Notes:

Need to cite article on exam

Exam notes:
Does Congress have the authority

Where does the power come from, the source/power

Commerce clause, tax/spend (the broadest source of power Congress has)

If you see a federal law based on the commerce clause, determine WHO is regulated. If
both private and governmental actors are subject to the law, Garcia applies and the only
protection a state receives is from its participation in the national legislative process.
If only a state is regulated, and Congress is effectively commandeering a state
legislature or a state executive officer, the federal law will be invalid because Congress
can’t force state officials to perform federal functions. This kind of law violates the
principle of “dual sovereignty” under which states must be free to structure themselves
and their essential activities in accordance with the wishes of the state electorate

Question to ask
1st: who is acting: fed/state/both
2nd: power source
Federalist Papers

Basic outline of the Constitution

I. Article 1 – sets up the power of the legislative branch
a. To pass a bill requires a majority not 2/3 (2/3 for veto override)
b. Section 8 – powers of Congress
i. [3] sets up the most regulatory power that Congress has (regulate commerce)
ii. [18] necessary and proper clause
1. not independent, must be used with another enumerated power (power
delegated to branch by the Constitution)
iii. Section 9 [1] – slave clause; northern states felt that it was unfair due to the free
labor that the southern states received
II. Article 2 – creates the executive branch of government (president)
a. The 3 main powers are: 1. commander-in-chief (civilian in control), 2. power of
appointment (Cabinet members, head of departments, ambassadors, judiciary, etc),
3. chief executive (faithfully execute laws of Congress)
III. Article 3 – creates the federal judiciary branch
a. One supreme court
b. Congress may, but is not required to, create lower federal courts; lower courts
established in Judiciary Act of 1789
IV. Article 4 – “miscellaneous clause” unrelated topics, main clause deals with the
admission of new states
a. Section 2 [2] – property clause (2nd biggest source of regulatory power by Congress
(behind Article 1, section 8 [3])
V. Article 5 – process for amending Constitution
a. The framers designed it to be a hard and difficult process so that it wouldn’t be
changed easily
VI. Article 6 – section 2: supremacy clause ( the supreme court is the supreme law of the
land
VII. Article 7 – Ratification of the Constitution
VIII. Bill of Rights (1st 10 Amendments), wrote by John Madison, 1791
a. 5th – due process
b. 9th and 10th – powers are not vested with federal government but remain with the
states
i. 9th – the fundamental rights protected even though not in bill of rights (ie. The
right to marriage)
IX. 14th Amendment- After the Civil War slaves have citizenship and due process

Judicial Review
I. Background information
a. Remember to think that this course is about government power – who has it and
how can it be used; also think about the structure of our form of government
b. Themes to remember
 i. Separation of powers – the horizontal relationship between the 3 branches of
federal government (checks and balances); and
1. horizontal analysis arises when one branch of the federal government
takes some action which interferes with an attribute or power of another
branch
ii. Federalism – the vertical relationship between federal government and States
1. Analysis: Congress passes a law which interferes with a State’s ability
to function as an independent sovereign
II. Article 3 of the Constitution establishes federal courts Section 1 vests judicial
power (vested in one supreme court, such inferior courts as Congress may from
time-to-time establish)
a. Federal judiciary has the power, under article 3, to decide enumerated case and
controversies (enumerated: specifically delegated to government branch by the
Constitution Section 2 clause 1). Scope of this power includes the power to:
i. Declare the meaning of federal law;
ii. Declare the constitutionality of federal and state laws and the acts of federal
and state officials
iii. Section 2 clause 1: judicial power extends to all cases in law and equity;
arising under Constitution, US laws and treaties
1. Judicial power extends to:
a. Where US is a party; between 2 or more states; between citizens
of different states
III. Jurisdiction (2 types: original or appellate) Section 2, clause 2 outlines jurisdiction
a. Original (maybe 1 or 2 a year)
i. SC has original jurisdiction in all cases “…affecting ambassadors, other
public ministers, and consuls, and those in which a state shall be a party…”
1. “State” means when one state is suing another
b. Appellate (99.9% of the cases)
i. In all cases other than those for original jurisdiction, the SC has appellate
jurisdiction, with such exceptions and regulations as Congress should make
c. Restriction of appellate jurisdiction: Congress has the power to limit SC appellate
jurisdiction (upheld in Ex Parte McCardle (1869)
i. Ex Parte McCardle (1869)
IV. Scope derived from a series of decisions
a. Marbury v Madison (1803): power to review federal laws and the acts of federal
officers, and to declare the meaning of the Constitution
i. Facts: Marbury sued to compel delivery of his commission as a Justice of the
Peace after President Jefferson and Secretary of State Madison failed to
deliver it to him after President Adams had appointed him. Marbury sued
seeking writ of mandamus (legal duty to perform act)
1. Marbury had legal right to commission, remedy was the writ of
mandamus
a. Issue was the writ was filed in the SC; if they can resolve it they
have to have original jurisdiction; thus the conflict btw the
Judiciary Act and the Constitution
 ii. Chief Justice Marshall held that Section 13 of the Judiciary Act of 1789 was
unconstitutional because it sought to confer on the SC original jurisdiction
over a type of dispute over which the Constitution gave it only appellate
jurisdiction. Where a statute violated the Constitution it was the duty of the
courts to apply the Constitution as paramount law which superseded
inconsistent statutes.
1. Congress may not expand the SC’s original jurisdiction
2. In the event of a conflict, the Constitution prevails
iii. These two principles–the preeminence of the Constitution and judicial
review–were not explicitly provided for in the Constitution but are supported
by various types of constitutional argument.
iv. Result: federal judiciary has review power over the other branches of federal
government; this greatly enhances power of the SC
1. Marbury went to the wrong court to file his writ
2. Jefferson as a Republican/anti-federalist had the real interest in the case
3. Chief Justice Marshall was concerned about impeachment which is
why he sided with Jefferson and confirmed a huge amount of power to
the federal court
b. Martin v Hunter’s Lessee (1816): power to review state court decisions (civil
matters); Cohens v Virginia (1821) reaffirmed for criminal matters; power to
review action of state officials upheld in Cooper v Aaron (1958) where the issue
was can a governor (non-federal official) refuse to abide by a federal order
i. Martin facts: VA to help fund the Revolutionary War debt seized the land of
loyalists, thus Martin’s land was seized and sold to Hunter. Martin sued
saying that it violated the anti-confiscation clause of 2 treaties. VA argued
that SC didn’t have jurisdiction over VA because they are co-sovereignties.
1. Issue: whether article 3 extends SC’s appellate jurisdiction to state court
decisions; the federal question was the treaties that have the anti-
confiscation clause
a. Congress has discretion to create lower federal courts
i. If SC lacked appellate jurisdiction, it would be powerless to
hear cases on appeal
b. SC appellate jurisdiction over state court decisions involving
questions of federal law is necessary to ensure national uniformity
i. Can’t have 50 different interpretations of the Constitution,
a federal statute or treaty
2. Court upheld the constitutionality of section 25 of the Judiciary Act of
1789 which empowered the SC to review certain decisions of the
highest state court which, generally speaking, ruled adversely to some
federal right or claim. The Court rejected Virginia’s position (co-
sovereignties) that its courts’ interpretations were not subject to federal
review regarding federal law
3. Result: Martin owns the land, SC sends the case back to VA DC as an
act of diplomacy so there won’t be butting heads between VA court of
appeals and the SC
c. Cohens v Virginia – reaffirms the Martin case
V. Limitations on Judicial Review (WEEK 10 material: mootness, standing, ripeness
goes here) page 14-15 in review book
a. There are both constitutional and prudential limitations on the exercise of judicial
power by a federal court
b. Federal courts will not issue advisory opinions: advisory opinions are not within
the article 3 definition of a “case or controversy”
i. State courts/state SC will as authorized by state law
c. Political Question: some disputes are not justiciable (they are not able to be
resolved in a court of law). Rather, they are to be decided by the political (elected)
branches of the federal government
i. Other wording: political questions, meaning those questions that are
committed to another branch or those which the judiciary cannot or should
not decide, are nonjusticiable
1. Judicial review is not unlimited- there are checks on the SC which is
based on separation of power concerns
a. Constitution places responsibility elsewhere;
b. Courts are not competent to decide
2. if there is a clear branch entrusted in control of an issue the court will
remove themselves and let the other branch handle it
ii. 2 categories of political questions (textual or prudential)
1. Textual (sometimes called constitutional): The text of the Constitution
suggests that another branch should decide
a. Nixon v United States: Nixon a federal judge was convicted of a
felony. The House of Reps voted 3 articles of impeachment;
impeachment then moved to the senate.
i. 2 key concepts: 1. overview of the political question doc, 2.
