less coercive than regulatory programs or taxes with similar purposes
o Less hostile to other states and less consistent with the conception of union than discriminatory regulation or taxation
o BUT under other constitutional provisions, privileges and immunities clause and equal protectiosn, states are prohibited from
favoring in-staters over out-of=staters in receiving benefit from the government
 Ie: United Building v. Camden: declaring unconstitutional under the privileges and immunities clause a city law that favored
hiring of city residents for city-funded construction projects

The Privilege and Immunities Clause of Art IV, §2

 “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”
o SC has interpreted this provision as limiting the ability of a state to discriminate against out-of-staters with regard to fundamental
rights or important economic activities
 Prevents State from discriminating against citizens of other States in favor of its own
 Relationship to Dormant Commerce Clause overlap
o Both can be used to challenge state and local laws that discriminate against out-of-staters
o Differences
 1. PI Clause can be used only if there is discrimination against out-of-staters
 Dormant Commerce Clause can be used to challenge state and local laws that burden interstate commerce regardless of
whether they discriminate against out-of-staters
 2. Corporations and aliens can sue under dormant commerce clause but not the PI Clause
 PI Clause is expressly limited to “citizens” no limit in regard to dormant commerce clause
 3. Two exceptions to dormant commerce that do not apply to PI Clause
 If Congress approves state laws they do not violate dormant commerce clause
 If Congress has acted commerce power is no longer dormant
 But congressional approval does not excuse a law that violate the PI Clause
BALANCE OF POWERS: JUDICIAL BRANCH
Article III - The Judicial Branch Note
Section 1 - Judicial powers
 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times,
receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Section 2, cl. 1: Jurisdiction  court hears cases with controversies
 Two kinds of cases
o Federal question
o Diversity jurisdiction
Section 2 cl. 2: cases affecting ambassadors
 SC have appellate and original jurisdiction
 "with such exceptions, and under such regulations as the congress shall make"
o Examples of such Doctrine:
 “Standing” (we don’t want to hear this range of cases)
 “Political Questions”
 “National Security Concerns” in which Executive Branch can say the court can’t hear this case because if it did it would
reveal too much about intelligence or national security
*Political question: will not answer so as not be in conflict with another area
 
Who should be the Authoritative Interpreter of the Constitution?
 All government officials and institutions are required to engage in Constitutional interpretation
 No Authoritative Interpreter: each branch would have equal authority to determine the meaning of the constitutional provisions, and
conflicts would be resolved through political power and compromise
o If Congress and the president believe that a law is constitutional, they could disregard a judicial ruling of unconstitutionality
o Or President can refuse to enforce a law he believes to be unconstitutional
 Each Branch is Authoritative in Certain Areas: each branch would be the authoritative interpreter for some constitutional provision
o Constitution does not specify who should interpret the document, some institution would need to allocate interpretive authority
among the branches of the government
 o Describes current system of constitutional interpretation
 Court frequently have held that challenges to the president’s conduct of foreign policy (ie Vietnam War) pose political
question for other branches of government to interpret
 The Judiciary is the Authoritative Interpreter: assigned role of umpire resolve disputes and are final until reversed by constitutional
amendment
o Endorsed by Marbury “It is emphatically the province and duty of the judicial department to say what the law is.”
 Court is final arbiter
 Could be consistent with 1st approach that there is no final arbiter of the meaning of the Constitution
 Judiciary may interpret the Constitution in deciding cases and that it is not required to defer to legislative or executive
interpretation
o US v. Nixon: SC held that it was judiciary’s duty to determine the meaning of the Constitution
 CJ Warren “The President’s counsel read the Constitution as a providing an absolute privilege of confidentiality for all
Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding in Marbury
that ‘it is emphatically the province and duty of the judicial department to say what the law is.’”
 Limited ruling that the judiciary has the final word in cases raising the question of access to evidence necessary from criminal
trials
 Thus, court is the final arbiter in matters relating to the judiciary’s powers under Art. III

Shanor’s List of Cases that court doesn’t adjudicate:

 Advisory Opinions
 Standing: the plaintiff is not the proper party to bring a legal action.
 Ripeness: the controversy is premature; the Court views it as inadequately developed factually.
 Mootness: the case has become irrelevant b/c the dispute between parties has ended
 Political Questions: the issue is best left to Congress or the President.

Sources and Methods of Judicial Decisions

METHOD DEFINITION EXAMPLE

TEXTUALISM a literal reading of the words of the Constitution. This can be supplemented Scalia is a textualist. This was used in McCulloch v.
by structural textualism, in which the meaning of particular word may be Maryland
clarified by examining their relationship to other provisions of the text.  SCALIA is more than just a textualist
ORIGINALISM To resolve textual ambiguity, justices often examine the original intention of Scalia
the framers. This makes judicial decision-making less subjective, as the Thomas
justice’s role is merely to implement the desire of the drafters. We look at John Marshall
notes on constitutional convention. Black

 The 'original intent theory,' which holds that interpretation of a **even Amar
written constitution is (or should be) consistent with what was meant
by those who drafted and ratified it.
 The 'original meaning theory,' which is closely related to textualism,
is the view that interpretation of a written constitution or law should
be based on what reasonable persons living at the time of its adoption
would have declared the ordinary meaning of the text to be. It is with
this view that most originalists, such as Justice Scalia, are associated.
PRAGMATISM  Shows how a judge who belongs to a particular school of Breyer
interpretation has acted inconsistently with the canons of that school
in a particular case.
 Rejects a preferred method for reading the constitution.
 They use textual glasses, historical glosses, and philosophical
arguments to argue for a particular reading.
 The pragmatist argues his flexibility provides a better mechanism to
reach decisions than any 1 technique
PRECENDENT  Justices use all of these techniques within a framework of precedent.
 SC almost never overturns a previous decision concerning statutory
interpretation.
 If they are “wrong” Congress can pass a statute amending the
interpreted legislation to overturn the SC construction
STARE  this doctrine carries such persuasive force that we have always
DECISIS required a departure from precedent to be supported by speciall
justificiation.

CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT

FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Marbury v. Madison Marbury was an intended  Judiciary power 1. Yes. Marbury has a right Hill: This shapes
5 U.S. (1 Cranch) 137 recipient of an to the commission right structure of government by
(1803) appointment as justice of
the peace. Marshall
CJ MARSHALL (S.O.S.) failed to deliver 1. Does Marbury have a
commission, new S.O.S. right to the commission?
Madison refused to deliver 2. Does the law grant
Marbury a remedy?
Invoked concept of 3. Does the Supreme
judicial review Court have the authority
to review acts of Congress
and determine whether
they are unconstitutional
and therefore void?
4. Can Congress expand
the scope of the Supreme
Court’s original
jurisdiction beyond what
is specified in Article III
of the Constitution?
5. Does the Supreme
Court have original
jurisdiction to issue writs
of mandamus?
originates in act of reading Const too narrowly
Congress passed Feb. 1801 & reading judicial act too
 Commission for willfully (uses law to get to
Marbury was signed by own end).
Adams and seal was
affixed thus taking
affect
2.Yes. The law grants
Marbury a remedy very
essence of civil liberty that
right of every individual to
claim protection of the law
when he receives injury
3. Yes. The SC has
authority to review acts of
Congress and determine
them
unconstitutional/void
duty of the judicial branch
to say what the law is
 If two law
conflictcourt makes a
decision
4. No. Congress cannot
expand scope of SC’s
original jurisdiction beyond
Art. III if it was intended
to leave discretion of
legislature to apportion
judicial power between SC
and inferior courts Art III
would be meaningless
 Constitution has
declared this jurisdiction
to be original