a look at impeachment as a check on the federal judiciary
ii. impeachment starts by House (takes majority to approve
articles of impeachment), then trial takes place in Senate (2/3
vote required, the supermajority); if it is impeachment of a
President the chief justice oversees
iii. Nixon challenged senate rule XI that all impeachments
should be tried by the senate not by the 10 member committee
who made the recommendation to the full senate
1. Senate trying to ensure he gets a fair trial, chief
justice agrees he did
iv. Chief Justice: it’s up to the senate to determine how the
trial will be run – it’s not the job of the SC- thus the SC bows
out an there is no issue for judicial review
1. only way that the SC would get involved would be
if there was another constitutional issue (ex. Due
process)
v. Result: Nixon is removed from office
vi. Impeachment review from Nixon
 1. Test: Court examined the words “try” and “sole”;
try not meant as a limitation on procedures, Senate
would not have “sole” authority to try impeachment
vii. History: no evidence that framers intended judicial review
of impeachment proceedings
1. rejected vesting impeachments in judiciary
2. wanted to keep impeachment and criminal
proceedings separate
3. judicial review inconsistent with separation of
powers, since “impeachment was designed to be the
only check on the judicial branch.
viii. Consequences: bad consequences would result from
judicial review of impeachment proceedings:
1. lack of finality
2. difficulty of fashioning appropriate relief
3. Precedent: court distinguished Powell v.
McCormack (1969)
b. Other textual commitment examples
i. Constitutional amendments: Coleman v Miller (1939)
1. whether a state can ratify an amendment once
rejected, and whether a proposed amendment lapses if
not ratified in a reasonable time, are political questions
ii. Guarantee clause: Pacific States T&T v. Oregon (1912)
1. Attack on nature of government, not tax; the SC
steps out of the proceeding because they don’t have the
authority
iii. Regulating the militia: Gilligan v. Morgan (1973)
1. textually committed to the political branches of
government (President is commander-in-chief); the
federal court doesn’t have the knowledge to regulate
2. difficult to conceive of a clearer example of the
kind of government action “that was intended by the
Constitution to be left to the political branches [or]…in
which the courts have less competence.”
3. Civilian control means political accountability
2. Prudential (judiciary self-imposed)
a. Lack of judicially discoverable or manageable standards – “too
hot to handle” category
i. Some disputes are deemed political questions even though
the Constitution does not specifically commit these issues to the
executive or legislative branch for decision.
ii. These “prudential” political questions reflect a judicial
deference to decisions made by other branches of the federal
government
b. Political gerrymanders (redrawing the political
boundaries/districts by those in power; goes back to the 1780s):
 courts have no manageable standards by which to judge the
constitutionality of political gerrymanders
i. Vieth v Jubelirer (2004): 4-justice plurality concluded
political gerrymanders nonjusticiable because there are no
judicially manageable standards to decide when Equal
Protection clause has been violated
1. the question is do federal courts have any authority
over this? Yes, limited to only when gerrymandering is
over the top
2. Justice Kennedy concurred in result because no
standards shown in this case – but doesn’t agree that
all gerrymandering cases are non-justicable
c. Courts cannot or should not try to resolve the issue “too hot”:
i. Baker v Carr (1962): court lists following factors as
guidelines for whether a dispute is “prudential” political
question which a court should avoid hearing:
1. lack of judicially discoverable/manageable
standards for resolving it;
2. the impossibility of a court deciding the case
without an initial policy decision by another branch;
3. need for a court to show proper respect for
decisions made by other branches
4. need to adhere to a political decision already made,
and;
5. potential embarrassment from multiple
pronouncements on the same issue
ii. issues to watch for in “too hot” include:
1. in general, the SC doesn’t like to deal with foreign
affairs
a. President is authorized to create treaties,
appoint ambassadors, etc; so they don’t get
involved
2. foreign affairs (hostilities): Baker (dictum)
a. As to the beginning or end of hostilities,
“dominant is the need for finality in the
political determination….”
3. foreign affairs – termination of treaties: Goldwater
v Carter (1979); Carter rescinds the treaty and senators
challenge because Congress can ratify treaties so court
said it was a political question
a. Constitution is silent as to termination
b. Dispute between coequal branches
3. Sometimes there can be both kinds of questions presented
a. Bush with desert storm (also Goldwater) federal judge said it was:
i. textual because the President can send troops and Congress
can declare war
 ii. prudential because not a declared war and the courts don’t
know what is considered a war
1. thus there were both types
VI. Regulation of Judicial Power
a. Congressional control: at least 2 ways
i. Congress needs not create lower federal courts
ii. Congress can make exceptions to, and can regulate, SC’s appellate
jurisdiction
1. Congress may exercise this power, Ex Parte McCardle, but questions
remain – how far can it go?
b. Two routes of appeals to the SC (appellate review)
i. Writ of certiorari to try and move from state to federal court
1. only 30% of cases that SC hears come from the state court
2. there must be a federal questions
ii. Majority begin on the federal court side because there is a conflict in rulings
between 2 or more circuits in the court of appeals
iii. Majority of cases to the SC are denied
1. can’t use it as precedent if it is denied
iv. rule of 4: takes 4 votes by justices to put case on SC docket
c. Ex Parte McCardle, (1868), held that Congress had power to remove the Court’s
appellate jurisdiction regarding habeas corpus (asking the branch that is holding the
person to show that it is authorized; produce the body) appeals conferred by an
1867 Act. Still, appellate jurisdiction remained as conferred by the Judiciary Act of
1789 so all routes to the Court were not eliminated
i. Issue: in light of repeals of jurisdiction, could SC hear McCardle’s appeal
1. SC appellate jurisdiction in article 3 section 2, clause 2 is subject to
such exceptions and regulations as Congress shall make – even up to
and after oral arguments in a specific case’ unusual; but it happens
a. This is an ultimate check on the executive body
ii. Congress is the only body that has the right to suspend the writ of habeas
corpus (suspension clause) in time of invasion, etc.
1. when the SC was ready to rule Congress repealed a piece of the statute
because they were worried that SC would rule all of the reconstruction
act unlawful
a. SC says that Congress has that right (textual analysis)
iii. McCardle would have had a better argument under ex post facto, that they
changed the law and made it retroactive after he filed his writ
d. Judicial stripping: question can Congress do this?
i. 2 major issues are school prayer and abortion (there are reoccurring bills to
take federal power of cases)
1. free exercise of religion is a textual right under the Constitution, thus
they can not repeal right over school prayer
2. abortion – guaranteed under the 5th amendment liberty clause but not as
clear
VII. Judicial Review Prerequisites (key is a federal question that was preserved
 a. Main concept: In addition to being justiciable, several prerequisites must be
satisfied before a federal court will review a state court decision
b. Intended to avoid premature or unnecessary federal review and advisory opinions
c. Prerequisites
i. Final decision;
ii. Issue of federal law (federal question);
iii. Federal issue must have been preserved
1. can’t rise for the 1st time in federal court
d. Federal court will not review a decision based upon adequate and independent
state grounds:
i. As general matter SC will not take a case which is based primary on state
law, but they do have the discretion to take them
ii. Can decision on federal issue change the outcome or is it purely a secondary
or ancillary issue?