Martin v. Hunter’s Lessee After VA confiscated land
14 U.S. (1 Wheat.) 804 inherited by loyalist under
(1816) 1781 Act and grated to
Hunter, Martin brought
JUSTICE STORY claim for title. VA state
court upheld claim, but
reversed by highest VA
court. USSC reversed
under Treaty of Paris and
VA appeals court refused
to obey USSC mandate,
claiming its appellate
power doesn’t apply to
pending state cases.
5. No. SC does not have
original jurisdiction to issue
writs of mandamus a
mandamus may be directed
to courts, to issue such a
writ to an officer for
delivery is a matter of
original jurisdiction
Can the SC Declare laws
unconstitutional? Marshall
argued that the Constitution
imposes limits on
government powers and that
these limits are meaningless
unless ubject to judicial
enforcement “The powers
of the legislature are defined
and limited; and that those
limits may be mistaken or
forgotten, the constitution is
written” borrowing
Hamilton’s language in
Federalist No.78
 Preamble of  It was clear from 
Constitution history and the
 Article III, Sec. 2, Cl. preamble of the
2 Constitution that the
 Supremacy Clause federal power was
given directly by the
people and not by
the States
 Article III, Sec. 2, Cl.
2 demonstrates a
textual commitment to
allow Supreme Court
review of state decisions
  If the Supreme Court
Claim: Action in ejectment could not review
decisions from the
Whether Congress could highest State courts, the
expand the Court's state courts necessarily
appellate jurisdiction or is would be excluded from
it violative of the 10th hearing cases involving
amendment? questions of federal
law and states can
Held: Federal appellate already do this
power extends to state  Supremacy Clause states
court actions that the federal
interpretation trumps the
states’ interpretation
 Rejected concerns
regarding state judicial
sovereignty Supreme
Court could already
review state executive
and legislative
decisions and this case
was no different
 There is a need for
uniformity in federal
law
“United States ordained by
the people” McCulloch

Presidential Power
 Article II
 ; 217-18 (item 3 relating to signing statements)
Walter Dellinger, Assistant Attorney General, United States Department of Justice, Memorandum for Bernard Nussbaum, Counsel to the
President, The Legal Significance of Presidential Signing Statements (Nov. 13, 1993)
3 functions of Presidential signing statements:
 1. Explaining to public, and to constituencies interested in bill, what the President believes to be the likely effects of its adoption.
2. Directing subordinate officers within executive branch how to interpret or administer the act
3. Informing Congress and public that the Executive believes that a particular provision would be unconstitutional in certain of its applications,
and that executive branch will not enforce to create unconstitutional condition
 So, does president have the DUTY? In light of our constitutional history, we do NOT believe President is under any duty to veto
legislation containing a constitutionally infirm provision, although he can do so.
Argument that signing statements CAN be used to create legislative history:
 President plays role in legislative process.
Argument that signing statement CAN’T be used
 Congress is an independent constitutional actor and is vested with all legislative powrs. Nothing president says can reinterpret recprd.
A signing statement is entitled at most to limited consideration.

Hill: president vetoing legislation that he thinks is unconstitutional is a huge issue that goes to the oath of office
o Courts cannot give advisory opinion
o Duty to veto is bill is facial unconstitutional, even in part

CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT

FACTS PATTERNS
Clinton v. City of New York President used Line Item
524 U.S. 417 (1998) Veto to cancel provisions
in Balanced Budget Act &
JUSTICE STEVEN 2 from Taxpayer Relief
Act
Line Item is
Unconstitutional
TOPICS/ ISSUES
ADDRESSED
 Line Item Veto
 Presentment Clause
Art. I, §7, cl. 2
 President Power
Art. I §7
ARGUMENT
By canceling only selected
portions of the bills at issue,
under authority granted him
by the Act, the President in
effect "amended" the laws
before him.
 Such discretion, the
Court concluded,
violated the "finely
wrought" legislative
procedures of Article I
as envisioned by the
Framers
 By exercising veto the
president was changing
a law adopted by
Congress and
constitution does not
allow such presidential
ARGUMENT
3 views of what case about:
o Authority of
president
o Authority of
courts
o Authority of
Congress
Dissent: emphasize practical
need for line-item veto;
alternative is to make
millions of bill, so president
can veto entire bill.
 Presidents cancelling of
measures did not repeal
or amend a law…he
simply followed the
law, leaving the
statutes, as they were
literally written, intact.
 authority. NO provision
authorizes president to Majority/minority is
enact, amend or repeal difference between
statutes. formalist and functional
approach to separation of
Justice Kennedy, powers. Majority was
concurring: each branch formalistic, minority was
should be vigorous about its functionalist.
own authority
 Congress cannot
legislate away Possible Exam Q
something it had no Determine how Stevens
authority to and Kennedy would have
 Abdication of approached this issue
responsibility is not based on their reasoning
part of the in this case? (Narrow like
constitutional design Stevens, or broad like
Kennedy?)
Justice Scalia, O’Connor,
Breyer, concurring in part
and dissenting in part: does
not violate any specific
textual constitutional
command, nor does it
violate any implicit
Separation of Powers
principle
 Had line item veto act
authorized the President
to "decline to spend"
any item of spending
contained in the
Balanced Budget Act of
1997
 Not the slightest
doubt that
authorization would
have been
 constitutional
 Doctrine of
unconstitutional
delegation of legislative
authority: when
authorized Executive
reduction or
augmentation is allowed
to go too far, it usurps
the nondelegable
function of Congress
and violates the
separation of powers

Dames & Moore v. Regan 

453 U.S. 654 (1981)

JUSTICE REHNQUIST
EXECUTIVE BRANCH: PRIVILEGES AND IMMUNITIES

CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT

FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
US V. Nixon 
418 U.S. 683 (1974)

CJ BURGER
Clinton v. Jones 
520 U.S. 681 (1997)

JUSTICE STEVENS
EXECUTIVE AND LEGISLATIVE BRACHES: DELEGATION
CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT
FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
INS v. Chadha 
462 U.S. 919 (1983)

CJ BURGER
Bowsher v. Synar 
478 U.S. 714 (1986)

CJ BURGER
Morrison v. Olson 
487 U.S. 654 (1988)

CJ REHNQUIST
YOUNGSTOWN
CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT
FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Youngstown Sheet & Tube 
Co. v. Sawyer
343 U.S. 579 (1952)

JUSTICE BLACK

WAR POWERS

MILITARY TRIBUNALS
CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT
FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Ex Parte Quirin 
317 U.S. 1 (1942)

CJ STONE

HABEAS CORPUS
CASE NAME/ CITIATION FACTS/ LISTS: MAJORITY DISSENT
FACTS PATTERNS TOPICS/ ISSUES ARGUMENT ARGUMENT
ADDRESSED
Ex Parte McCardle 
74 U.S. (7 Wall.) 506
(1869)

CJ
Boumediene v. Bush 
123 S. Ct. 2229 (2008)

JUSTICE KENNEDY
 Munaf v. Green 
128 S. Ct. 2207 (2008)

CJ ROBERTS

Bush v. Gore
531 U.S. 98 (2000)
Majority: O'Connor & Kennedy
Concurrence: Rehnquist ,Scalia and Thomas
Dissent: Souter, Breyer, Stevens, Ginsburg
Elections are complex some controlled by states; other controlled by federal government Article II Federalism!
ISSUE What is the jurisdictional basis for the court hearing this at all?
 
Issue 1: Whether the FL supreme Court established new standards for resolving Presidential elections,
therefore violating Article 2.
 
Issue 2: Whether Florida Supreme Ct. violated Federal Constitution by ordering standardless manual
recount, violating equal protection clause
HOLDING Supreme Court decided that the manual recount order by Florida Supreme court violated Equal
Protection Clause of the Federal Constitution.
In finding this, The Majority was the Rehnquist majority that believed in New Federalism (the
authority of the states should be preserved).
 
Problems:
1. How is this going ot be preserved while attacking the state of Florida? They solved this
by attacking the Supreme Court of Florida, claiming to be protecting the legislature, never
mentioning the Secretary of State.
2. Problem for majority: how do they preserve Marbury and idea that branch is equal
branch of government this they solve by claiming that FL supreme court was not acting like a
court at all, but by acting like a legislature and that it (The USC) is the true court and its US duty
of Supreme Court to not only decided who President, but also what is the role of the Florida Court
in determining who are the electors of Florida (matter of state law).
KENNEDY  Kennedy worried that equal protection basis would support broader legislation by redistricting
(this happens when we take census).
 
Given structure of Bush v Gore involving balance of power at the federal and state level, the important
thing in this case, then, is the reasoning:
 Under Florida Law what is the standard by which we look at votes? How do we figure out what
is a properly cast ballot?

Then it was the ballot has to be counted if we can determine the intent of the voter (that year we had
punch cards, which were affixed to an old-style machine).

They didn't recount the whole state's votes, only the states where there were a lot of democrats (Gore).

Case revolves around ordering manual recount for the WHOLE state very late in the game.
 
Idea in this case was whether or not the recount that the FL supreme Court ordered was in fact without
 manageable standards so it would be conducted on an even way in the state of FL. (Scalia described
this as "crap")

WHO FORCED SC TO TAKE THIS CASE? NO ONE! HILL: Finds this repulsive

But “None are more conscious of the vital limits on judicial authority than are the Members of this
Court, and none stand more in admiration of the Constitutional’s design to leave the selection of the
President to the people, through their legislatures, and to the political sphere. When Contending parties
invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal
and constitutional issues the judicial system has been forced to confront.” (seems like “we don’t want to
do this but we kinda have to…”)
 

O’CONNOR
REHNQUIST (Joined by Scalia and
Thomas)
SOUTER
BREYER
STEVENS
GINSBURG

CONSTITUTIONAL PROVISION CHART

CONSTITUTIONAL CITATION LANGUAGE CITES
PROVISION
Preamble We the People of the United States,  New York v. US
in Order to form a more perfect  Printz v.US
Union, establish Justice, insure  Clinton v. NY
domestic Tranquility, provide for the  McCulloch
common defence, promote the  Gibbons v. Ogden
 general Welfare, and secure the  Hunters v.Martin’s Lessee
Blessings of Liberty to ourselves and  US Term Limits v. Thornton
our Posterity, do ordain and establish  Bush v. Gore
this Constitution for the United States
of America.
Executive Vesting Clause Art. II, §1, cl. 1 The executive Power shall be vested  Youngstown Sheet & Tube Co. v.
in a President of the United States of Sawyer
America. He shall hold his Office  Clinton v. NY
during the Term of four Years, and,  Clinton v. Jones
together with the Vice President,
chosen for the same Term, be elected,
as follows
Executive Oath of Office Art. II, §1, cl. 8 Before he enter on the Execution of  Youngstown Sheet & Tube Co. v.
his Office, he shall take the following Sawyer
Oath or Affirmation:--"I do solemnly
swear (or affirm) that I will faithfully
execute the Office of President of the
United States, and will to the best of
my Ability, preserve, protect and
defend the Constitution of the United
States."
Executive Commander-In- Art. II, §2, cl. 1 The President shall be Commander in  Youngstown Sheet & Tube Co. v.
Chief Chief of the Army and Navy of the Sawyer
United States, and of the Militia of  Boumediene v. Bush
the several States, when called into
the actual Service of the United
States; he may require the Opinion, in
writing, of the principal Officer in
each of the executive Departments,
upon any Subject relating to the
Duties of their respective Offices, and
he shall have Power to grant
Reprieves and Pardons for Offences
against the United States, except in
Cases of Impeachment.
Executive Treaty Power Art. II, §2, cl. 2 He shall have Power, by and with the  Youngstown Sheet & Tube Co. v.
Advice and Consent of the Senate, to Sawyer
make Treaties, provided two thirds of
 the Senators present concur; and he
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 other
Officers of the United States, 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.
Executive Recommendation of Art. II, §3 He shall from time to time give to the  Youngstown Sheet & Tube Co. v.
Legislation Congress Information of the State of Sawyer
the Union, and recommend to their
Consideration such Measures as he
shall judge necessary and expedient;
he may, on extraordinary Occasions,
convene both Houses, or either of
them, and in Case of Disagreement
between them, with Respect to the
Time of Adjournment, he may
adjourn them to such Time as he shall
think proper; he shall receive
Ambassadors and other public
Ministers; he shall take Care that the
Laws be faithfully executed, and shall
Commission all the Officers of the
United States.
Impeachment Clause Art. II, §4 The President, Vice President and all  Clinton
civil Officers of the United States,
shall be removed from Office on
Impeachment for, and Conviction of,
Treason, Bribery, or other high
Crimes and Misdemeanors.
Leg. Oath of Office
Legislative Vesting Clause Art. I §1
Enumerated Legislative Art. I §8, cl. 1-8
Powers
Art. VI, §3 The Senators and Representatives  McCulloch v. Maryland
before mentioned, and the Members
of the several State Legislatures, and
all executive and judicial Officers,
both of the United States and of the
several States, shall be bound by
Oath or Affirmation, to support this
Constitution; but no religious Test
shall ever be required as a
Qualification to any Office or public
Trust under the United States.
All legislative Powers herein granted  McCulloch v. Maryland
shall be vested in a Congress of the  Youngstown Sheet & Tube Co. v.
United States, which shall consist of Sawyer
a Senate and House of
Representatives.
Clause 1: The Congress shall have  McCulloch v. Maryland
Power To lay and collect Taxes,  Gibbons v. Ogden
Duties, Imposts and Excises, to pay  US v. Lopez
the Debts and provide for the  Garcia v. SAMTA
common Defence and general  US Term Limits v. Thornton
Welfare of the United States; but all
Duties, Imposts and Excises shall be
uniform throughout the United States;
Clause 2: To borrow Money on the
credit of the United States;
Clause 3: To regulate Commerce
with foreign Nations, and among the
several States, and with the Indian
Tribes;
Clause 4: To establish an uniform
Rule of Naturalization, and uniform
Laws on the subject of Bankruptcies
throughout the United States;
Clause 5: To coin Money, regulate
the Value thereof, and of foreign
Coin, and fix the Standard of Weights
and Measures;