e. Issue duly raised
i. To be reviewable, federal issue must have been raised and preserved in state
court
f. Adequate and independent state grounds (federal court will not take out of respect
for the state law)
i. adequate and independent state grounds analysis is a judicially imposed
limitation on the ability of the SC to review decisions by the highest appellate
state court
1. the adequate and independent state grounds doctrine arises when the
highest appellate court of a state decides a case involving both state and
federal issues
a. the SC will not review such a case if the state court based its
decision solely on state law, and the SC cannot change the result
of the case
ii. Adequacy: state law grounds are adequate if decision on issue of federal law
cannot change the outcome;
iii. Independent: state law ground is independent if it does not depend on
resolution of federal law- ie. decided on basis of state constitution or state
statute
iv. If state law tracks or is based on federal law, not likely to be adequate and
independent state grounds;
v. Absent clear statement, court presumes state law grounds not adequate and
independent: Michigan v Long (1983)
vi. Steps in “adequate and independent state grounds” analysis
1. has highest appellate court of state ruled on the case;
2. does the case involve questions of both federal and state law, and;
3. can the SC change the result of the case by ruling on the federal
question
a. if yes to all 3 questions there is no adequate and independent state
basis for decision and the SC may take the case
VIII. National Legislative Power – Commerce Clause
a. Sources and Nature: (where does it come from in Constitution – article 1, section
8, clauses 1-18)
i. Main concept: Legislative power is vested in the Congress. Most legislative
power is enumerated in article 1, section 8
1. the scope is quite broad
2. Scope of legislative authority:
a. Congress must have discretion to choose means
b. Necessary and proper clause – major source of implied power or
elasticity for enumerated powers
3. framers felt legislative was the most important branch – why it is set up
first in the Constitution
4. Congress doesn’t have police powers to regulate the general welfare of
the country as a whole, it resides with the states
a. if Congress wants to regulate something they need to find
something in Constitution that allows them to – typically done
under the commerce power
ii. Commerce clause (Overview)
1. Gibbons v Ogden: set the tone for an expansive reading of federal
commerce power
a. Interstate commerce, and intrastate commerce with interstate
affects, are within the commerce power
2. later cases would continue to expand
a. Congress can regulate the channels of interstate commerce – the
lottery case
b. Congress can regulate the instrumentalities of interstate commerce
– Houston Railway v US; Daniel Ball
3. Three categories of commerce
a. Crossing state lines (things involving channels of interstate)
i. Rivers, lake, oceans, satellites, internet, etc
b. Channels and instrumentalities (Instruments)
i. The thing that is carrying the commerce – boat, train,
electronic instrument, etc
c. Local activities with substantial affects – (close substantial
relationship with interstate commerce)
d. Important that there is a GOOD and MOVEMENT
i. Economic activity of some kind
iii. Article 1
1. Structural overview of article 1
a. Section 1 – vesting of federal legislative powers
i. “All legislative powers herein granted…”
b. Section 8 – enumerated federal legislative powers, 18 clauses
enumerate most powers – examples:
i. [1]: tax and spend “for the common defense and general
welfare…”
1. this is the big source of power
 ii. [3]: “regulate Commerce with foreign nations, and among
the several states, and with the Indian tribes”
1. the commerce clause is often relied on as a source
of regulatory power, but the scope of this power has
changed over time
a. the commerce clause is the main source of
regulatory power
iii. [11]: declare war
iv. [12] & [13]: raise and support army and navy
v. [18]: “to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers [1-17], and all
other powers vested by this Constitution…”
1. Necessary and proper clause – Congress has the
power to pass laws to enable itself or any branch or
officer of the federal government to carry out any
constitutional power
a. must be used with another constitutional
provision
ii. flexibility for Congress to use with
enumerated to address other issues
iii. cannot be used by itself as a source of
power
vi. the 14th amendment section 5 is another source of
regulatory power, among others
2. Article 1, Section 9 – federal limitations (framers were worried after
British rule)
a. No suspending habeas corpus (writ to ensure imprisonment is
legal) except in cases of rebellion or invasion
i. Very important
b. No bills of attainder (person’s civil rights/penalty against a
particular person) or ex post facto laws (after the fact)
c. No tax on exports from any state
3. Article 1, Section 10 – state limitations
a. no laws impairing obligations of contracts
b. no duties on imports or exports without consent of Congress
c. no agreements or compacts with foreign powers
iv. McCulloch v Maryland: MD imposed a tax on banks operating in MD not
chartered by the state. National bank acted like today’s federal reserve. The
state argued that they are a sovereign and that Congress doesn’t have the
power to regulate. Issues: did Congress have the power to incorporate a
national bank and does the state have the power to tax
1. it wasn’t an enumerated power to create the bank, it needed something
else
a. the power comes from the necessary and proper clause
i. the ability to collect tax, regulate commerce, make war
 1. these are the reasons for needing the national bank,
thus it was necessary and proper
2. The SC has interpreted the necessary and proper clause to mean that
Congress may choose whatever means it deems convenient to carry out
some power of government
a. They defined necessary as: convenient, useful, or essential
i. Thus, the bank was necessary, and the necessary and proper
clause falls under the enumerated powers
b. Congress has a wide discretion on the meaning of “proper”
i. “let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are constitutional”
3. if there is a power to create the national bank can it be taxed? No, the
power to tax is the power to destroy
4. it is not an unlimited power and the court remains in the opinion that it
must remain within the enumerated power
v. Even today the conflict between states and federal power exists
1. example – immigration: states don’t have the power as AZ tried to do
2. states can’t impose additional requirements as seen in Johnson where
the state tried to impose term limits for federal elected officers
a. the SC said this wasn’t allowed, the only 3 requirements for
serving are age, citizenship, and residency, the states aren’t allow
to add more
b. case illustrates that the conflict still exists between state and
federal powers
vi. United States v Comstock: issue of detention of a mentally ill, sexually
dangerous prisoner. Issue was where does Congress get the authority to
change the detention: it comes from the necessary and proper clause
1. “determining whether the necessary and proper clause grants Congress
the legislative authority to enact a particular federal statute, we look
whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power”
a. ie – there has to be a “hook” (something federal) here there was a
connection between a federal crime and commerce
i. thus Congress is within their power to use the
necessary/proper clause
vii. Other examples of sources/methods of power
1. enumerated powers over
a. agriculture – improving science
b. property clause – because land around dam is owned by federal
government and leased out, thus an interest in it for flood control,
etc
c. tax/spend clause – Congress’ broadest power for general welfare
of nation
 2. federal courts have exclusive jurisdiction for admiralty/maritime law, in
order to create uniformity because it deals with navigation and interstate
and foreign commerce
3. treaties with other nations are a source of power
b. The National Commerce Power – under article 1, section 8, clause 3, Congress
has the power “to regulate commerce with foreign nations, and among the several
states, and with the Indian tribes
i. Gibbons v Ogden: conflict between NY statute for monopoly of navigation of
the Hudson river and federal statute authorizing use
1. Three Issues:
a. what is commerce
i. Ogden said it should be limited to trafficking, or
buying/selling or goods not navigation
1. NY argues for co-sovereign, no commerce, and
navigation doesn’t count – all arguments fail
ii. Here the commerce was the transportation between NJ and
NY (interstate transportation)
iii. Analysis of what is commerce:
1. First: is there a channel of commerce
a. Yes, the Hudson river
2. 2nd: are there any instruments
a. Yes, the stream boat
3. 3rd: are there instrumentality (what’s being
moved/carried)
a. Yes, the people being moved
4. Because it’s a Yes to all, the federal government has
jurisdiction to regulate
a. Movement of goods/services between states
is subject to regulation by federal government
iv. The nature of the commerce clause is a broad power and
the only are when it is limited by the Constitution (ie- due
process, etc)
1. thus, NY doesn’t have the authority it sits with the
federal government, if there is a conflict between
federal and state law, federal always wins
b. what is “among” the several states
i. commerce that concerns more than one state
ii. includes the power to regulate interstate commerce within
the territorial jurisdiction of states
iii. commerce within a particular state may concern more then
one state
iv. commerce that is entirely intrastate (doesn’t cross state
line), and without interstate affects, is beyond the commerce
power
1. controlled by the state – an exception that held for
40-50 years
 2. Interstate Commerce Act – 1st amount by Congress
to break down monopolies
v. Daniel Ball: upheld regulation, under commerce power, of
a ship navigating entirely within MI waters shipping boiler
systems
1. ship was engaged in commerce among the state
because it
a. carried goods within MI that came from
outside of the state, and
b. carried goods within MI that were destined
for other states
2. the ship was the instrument of interstate commerce
3. Court held that it was within the power of the
federal government to regulate because the boilers
were part of the chain (ie the stream of commerce
theory)
c. does the Constitution limit Congress’ authority to regulate under
the commerce clause
i. Business purpose – as long as there is multiple states
involved
1. examples – transporting mistress for prostitution or
kidnapping (economic issue is vague, but probably for
ransom), etc: the power lies with the federal
government to regulate
ii. Expanding/extending the reach of the commerce power
1. Champion v Ames (the lottery case): statute prohibiting movement of
lottery tickets across state lines. Tickets are the instrumentalities and
things moving in interstate commerce
a. Court say the federal government can regulate; there is a concern
that there is an “evil in gambling”
b. The “hook” with the commerce clause is
i. The tickets are being shipped state to state
1. channel would be the roads/rails
2. instruments – car/train
3. instrumentality – the tickets
c. Court said that the commerce power is broad and the power to
regulate includes the power to prohibit
i. Dissent is concerned that the regulation of tickets is a 10th
amendment issue that the states should deal with
1. Congress is not interfering with intrastate
commerce, simply furthering policies of states that
prohibit lotteries
2. Majority said that the tickets can still be sold within
the state, and the regulations just occur on selling
tickets outside of the state; thus holding Congress
wins
 2. Hoke v United States: involves violation of the Mann Act, which
prohibits transporting of women across state lines for prostitution. Issue
can Congress regulate prostitution
a. Yes, because the women are moving across state line, it resembles
a police power but it is for regulation of interstate commerce
i. Court stated the rule bluntly, “Congress has power over
transportation among the several states…and the means may
have the quality of police regulations”
3. Houston EW TX Railway v United States: beginning of the 3rd category
of interstate commerce (close/substantial relationship) TX is charging a
higher rate for out of state versus in state rates to give a competitive
advantage for their producers/shippers
a. This is not allowed because one purpose of the commerce power
was to prohibit state discrimination against interstate trade – ie to
promote a national economy and trade
b. Congress’ authority over interstate instrumentalities of
commerce includes the right to regulate matters having a “close
and substantial relation to interstate traffic” (this survives even
today)
i. To protect interstate commerce, Congress may use all
measures “necessary or appropriate to that end” even though
intrastate activities are regulated
ii. This would also apply if it was a passenger train
c. Regulation of national economic problems: limitations on commerce power
through 1936 (shrinking commerce power “Lochner” era)
i. Hammer v Dagenhart: held that Congress could not impose standards for
employment of children within the various states. The idea was that
production of goods, even by children, is purely a local matter, which is a
regulation reserved for states under the 10th amendment
1. aim of the law was not to regulate the channels of interstate commerce
or transportation among the states
a. the goal was indirectly to standardize the ages at which kids could
work
b. fact that goods were intended for interstate transport did not make
production subject to federal control
i. using the Lottery Case as a base this should be allowed, but
the court held no
ii. manufacturing at this point is not interstate commerce and
states have the power to regulate child labor laws
2. Holmes dissent becomes the majority in 1937 – that court shouldn’t be
deciding cases based on the era or current economic theory but on
precedent
a. Congress trying to regulate child labor products and of course the
Congress can regulate this
i. “…they seek to send their products across state line they
are no longer within their rights…”
 3. between the lottery case and here was only 6 years and the composition
of the justices changed
a. reflected the laissez faire era of hostility towards governmental
intervention
b. also reflected federalism concerns
i. dual sovereignty was the controlling doctrine
1. 10th amendment reserved to states a “zone of
activities” under the police power
2. included regulation of things like mining,
manufacture, agriculture, and production
d. Four eras
i. General concept: the scope of the commerce power waxes and wanes over
time with changing interpretations of the commerce clause. Today, the
commerce power allows Congress to regulate (these are the 3 categories of
interstate commerce)
1. the channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Economic activities that are intrastate, but that substantially affect
interstate commerce
a. Understanding channels, instrumentalities, and “close and
substantial” in relation to interstate commerce
ii. Era 1: Pre-1890s - Early Commerce Power (expanded reach)
1. Gibbons set the tone for a broad commerce power
a. A liberal reading of commerce power
i. Congress can regulate interstate commerce and intrastate
activities that affect interstate commerce (Gibbons and TX Rail)
ii. Congress can regulate channels and instrumentalities
(Hoke, Daniel Ball, and TX Rail)
iii. Regulation of interstate activities not limited to
“commercial” activities (Hoke, Lottery Case)
2. court began to impose limits in mid-19th century
iii. Era 2: 1980s to 1936 – Lochner Era (contraction of power)
1. Laissez-Faire economics controlled Court
2. Scope of commerce power severely curtailed
3. Court struck several New Deal laws intended to rehabilitate the
economy
4. Schechter Poultry v United States 1935: SC struck down code to
regulate trade practices, wages, hrs, and collective bargaining in NY
poultry slaughtering market where 96% of poultry came from out of
state
a. Issue the poultry was not in the stream of interstate commerce, but
had come to rest locally
b. Holding: the regulation fell outside the commerce power because
the regulated conduct had no “direct” effect upon interstate
commerce
i. Direct – indirect distinction
 ii. Regulations sought to control things like hrs and wages of
workers who were not in interstate commerce
5. Carter v United States 1936: SC holding: Congress couldn’t require
certain coal producers to comply with federal min-wage and max-hour
requirements. The mining of coal was purely local activity that fell
outside the reach of the commerce power
a. Distinguished commerce and other activities
i. “production is a purely local activity”
ii. “the local character of mining, of manufacturing, and of
crop growing is a fact…whatever may be done with the
products”
1. the three main industries at the time the government
had no power to regulate (mining, manu, agriculture)
b. Elaborated on the direct – indirect distinction
i. Distinction between a direct and an indirect effect turns
entirely upon the manner in which the effect has been brought
about
1. question is “what is the relation between the activity
or condition and the effect”
iv. Era 3: 1937 to 1995 – expansion (modern doctrine)
1. Commerce power expanded significantly – virtually no limits
2. Ushered in by 3 decisions which set the framework for commerce clause
doctrine of today:
a. NLRB v Jones & Laughlin Steel (1937) upheld National Labor
Relations act
b. United States v Darby (1941) approved Fair Labor Standards Act
c. Wickard v Filburn (1942) sustained the Agricultural Adjustment
Act
3. NLRB v Jones & Laughlin Steel: Rule: Congress can, under the
commerce power, reach intrastate activities if those activities have a
close and substantial effect on interstate commerce
a. Thus, Congress could restrict the ability of a steel company to
discharge employees because of union activity. The commerce
clause was held to be a sufficient basis for the national labor
relations act which Congress passed to deal with labor-
management issues
i. Court said stream, raw materials  steel mills  finished
products, gave right to regulate
b. This is the 1st of the judicial justifications for an expanded
commerce power
i. “close and substantial effect on commerce”
4. United States v Darby: a lumber company who the majority of lumber
produced moves out of state (interstate commerce). Issue: can Congress
prohibit shipment in interstate commerce of goods produced by workers
whose wages and hours violate FLSA (looking to use the stream of
commerce theory)?
 a. Manufacturing is not interstate commerce, but shipment of goods
interstate is subject to regulation under commerce clause
b. Prohibiting shipment in interstate commerce of goods produced
under substandard labor conditions is within commerce power –
prevents unfair competition by undercutting the competition with
wages
c. The Congress was trying to get the economy started
i. The SC overruled Dagenhart and Hammer (that it only
takes place locally) because the composition of the court
changed (death and retirements, FDR appointment 4 justices)
“the switch in time that saved the nine”
1. in addition, they cite the Lottery case – the other
evil (gambling from Lottery)
2. Congress uses its “police” power to regulate evils
(wage/hrs)
5. United States v Sullivan (1948): held that the constitutional power of
Congress under the commerce clause to regulate the branding of articles
(here prescription medicine labels on bottles) that have completed an
interstate shipment and are being held for future sales in purely local or
intrastate commerce
a. This is a departure from the 30s – concern is that the consumers
get the warning
6. Wickard v Filburn (1942): there was a wheat surplus so Congress was
trying to regulate the market by overpaying for their allotment. The
overproduction affects interstate commerce and competes with the open
market
a. Congress can, under the commerce power, reach an intrastate
activity which, by itself, has a minimal impact on interstate
commerce, if that activity, taken together with all other examples
of that activity, has a substantial impact on interstate commerce
b. The SC held: as applied to a small farmer, a federal law limiting
the amount of wheat that could be grown by one person. Even
though F’s activity, by itself, had a negligible impact on
commerce, Congress could regulate him b/c in the aggregate, F’s
activity together with that of other farmers across the country, had
a substantial impact on interstate commerce
i. Federal power not precluded because activity is agricultural
production at a local level
c. This is the 2nd of the judicial justifications for an expanded
commerce power
i. “aggregation theory”
1. Congress may regulate an individual instance of the
activity, though by itself trivial, when all of the
instances of that activity aggregated together are
substantial
 7. Perez v United States (1971): Perez argued that his loan sharking was a
local activity that wasn’t within interstate commerce. where a class of
activities is within the reach of the commerce power, Congress may
regulate any particular actor or activity within the class
a. The SC upheld Congress’ ban on purely intrastate extortionate
credit transactions because they may affect interstate commerce.