Commerce Clause
Necessary and Proper Clause
Supremacy Clause
Clause 6: To provide for the
Punishment of counterfeiting the
Securities and current Coin of the
United States;
Clause 7: To establish Post Offices
and post Roads;
Clause 8: To promote the Progress of
Science and useful Arts, by securing
for limited Times to Authors and
Inventors the exclusive Right to their
respective Writings and Discoveries
Art. 1, §8, cl. 3 To regulate Commerce with foreign
Nations, and among the several
States, and with the Indian Tribes
Art. I, §8, cl. 18 To make all Laws which shall be
necessary and proper for carrying
into Execution the foregoing Powers,
and all other Powers vested by this
Constitution in the Government of
the United States, or in any
Department or Officer thereof.
Art. VI, §2 This Constitution, and the Laws of
the United States which shall 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; and the Judges in
every State shall be bound thereby,
 McCulloch v. Maryland
 Gibbons v. Ogden
 Wickard v. Filburn
 Gonzalez v. Raich
 Heart of Atlanta Motel v. US
 US v. Morrison
 US v. Lopez
 Wilson v. Black Bid Creek Co.
 United Haulers v. Oneida-
Herkimer Solid Waste Mang.
 McCulloch v. Maryland
 Gonzalez v. Raich
 Gibbons v. Odgen
 Wickard v. Filburn
 Heart of Atlanta Hotel v. US
 US v. Morrison
 Printz v. US
 McCulloch v. Maryland
 Marbury v. Madison
 Hunters v. Martin Lessee
 NY v. US
 Printz v. US
 Aldean v. Maine
 any Thing in the Constitution or
Laws of any State to the Contrary
notwithstanding.
10th Amendment 

AMAR
PREAMBLE: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain
and establish this Constitution for the United States of America.

What is the subject of this sentence?