The federal consumers credit protection act legitimately was
applied to local loan sharks b/c Congress could reasonably
conclude that loan sharking is an integral part of organized crime
which, in the aggregate, affects interstate commerce
i. The court said that where a class of activities is within the
commerce power, courts have no power to excise, as trivial,
individual instances of the class
b. This is the 3rd of the judicial justifications for an expanded
commerce power
i. “regulation of class activities”
8. Woods v Cloyd Miller: Congress passed law that there would be a
national rent control because of a housing shortage after WWII using
the commerce/war power
a. Court said it was fine but the power can’t last forever
v. Protection of other interests (racial discrimination) through the commerce
clause (still era 3)
1. not limited by facts that the obstructions to commerce were also moral
and social wrongs
2. Heart of Atl Motel v United States (1964): title 2 of the Civil Rights Act
“any place of public accommodations” can’t discriminate
a. Congress thinks they can use the commerce clause and equal
protection as power sources
b. The connection to commerce
i. Substantial relationship test
1. people are the instruments are moving by trains,
cars on a rail/road system
a. good argument for instrument,
instrumentalities and channels
3. Katzenbach v McClung (1964) Ollie’s BBQ: they wouldn’t serve
blacks, reach of the federal gov’t was that 50% of the food sales came
from out of state (the interstate commerce)
a. Wickard case applies here – aggregation theory because if all
restaurants were doing the same it would affect interstate
commerce
i. Amounts to a huge burden for blacks traveling in the south
ii. It was constitutional under the commerce clause
vi. Era 4: 1995 to present – a little contraction but with an outer limit/boundary
1. In 2 cases, SC tried to restrain commerce power by placing outer limits
on this Congressional power of the commerce power:
 a. United States v Lopez (1995) ruled unconstitutional a portion of
the Gun-Free School Zones Act that outlawed possession of a gun
within 1000 ft of a school
b. United States v Morrison (2000) struck portion of a federal law
that gave civil remedy to victims of violence against women
c. These 2 cases clearly set the limit on what Congress can regulate
2. Federalism once again significant
3. United States v Lopez: Congress may not use the commerce clause as a
justification to criminalize local activity when that activity doesn’t,
when aggregated with similar activity across the country, have a
substantial effect on interstate commerce
a. The SC invalidated a federal law prohibiting possession of a gun
in a school zone. The SC 5-4 reasoned that gun possession is not
an economic activity that, considered along with other activities
nationwide has a substantial impact on interstate commerce
b. SC said the law is invalid because it doesn’t provide for an case-
by-case determination that a particular act of gun possession had a
direct relationship with interstate commerce
i. Congress exceeded its power in creating the gun free
school zone
c. SC said that there are 3 categories of activities Congress may
regulate under the commerce power
i. #1 – use of the channels of interstate commerce
ii. #2 – instrumentalities of interstate commerce, even if only
involved in intrastate activities
iii. #3 – activities that substantially affect interstate commerce
d. Threshold question comes out of case (“is there anything
economic going on”): 4 factors/considerations court uses
i. #1: law had nothing to do with commerce or any economic
enterprise
ii. #2: no jurisdictional element in statute to tie firearm
possession to interstate commerce
iii. #3: no congressional finding to substantiate effects upon
interstate commerce
iv. #4: link between gun possession and substantial effect on
interstate commerce is tenuous
4. United States v Morrison: SC 5-4 invalidated a provision of the
violence against women act that created a civil cause of action for
crimes motivated by gender bias. P alleged that she was raped by 3
students at V Tech. SC ruled that Congress exceeded the scope of its
commerce power by criminalizing what was a purely local, non-
economic activity
a. SC applying Lopez, refused to aggregate the effects of localized
criminal activity, reasoning that to do so would allow Congress to
regulate virtually any local activity whose combined impact
affected commerce, such as family law, marriage, divorce, etc
 b. Congress went through the same steps/analysis from Lopez
i. In contrast to Lopez, here Congress made extensive and
detailed findings of the impact of domestic violence upon
victims, including affects on commerce
1. court said that just because Congress finds
substantial affects does not make it so
2. Dissent argues that it had economic impact and
even the states were in favor
ii. No economic activity
iii. No jurisdictional limitation (neither party moved interstate)
c. Bottom line that the VAWA was not constitutional because statute
didn’t regulate an activity that substantially affected interstate
commerce
i. Take away: court signaled there was an outer limit to using
the commerce clause
5. Gonzales v Raich: SC upheld under commerce clause, Congress’ power
to proscribe the intrastate, noncommercial growing and use of weed,
even when done in compliance with state law. There was a conflict
between state/federal laws, issue was does federal gov’t have
jurisdiction over weed for possession and use
a. SC using Perez and Wickard ruled that Congress can regulate
intrastate activity that is not commercial if it concludes that failure
to regulate that class of activity would undercut the regulation of
the interstate market in that commodity
i. Court said that home-growing is competing with other
commercial grown
ii. There was commerce “class of activity” (Perez)
1. Controlled substance act (CSA) is comprehensive
regulatory scheme
2. Class of activities is w/i reach of commerce power
3. Court can’t exclude, as trivial, a particular instance
of the class (citing Perez)
iii. Aggregate theory (Wickard)
1. court need not independently determine whether the
activity has a substantial effect on interstate commerce,
but whether the activity has a substantial effect on
interstate commerce
a. but only whether Congress had a rational
basis for so concluding
ii. Congress did have a rational basis home-
grown weed was related to enforcement
problems with the CSA
2. the court compares Wickard wheat with home-
grown weed
6. Two bright line rules
 a. Clear if something crossing state line then it’s clear that Congress
can regulate it in some way
b. If we want to use aggregate theory in substantial related category
there a fundamental threshold question “is there anything
economic going on”
i. Can’t apply aggregate theory without economic activity
vii. Commerce Power Today
1. Under the commerce clause Congress can regulate:
i. Use of channels (how) of interstate commerce
ii. Instrumentalities (what is moving) of interstate commerce,
including persons and things in interstate commerce, even if
wholly intrastate
iii. Intrastate economic or commercial activities that
substantially affect interstate commerce – (aggregation or class
of activities theories)
IX. National Taxing and Spending Powers (general information)
a. Government has 4 primary powers (both at federal and state level)
i. Taxing: to raise money/generate revenue
1. or might have a regulatory purpose
ii. Spending: common tactic
iii. Regulatory (police power for states)
1. Congress needs a “hook”
2. State police power – they can regulate for broad range of topics
iv. Proprietary (ownership & sale)
1. buy/lease land, own wildlife land, post offices, etc
2. also can lease land for minerals – ie offshore drilling
b. it is legislative branch’s choice which power to use to address specific problem
i. take away – normally there are more then one approach the government can
use, which tool to use is the legislative decision
1. Courts don’t want to second guess the legislative branch
c. Main concept: in addition to the commerce power, Congress has others –
including powers to tax and spend – that provide broad regulatory potential:
i. Taxing power – Article 1, section 8
1. some Lochner-era cases attempted to limit taxing power by finding
invalid regulatory motive
2. today, taxation allowed even if it has both regulatory and revenue-
raising effects
3. main purpose is to raise funds
a. because of this almost always going to be found constitutional
b. problem arises when primary purpose is regulatory over revenue
i. if they are for regulatory purpose Congress must be already
have the ability to regulate it
d. Taxing and spending authority
i. Spending power – 2 sources of authority
1. necessary and proper incident of expressed powers
a. Congress can always spend for enumerated powers [1-18] or
 b. Broad for “general welfare” and common defense
2. article 1, section 8 spending for the general welfare: an independent
power, not simply adjunct to other enumerated powers
a. conditional spending allowed if conditions are explicit and
reasonably relate to legitimate federal policy
3. Congress can attach conditions to the spending
X. Taxing Power
a. Article 1, section 8 gives Congress the power to lay and collect taxes, imposts,
and excises, but requires that all duties, imposts (for foreign goods was the main
source of income for the country for the 1st 70 yrs of the country), and excises be
uniform throughout the United States
i. The uniformity limit pertains to geographical uniformity, requiring uniform
application (no discrimination) among the several states
ii. The uniformity requirement is not violated if a tax is not uniform in relation
to individual persons
iii. Sixteenth amendment: Congress has power to tax incomes without
apportionment
b. Two ways that a Tax can be valid
i. A taxing measure passed by Congress can be valid in one of two ways: as a
revenue-raising measure, or as a means to achieve a valid regulatory goal of
Congress
1. Tax as revenue-raiser
a. Bailey v Drexel Furniture: purpose of the excise tax was to
regulate child labor which Congress couldn’t get at from
Dagenhart, so they tried to tax it. The primary purpose was to
discourage the use of child labor
i. Congress couldn’t because manufacturing was off limits
from commerce clause so Congress isn’t allowed a back door
ii. As long as the purpose of a taxing measure is to raise
revenue, it will be upheld, even if the amount of the tax is
oppressive or even destructive
iii. Rule: can’t tax primarily for regulatory purpose unless they
had ability to regulate it previously
1. But at some point, regulatory motive causes tax to
act as a penalty
2. Tax as a means to achieve a valid regulatory goal of Congress
a. A taxing measure will also be valid if it is a means to achieve a
valid regulatory goal of Congress. If Congress can regulate
something under its commerce power, it may tax that activity as a
means to achieve its permissible regulatory purpose
i. Theory is that if Congress may regulate or even prohibit an
activity under its commerce power, it certainly may employ the
less intrusive means of taxing that activity
b. United States v Constantine: disproportionate tax on liquor dealers
was a penalty with a purpose to displace state police power
 i. Since Constantine, no federal tax has been invalidated due
to a regulatory motive
XI. Spending Power (Regulation through)
a. Section 8, clause 1: Congress can “pay the debts (both state/federal debts of
government) and provide for the common defense and general welfare of the
United States…”
i. Congress does not have any explicit constitutional power to regulate for the
general welfare (even though it may do so under the commerce power)
1. in other words, Congress has no general police power similar to that of
the states
2. the issue of what is “for the general welfare” belongs to Congress, and
the SC will uphold a spending measure if there is any rational basis to
support Congress’ conclusion that the law will advance the general
welfare
ii. Two competing views as to meaning:
1. Madisonian: limited to carrying out other powers enumerated in Article
1, not independent powers
2. Hamiltonian: independent of other enumerated powers, need only be for
the common defense or general welfare
a. This view prevailed
iii. What is general welfare?
1. very broad definition – never has been clearly defined
a. courts don’t want to get involved and take a deferential view
2. Helvering v Davis (1937): Social Security case where Congress was
trying to prevent people from migrating state to state for better benefits,
Congress used the tax/spend as a power source (it was controversial at
the time)
a. the discretion belongs to Congress, unless the choice is clearly
wrong, a display of arbitrary power, not an exercise of judgment
b. When Congress imposes conditions on the receipt of federal money, the SC will
uphold the spending measure so long as the recipient is free to reject the federal
money and exercise his rights (in case of individual) or powers (in case of state)
i. Is the law voluntary: if the law leaves the recipient with a theoretical choice
to accept or reject the “condition” with the money, the law will be upheld
1. United States v Butler (1936): Gov’t contracted with farmers to reduce
acreage of crop in exchange for a higher market price
a. The power source: commerce clause to promote agriculture and
tax/spend: taxing to raise revenue and subsidies going back to
farmers
b. SC struck down the regulation as being unconstitutional because
it was not voluntary, due to the Depression, the farmers had no
choice but to except the terms offered by the government
i. SC said that it invaded state’s rights and was too coercive
c. Takeaway: in area of conditional spending it can’t be to coercive
d. Dissent, today’s modern view: “spending power of Congress is in
addition to the legislative power and not subordinate to it”
 2. Steward Machin v Davis (1937 era changing): scheme where employers
get 90% credit if they pay into state unemployment fund instead of the
national fund. It gives the states incentive to run their own program.
Issue: did the law coerce the state governments to adopt unemployment
compensation laws in violation of the 10th amendment
a. SC said no, the purpose of the law was to protect the federal
treasury and the “condition” place upon the credit here – adoption
of a state unemployment compensation system – was legitimately
related to that purpose
i. Congress wanted states to do it to increase state
employment and keep federal administration costs of the
program down
ii. It is constitutional because it was optional to the states
1. no penalty to the state, penalty to
employers/industries if the state doesn’t opt in
iii. it was distinguished from Butler because none of the
similar facts apply here
b. Walk Through Analysis
i. Who is acting: Fed, but they are encouraging the state to act
ii. Power source: tax/spend: tax: national tax on employers,
spend: allow you to keep 90% if state has own system
ii. Is the condition on the receipt of money related to the general purpose of the
federal grant (conditional spending)
1. although the SC has never invalidated a law on the basis that a condition
on the receipt of federal funds was unrelated to the general purpose of
the federal expenditure, it has raised the possibility that conditions on
federal grants may be invalid if unrelated to the federal purpose in
passing the spending measure
2. SC says conditional spending in general is ok because it’s federal
money and the states don’t have a right to it
a. Example: federal gas tax, it is a federal tax and they can keep it
and are under no obligation to give any to the states
3. South Dakota v Dole (1987): a 5% penalty taken from federal highway
fund for states that have a lower drinking age. Congress had a concern
for highway safety – don’t want to encourage people driving over the
border to states with a lower age and driving back drunk
a. Precedent: 4 requirements if Congress wants to conditionally
spend federal funds:
i. #1: spending must be for the general welfare
1. yes, it here prevents drunk driving
ii. #2: condition must be unambiguous, so that if states choose
to participate, they do so knowingly and cognizant of the
consequences of their participation
iii. #3: conditions may be illegitimate if unrelated to the
federal interest in the particular project or program (must be
related, concern and condition)
 1. drunk driving and 5% penalty
iv. #4: other constitutional provisions may bar the conditional
spending
1. here the 21 amendment
b. holding: the conditional spending here was ok because the states
can opt out
c. Congress used this same scheme to reduce the blood/alcohol level
to .08
i. Inducement might become so coercive as to result in
compulsion – to be coercive it probably would have to approach
a 30-50% penalty
c. Summary of article 1, section 8 power
i. Independent of the other article 1 powers
ii. For general welfare – not clearly defined
1. courts should defer to legislative judgment
iii. Conditional spending allowed it:
1. for the general welfare
2. conditions are unambiguously stated
3. conditions are reasonably related to the federal interest in the policy or
program (most important there has to be so kind of relationship)
4. not barred by another constitutional provision
XII. Other Powers (foreign affairs and treaties)
a. Treaties: under article 2, section 2m clause 2: the president has the power to enter
into treaties with other countries. A treaty must be ratified by 2/3 of the senate
i. There are 2 kinds of treaties: self-executing, and non-self-executing
1. self-executing: do not need implementing legislation, they contain all of
the details of the agreement between the countries and have the force of
law as soon as they are ratified by the senate (ie. missle reduction)
2. non-self-executing: need to be implemented by legislation passed by
Congress. They don’t have the force of law until the implementing
legislation is passed
ii. Missouri v Holland: concern of the harvest of migratory birds. US and
Canada came up with an agreement over regulations, stamps, etc. Issue: can
there be a treaty that is entered into over state rights to regulate
1. SC upheld the federal Migratory Bird Treaty Act
2. The SC rules that a treaty may confer on Congress the power to legislate
in an area over which it otherwise has no power (ie the state right);
Congress may pass legislation necessary and proper for the
implementation of a treaty
3. The SC also ruled that the 10th amendment is not a limitation on the
treaty power of Congress
iii. Reid v Convert: SC reversed murder convictions of US military dependents
for denial of jury trials
1. Rule: a treat can’t violate the constitutional rights of individuals, or
override constitutional requirements (ie. the constitution is the supreme
law of the land, treaty can’t “trump” the constitution)
 a. This is an important check
XIII. Tenth Amendment – intergovernmental immunities (co-sovereignty)
a. “The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people”
i. the SC has interpreted the 10th amendment to mean that there are certain
aspects of sovereignty that a state must have to function as a state and to
occupy its proper place in a federal system
1. 10th amendment serves as a source of power for the states (state’s police
power) and as a defense against congressional action (a federal law
impairs the ability of a state to provide adequate police services)
ii. Terminology: 10th amendment and state sovereignty are strongly related –
don’t confuse with sovereign immunity (11th amendment)
b. Early Case
i. Illustrated by SC’s approach in Gibbons v Ogden
1. so long as Congress acts w/I scope of commerce power, 10th amendment
is not a limit
2. the political process is the check
c. Lochner era – 1890s – mid-1930s
i. Court became more protective of state sovereignty – zone of protected
activities
d. State immunity from federal tax
1. NY v US (1946): Federal excise tax on carbonated beverages. NY’s
sale of mineral bottled water was taxed. NY said they were a sovereign
a. Rule: when the states are acting as a private enterprise like an
entrepreneur the tax on them sis allowed
2. Massachusetts v US (1978): federal registration tax on all civil aircraft
imposed to pay part of the cost of federal air navigation. Mass had state
police planes and said they didn’t have to pay the tax. SC upheld tax
a. Rule: uniform tax for private and public is allowed
i. State paying tax for using the federal facility and the tax is
going back to provide facility upkeep
1. key: that the state is not being singled out
e. From 1937 – to early 1990s
i. States lost a lot of power, not just police power
ii. Key early case was US v Darby (1941): “the 10th amendment states but a
truism…”
f. State immunity from federal regulations
i. Maryland v Wirtz (1968): Issue: was overtime under the fair labor standard
act. SC upheld saying it was ok to apply FLSA to state employees
1. here it is the states and others that are being regulated
a. Need to ask “who is being regulated” – the states are not being
singled out
ii. National League of Cities v Usery (1976): issue involved federal regulations
of wages, hrs, and overtime compensation for state police.
 1. SC held: overruled Wirtz and ruled that while general subject matter of
wages and hrs is within scope of the commerce power, Congress may
not regulate the wages and hrs set by a state as an employer
a. SC said forcing states and municipalities to pay min wage would
“directly displace the states’ freedom to structure integral
operations in areas of traditional governmental functions”
2. SC uses a balancing approach – state sovereignty vs. federal interest in
the issues – and court does the balancing
a. Important to see if there is a private sector equivalent
iii. Garcia v San Antonio Metro Transit Auth (1985): transit authority said it was
exempt from min-wage and overtime requirements of the fair labor standard
act. Here the regulation applies to both private and governmental actors
1. SC held: overruled National League’s balancing test and in its place the
SC aid that the states were protected by their participation in the
national political process (ie. State interests are protected by procedural
safeguards in federal system, not by judicially-created limitations on
federal power, and must resort to the political process (ie. Congress) for
relief
a. J. Blackman say approach in National League wasn’t workable
anymore
i. focused on traditional governmental functions test
ii. court recounted efforts to define what are traditional
governmental functions
1. government vs. proprietary
a. example: TX privatized prisons, a traditional
gov’t function is now being operated by private
sector
2. historical view
3. non-historical view
b. Under Garcia, the SC is extremely deferential to any
congressional action which regulates both states and private
entities
i. Garcia is the current analysis for cases in which Congress,
acting within the scope of the commerce power, regulates both
private and gov’t actors
c. Concern with this approach that states have different regional
differences and the longer US Senators and Representatives are in
office they develop more national prospective and lose track of
what’s going in their home state
d. 2 rules from the case
i. if it affects only states – then do balancing test and federal
court is the check of legislative power
ii. if regulation affects state and others – use Garcia the states
are SOL and they have to rely on the political process to look
out for their interests
g. Early 1990s to present (Rehnquist SC used several cases to reassert the place of
the 10th amendment) Commandeering Cases
i. NY v United States (1992): Congress required all 50 states to have compacts
to see which state would have to host low-level radioactive waste. NY lost
and when they couldn’t find a location in the state their were told the state
would have to “take title” and liability for the waste
1. SC held: invalidated part of the congressional commerce clause law
which required certain states title/liability
a. SC said that the federal law commandeered state legislative
processes by directly forcing them to enact and enforce a federal
regulatory program
i. Distinguished from Wirtz, National League, and Garcia
because these laws both states and private entities were
regulated
1. here the law regulated only state governments
b. take title provisions was unconstitutional as that overstepped the
boundary btw federal and state authority
i. it compelled states to take responsibility for implementing a
federal regulatory program
ii. Printz v United States (1997): Brady bill required chief law enforcement
officers (CLEO) to do background checks when people apply to get a
handgun. The federal gov’t doesn’t have the authority to implement a federal
law: called commandeering
1. History
a. No evidence to support imposing federal enforcement
responsibilities on states w/o their consent
b. No “executive-commandeering statutes” in more recent history
2. Structure
a. Constitution gives Congress the power to regulate individuals, not
states
b. In addition, the president is to enforce federal laws – “take care to
faithfully execute the laws”
3. Precedent
a. Do precedents allow federal government to commandeer state
officials to enforce federal laws?