 “We the People”
What is the predicate of this sentence?
 “Do ordain and establish this Constitution”
o Constitution based on consent from the people
o Government is based on the consent of the people
 1st government to take this idea of consent so seriously
 Ratification process
 Did our ancestors decision bind us of all
o Voting ongoing consent
o Amendments
o Another constitutional convention
o Concept of consent was revolutionary (Amar)

What is the point of the enumeration of purposes? What does each of the purposes mean? How do we know? What methods might we use
to find out?
In order to form a more perfect union “more perfect”
 Difficulty of running a economy under a new country under the Articles of the Confederations
o Debt from the Revolutionary war, paralyzing investment opportunity
o Make a stronger central government while still giving authority to the states

Establish justice reaction against English, being colonized by England

 ie: doing away with debtors prisonbankruptcy laws, cruel and unusual punishment, in religion, expression

Ensure domestic tranquility one cannot be disrupted in one’s home, be forced to quarter soliders

Provide for the common defense loyalist in Canada trying invade, British burning the white house
 we had enemies
o Spanish (in the south and west)
  We were not a country at peace and we were weak

Promote the general welfare what exactly does this entail?

Secure the blessings of liberty to ourselves and our posterity how do we have liberty? What infringes on liberty?
 What is “liberty”?

How did the Constitution differ from the Articles of Confederation?

 Citizens vote vs. legislature
o Maintained each state as sovereign, free and independent alliance of multilateral treat of sovereign nation-states
 The meanings of certain words (ie Congress, United States)
 Where certain powers rest (ie power over foreign affairs)
o Confederacy ongoing voluntary participation of its sovereign member states
 Ultimately free to leave or join as they pleased
 Power of Congress is different (ie the ability to tax)
 Could alter state constitutions that repudiated the federal constitution in part or whole
 Authority in the states central government

What economic circumstances shaped the Constitution?

 Larger landmass would generate a lower overall perimeter-to-area ration
 Strong union would reduce the need to spend money to guard intracontinental borders between states
 Strength would eliminate the need for a large standing army in peacetime= peace dividend in both dollars and democracy

What theories of government and public policy shaped the founders’ approaches?
 Christianity, God’s design
 Agreed on theory of consent
o But not what consent meant

In Amar’s view, what kind of a country did the founders aspire to build?
 Indissolubly strong union where states didn’t have individual powers to counteract another
 Big, continental, powerful, prosperous
o Awesome but bloody goal
Who was left out of public life under the Constitution?
 Women
 Slaves
 Native Americans
What role did slavery play in drafting the Constitution?
 Salves were widely viewed as not part of “the People” but rather as aliens who in war might be more likely to aid the enemy than defend his
master
o “couldn’t abolish slavery”
 What kind of representation would each state have?
o How many senators, house reps. Etc.
o Problem south economy is based on slave system and realized they would dominate us house of representative if the slaves got
counted (3/5th compromise)

CONGRESS: Article I vested Congress with only ‘legislative powers’ as opposed to ‘executive powers’ vested in Article II in an independent
president and ‘judicial power’ vested by Article II in independent federal courts
 Old congress had acted less as legislature than as an executive council, conducting foreign affairs and wielding many powers that the Crown
had exercised in the old empire.
o Possessed only powers expressly conferred by the Articles
o Creature of state legislature
o Paid by state
o One year term
 New congress would be shorn of classic executive functions, though its senate would continue to play a role alongside the new president in
making treaties and appointments
o Would enjoy powers herein granted both explicit terms and by fair implication
o Could point to specific words in its authorizing doc empowering it to do certain things
 Tax individuals, regulate interstate and international commerce, etc.
o Bicameral house of rep.(represent people from state gov.) and Senate
o Paid by central gov
o House of rep 2 years; senate6 years

Various provisions of Article I made clear that public liberty would sometimes require the affirmative adoption of a federal law
CONGRESSIONAL POWERS:
“Among the several States”
The longest section of the Constitution’s longest Article aimed to enumerate the main powers of Congress and thereby resolve hard questions of
federalism, separation of powers, and rights
 Some powers not given to Congress would reside with the states
o Other would go to the president and federal courts
o Others simply lay beyond the proper scope of all gov. and were reserved to the ppl.