b. Government tried to distinguish NY v US: there, states were
forced to make laws, here local officials required to do
background checks
4. SC held: invalidated the Brady Bill – Congress’ commandeering of
state executive officers violated the system of dual sovereignty
mandated by the structure of the Constitution
5. Rule: Congress can’t commandeer the legislative, executive, or judicial
branches of state governments
a. In Printz it was the executive branch that was commandeered
i. Doesn’t mean state has to comply – when they are being
forced to implement a federal statute
 b. Test used: per se/categorical – Congress can lawfully pay the
state (excise tax)
i. New funding source or excise tax
1. funding can’t be coercive
iii. Example: health care – the power source comes from the tax/spend clause or
the commerce clause
1. Congress forcing the states to implement using the tax/spend clause for
the “general welfare” and also to protect those who are uninsured “the
people” end up paying for it
2. Can Congress just regulate health care
a. 1st you need to see if Congress has the regulatory power over it
i. to use the commerce clause
ii. closest thing to it is social security
iv. Reno v Condon (2000): SC upheld drivers protection act which said the
DMV wasn’t allow to disclose personal information to 3rd party
telemarketing. Reasoning of SC was that drivers’ info is an article of
commerce, and the law is within the scope of Congress’ commerce power
1. Distinguished NY and Printz (the commandeering cases): this law didn’t
require states to enact laws or regulations, or enforce federal statutes –
just the opposite not to admin a program but to not sell the list
a. Commandeering is different from federal government forcing
states to comply with a federal law (ie wage/min hrs regulations in
the private sector)
i. Commandeering is forcing the states to do it and not
compensating them for it (ie Bradley handgun bill)
b. Nor did it require state officials to assist in the enforcement of
federal statutes regulating private individuals
2. No 10th amendment violation because law simply prohibited states from
acting, it was not a mandate to engage in some conduct
3. It is constitutional as long as Congress has a power source
a. Here it was the commerce clause – lists were being bought and
sold all over the country
i. The lists are instrumentality (what’s moving across state
lines)
v. 2 ways that Congress can force the programs
1. pay the states
2. Condition grants – “congress may attach conditions on receipt of federal
funds”
a. Example: Bradley Bill as a condition of receiving the money the
states are required to conduct the background checks
XIV. Separation of Power (PRINTED 2-30)
a. General overview
i. The constitution envisions that the powers of the federal branches will be
separated to a substantial degree, and that the powers of each branch will act
as a check on the others (or a reining in of excessive power)
 1. problems may arise when delegated powers overlap or conflict, and
when one branch exceeds its authority
2. separation is horizontal not vertical (federal and state)
ii. two approaches to dealing with separation of powers problems:
1. formalism: strict separation of the roles and duties of each 3 branch as
specified in the Constitution – “watertight compartment” theory
a. rigid, inflexible
b. there is no blending of power from one to another
c. when the SC shoots down an act of Congress/President it uses this
approach
2. Functionalism: allows more blending of powers in the interest of
effective administration; key is powers should be effectively separated,
and essential checks and balances are preserved
a. When the SC upholds an act it uses this approach and says it’s
constitutional
b. Allows a little bit of blending as long as it doesn’t go too far
c. Based on the theory of checks and balances
iii. Executive power –
1. article II
a. vesting of executive power – carrying out the laws
b. enumeration of powers
2. what is the scope of this power?
a. No definitive answer; SC has resolved in different ways
i. No bright line boundaries, but there is an outer limit
b. Youngstown illustrates differing theories and is usually starting
point for analysis
iv. Legislative delegation
1. delegation of rulemaking power to agencies
a. permitted so long as Congress articulates an “intelligible
principle” to guide agency and limit agency discretion
2. delegation or reservation of “lawmaking power”
a. Congress can’t delegate true legislative powers – it has to set the
laws/policy
i. Then can turn it over to the executive to implement
1. example (ie healthcare Congress wrote the law, up
to the executive to carry out)
ii. executive can’t be delegated to in order to create law
b. “legislative veto” is unconstitutional
c. “line item veto” is unconstitutional
v. Appointing officers
1. general rule: president has power to appoint
a. there are about 2000 people appointed by President within the
federal government
b. basic rule: if principle level (SC judge, cabinet member, federal
judge, etc) must be appointed by the President
i. lower level” inferior officers Congress can appoint
 2. but Congress can decide who gets to appoint “inferior” officers
a. power may be delegated to President, judiciary, or department
heads
b. Cannot delegate appointment power to itself
vi. Removing officers
1. in some instances, Congress can limit power (ie. doing drugs)
2. Genera rule: President appoints and has removal power
vii. Enumerated powers of the branches of the federal government
1. Each branch of government has set powers from the Constitution
viii. Implied powers of the branches of the federal government
1. in addition to those powers specifically listed in the Constitution, the SC
recognizes certain unenumerated (or implied) powers of each branch
2. the implied powers are necessary to carry out the enumerated powers
a. example: enumerated power for Congress to tax, spend, and coin
money give rise to an implied power to charter a national bank
ix. Steps for doing separation of power analysis:
1. #1 Determine which branch of the federal government is acting and
which branch is being affected by the law
a. who is doing what to whom
2. #2 determine whether the challenge to the law is based on a specific
provision of the Constitution which sets forth required rules or
procedures
a. if provision exists, apply rule from Constitution
b. example: Article 1 section 7 before bill becomes law, it must be
presented to the president for signature. If joint congress
resolution passed which is supposed to operate as law without
presentation its in violation of the presentation requirement in
section 7
3. #3 if no specific constitutional provision applies, a balancing approach
is called for
a. on the side of the acting government – identify the constitutional
power asserted as a basis for the action taken
b. on the affected branch side – what power is being adversely
affected, and if the intrusion is too great
b. Executive Power
i. Main enumerated powers are to execute the laws, act as commander-in-chief,
enter into treaties, appoint officers, veto congressional acts presented for
signature, and grant pardons for federal offenses
ii. Article II
1. section 1, clause 1: vesting of executive power – “the executive power
shall be vested in a president…”
a. framers put it first on purpose
2. section 2, clause 2 (foreign relations)
a. make treaties with advice and consent of Senate
b. Appoint, with advice and consent of Senate
i. Ambassadors
 ii. Justices of the SC
iii. Other officers not otherwise provided for
c. Note important limit on appointment power: Congress may vest
power to appoint “inferior” officers in president, the judiciary, or
heads of department
3. common problem is what are the president powers during war time
c. Presidential action affecting “congressional” powers (internal matters:
domestic lawmaking)
i. Youngstown Steet & Tube v Sawyer: during the Korean War, President
Truman issued an executive order directing sec of commerce Sawyer to seize
and operate most of the nation’s steel mills, to avert the effects of a strike by
the steelworkers union. The owners challenged that president didn’t have the
authority (like a taking case from prop 2)
1. Majority opinion – authority for seizure, if it existed, must derive from
the constitution or an at of congress (president thinks the power comes
from article 2 under the commander-in-chief or as chief executive
power)
a. No act of congress authorized in the labor mgmt relations act of
1947 congress rejected amendment for seizures in cases of
emergency
b. Not authorized by constitution, either
i. Power to seize not implied by express delegation
2. Jackson Concur Opinion (more influential of the opinions), the opinion
divides presidential actions into 3 categories or zones: (the zones of
power)
a. Zone 1: expressly or impliedly authorized by Congress
i. Presidential authority is “at its maximum/zenith” because it
includes all the authority of the president plus all that Congress
has delegated
ii. SC will be very deferential to presidential action
b. Zone 2: those undertaken in the absence of congressional grant or
denial of authority: “twilight zone” (the president acting alone)
i. President relies upon independent presidential powers;
Congress may have concurrent power
ii. Congressional inaction may invite this sort of action
iii. SC will have to balance the competing interests of the
president and Congress
c. Zone 3: actions that are “incompatible with the expressed or
implied will of congress…” (lowest zone – the president acting
contrary to the will of Congress)
i. Must rely on presidential powers minus constitutional
powers of congress
ii. SC will scrutinize the presidential action very carefully
3. Analysis using Jackson opinion
 a. The president was in the lowest zone because Congress didn’t
delegate the power. The president had previously asked for the
power to seize and congress rejected it
i. But congress can grant emergency powers as needed
b. Thus the seizure was exercise of authority without law and the
president doesn’t have the authority to seize private property
ii. Dames & Moore v Regan: effort to resolve the Iran hostage situation and an
executive order to suspend all claims, nullify judgments, and ordered transfer
of assets to be paid out through claims tribunal. Dames already had a
judgment for work that did as a contractor and filed suit
1. first issue: executive order to implement an agreement between the US
and Iran involved the release of frozen assets