What is the function of each of the three “branches” of the federal (national) government? Summarize the function of each branch in one
word or very short phrase.
Legislative: Congress legislation, making laws, legislative activity
Executive: implement the law
Judiciary: interpret the law
 “case”  in British tradition ∏ and Δ in front of a jury

Does any branch perform more than one function? What language in the text of the Constitution addresses this question?
Yes
Executive:
 presidents can veto legislation, if so it goes back to Congress and can override by 2/3rd vote
 Presidents can pardon
 Nominate Article III judges Senate has to advise and consent
o Congress defined jurisdiction of federal courts
 May address Congress
 Can send legislative proposals to congress (Article II Section 3) and reconvene Congress
o Authority over the schedule of Congress
 “war power”
Judicial:

Functions are distributed thru the branches

What issues or types of activities does each branch address? Does the Constitution allocate a primary role to any branch with respect to any
particular substantive area of activity? Commerce? War? What language, if any, in the text of the Constitution addresses this question?
Commerce Article I Section 8 Clause 3 Legislation
  Power to tax
o Does this extent to health insurance regulation?
 Eliminate trade post between states
 President treatises, executing the laws
War Congress
 Last time congress declared war was WWII
 Control expenditure of money for wars (federal reserve)

What kind of authority does each branch exercise?

((Some commentators distinguish among enumerated, inherent, implied authority. Does the text of the Constitution support the use of such
descriptions? Note, for example, that Article I defines Congressional powers with greater specificity than is used in either Article II or
Article III.))
Based on the reading of the ratification the power in Article I is not an accident.
Amar: at the time of the drafting people feared Congress
 The idea of saying Congress has the power granted in the document and no more was meant to reassure people ratifying this constitution that
Congress was not going to run “amuck”
 People did not fear the president because their sole idea was George Washington
o They trusted him

Where do federal government departments like the State Department or the Treasury Department fit in this structure? Where do agencies
like the Federal Trade Commission(“FTC”) or the Environmental Protection Agency (“EPA”) fit?
Necessary and proper clause Article I Section 8 Clause 18
All officers of the United States Article II Section 3 Clause 1
Article II Section 2 Clause 1

Congress delegates authority to this agency to write regulations

 Regulations interpret statute Congress has enacted
 Notice and Comment Rule Make (USC 5) Agencies
 Propose regulations
 Goes into Federal Reporter
 Citizens get to comment on them
 Agency consider comments
  Regulations go into final form
 Then final reg. goes into Federal Register

Agencies have quasi legislative duties (write and comment) and judicial function (interpret) but fit into the executive branch
Using the concepts developed in describing the functions of each branch of government, how would you describe the function(s) of
these various departments to agencies?

FEDERALISM:
Relationship between national government and state government.

No but ultimately sometimes it is and sometimes it is not 10th Amendment

9th Amendment: gov. is limited but in specific instances is it limited??

Are there instances where a state can limit the authority of the federal government?
Yes: Article 5

Can a state conduct its own foreign policy?

No

Can a state regulate the commercial dealings of its citizens with citizens of other states?
Yes states tax commerce, regulating at state borders

Are there any activities with respect to which the state governments and the federal government share authority?
Yes

Is it constitutionally meaningful to say that states are sovereign?

10th amendment basis for concept of sovereignty but maybe not fully even for those rights reserved to the states

AMAR- CHAPTER 6
 Amar tells us that the court is supreme over the other inferior courts- but NOT supreme over the other branches.
 The court was not regarded with great deference at founding. Colonial judges appointed by England were not in favor of independence.
Art. III, Section 2, Clause 1 The framers intended the court to be distinctive here, to play distinctive roles, that we would not have specialized
courts as in English history. How do we knit the judicial branch together given this larger vision of the unified country. The framers intended this
branch to be big and powerful…and prior to this the judicial branch was weak. It gained strength when Marshall came into the court.