a. Analysis: federal law gave president the power
i. In Zone 1, it is supported “by the strongest of presumptions
and the widest latitude of judicial interpretation…”
1. challenger bears heavy burden of persuasion
2. second issue: authority to suspend, by executive order, claims against
the foreign government
a. Analysis: no federal law expressly on point
i. But congress implicitly approved claims settlement by
executive agreement in another federal law
ii. Zone 2: there was a history of congressional consent in this
sort of presidential action
1. where congress has consented to president’s action,
and the action was a necessary incident to resolving a
foreign policy dispute, SC was not prepared to say
president lacked the power to act
b. the SC ruled that the presidents actions nullifying attachments and
ordering the transfer of assets were authorized by a specific
congressional statute
i. when the president negotiates the claims the court thinks
it’s zone 2
ii. clearly illustrates that the president has broad discretion to
act in foreign relations
3. takeaway: the Congress may, by statute or resolution, authorize the
president to take certain action
a. even without specific authorization, congressional consent to
presidential action may create an inference of congressional
authorization
iii. Medellin v Texas: M, a Mexican was convicted and sentenced to death for a
gang rape and murder without being informed of his right under the Vienna
Convention to seek assistance from Mexican diplomats. M received a ruling
from the International Court of Justice (ICJ) that US had violated the Vienna
Convention and M’s conviction must be reconsidered
 1. Provision of the Vienna Convention of Consular Relations and the ICJ’s
decision are not binding sources of domestic law in the absence of
implementing legislation
a. President order of a memo that state courts must adhere to the
ICJ’s decision regarding consular notice and retry anyone who
didn’t receive notice
i. This memo was held to be invalid
b. it’s a non self-executing treaty and Congress must pass law to
implement it – which it never did
i. Thus, the President was acting in zone 3, by using trying to
use an authority to make co-sovereign orders on new trials
which he didn’t have
1. power president was using was foreign affairs
(which is broad internationally but narrow
domestically where he was trying to apply it
ii. no longstanding practice of Congressional consent per
Dames/Moore evident in this case
d. Presidential action affecting “congressional” powers (external matters:
foreign affairs and war)
i. General overview
1. main concept: In the areas of war and foreign powers (2 big powers
from president), the Constitution creates a tension between the
legislative and executive branches – tension the Court has never clearly
resolved:
a. nature of foreign powers
b. treaties versus executive agreements
c. are actions under the war powers justiciable or are these political
questions?
d. Tension: president – power over military, congress – power to
declare war
2. nature of foreign affairs power:
a. debate is over source and scope of power
i. inherent in sovereign and plenary; Curtiss-Wright
ii. derived from Constitution and limited; Youngstown
b. SC has never declared a winner
c. More clear then war powers
i. President has a lot of power
ii. Primary an executive branch issue
3. treaties versus executive agreements:
a. treaties require Senate ratification by 2/3 vote and sometimes
implementing legislation
b. executive agreements do not
i. typically with only one other country
4. war powers
a. constitution distributes between Congress and President
i. Congress power to declare war is a check on the executive
 ii. President has power as the commander-in-chief
b. very little guidance from the SC – usually very deferential to
Congress and President
c. Courts usually rule questions in this area are nonjusticiable
political questions (ie. was it a proper war)
ii. Foreign affairs powers
1. congress may delegate to the president the power to act in foreign affairs
2. as part of the government’s power to deal in foreign affairs, congress
may vest discretion in the president to implement congressional policy
on foreign nations
a. such a delegation need not be based in a specific constitutional
provision; it is justified under Congress’ inherent powers to deal
in foreign affairs
3. US v Curtiss-Wright Export Co: Congress issued a joint resolution
authorizing the president to place an embargo on the sale of arms to
countries involved in armed conflict in South America
a. The president was in zone 1 because it was an express
authorization to order the embargo
i. Some of the presidential powers in foreign affairs are
broader than just making treaties
1. The president as exclusive power to act as the sole
agent of the federal government (one voice for the
nation)
2. Congress must often give president a degree of
discretion different from domestic relations
ii. Foreign powers inhere in the sovereign, do not depend on
enumeration in the Constitution
iii. Treaties and executive agreements
1. Article II, section 2, clause 2: President makes treaties with advice and
consent of Senate (must be ratified by Senate with 2/3 vote)
a. Article VI, clause 2 makes treaties made under authority of US
supreme law, together with the Constitution and federal statute
2. two kinds of treaties
a. self-executing: do not need implementing legislation
i. they contain all the details of the agreement between the
countries and have to force of law as soon as they are ratified by
the Senate
b. Non-self-executing: need to be implemented by legislation passed
by Congress
i. They do not have the force of law until implementing
legislation is passed (see Medellin)
3. no explicit textual authority for executive agreements in the Constitution
– see Dames/Moore
a. since early-1900s, use of executive agreements has far outpaced
use of treaties
 b. an executive agreement is an agreement between the president and
the chief executive of another country
i. no senate ratification is needed
ii. inherent power of president as head of the executive branch
with power to deal in foreign affairs
iv. War powers
1. note the variety of constitutional provisions that disperse war powers
between legislative and executive branches (ie. shared authority)
2. a lot of questions, no definitive answers
a. what is war, who gets to declare war, who gets to commit troops
to war
i. are any of these questions justiciable
3. under article 1, section 8, clause 11 congress has the power to declare
war, clause 12 raise armies and clause 13 navies, and provide for the
national defense
a. when used together with the necessary and proper clause congress
may exercise this power in peacetime and wartime
b. Article II, section 2, clause 1: president is commander-in-chief of
army, navy, and militia
4. SC has rarely spoken about these issues: The Prize Cases (1862)
a. President Lincoln ordered a blockade against secessionist states
(start of the Civil War: but before a declared war)
i. No declaration of war by Congress yet
ii. SC upheld blockade
1. President may not declare war
2. But state of war may exist with or without a
declaration
3. Where war is waged against the United States,
President has a duty to defend even without
congressional action
b. Factors that might be considered in deciding whether state of war
exists
i. Facts of the conflict
ii. Actions of other nations in joining or declaring neutrality
iii. Congressional action authorizing (or not authorizing?) the
use of force
5. Declaring war
a. Though President cannot “declare” war, does this matter? Only 6
declared wars in Nation’s history
i. Does it matter whether there is a declaration of war if
President has committed troops to foreign hostilities or actions?
b. What does it take to have a “declaration” of war?
i. Joint resolution by Congress
ii. “Congress exclusively possesses the constitutional power to
initiate war, whether declared or undeclared, public or
private…”
 6. Commitment of troops:
a. Commander-in-Chief power entails power to commit troops to
hostilities, or to “surge” additional troops
i. Long, well-recognized history of Presidents using power,
even without congressional approval
1. Must let congress know within 48 hrs, normally
presidents are good with this
ii. Congress has recognized President’s power to do so under
the War Powers Resolution of 1973 (questionable
constitutionality as it conflicts with the commander-in-chief
powers)
1. Purports to impose on President reporting
requirement and troop withdrawal requirement in the
event Congress does not approve;
2. Troops can be in combat for 60 days without a
declaration of war or a joint resolution
a. Goal is for short term or get approval of
congress
b. Presidents are less compliant with this
7. Presidents have complied with reporting, but have ignored troop
withdrawal
8. Are actions under the war powers justiciable? See Campbell v. Clinton
(2000):
a. In two words, generally no
i. Either a political question;
ii. Or no standing to challenge
9. Campbell v. Clinton: a few congressman filed suit against President
Clinton that he violated the War Powers Resolution during a NATO air
strike. There was no formal declaration of war or a joint resolution
from Congress. The conflict lasted for 79 days, 19 more then the
allowed 60 under the WPR
a. Court said they had no standing because that lacked injuries and
damages (if they were able to show that they had children in war it
might have been enough for possible injury)
i. Judge said there was a political question and no criteria for
determining was a war actually is
ii. Thus the court dismissed for being moot
b. The president was in zone 1 (enough for zone 1, 1 ½ :
i. Congress agreed to funding
ii. Some elements of foreign affairs
1. WPR – intent of Congress up until 60 days
iii. NATO treaty
1. if one member nation attacked the others have to
come to their aid
e. Individual rights and the war on terrorism
 i. The SC has jurisdiction under federal habeas corpus statutes to review the
detentions of persons, whether citizens or foreign nationals, detained by the
government in the war on terrorism
ii. Detention of US citizen enemy combatants (EC term created because if they
were prisoners of war they can’t be tortured, get red cross visits, etc)
1. a US citizen who is detained as an enemy combatant is entitled to notice
of the charges against him and some sort of hearing to contest those
charges with the assistance of counsel
2. Hamdi v Rumsfeld: a detention of an enemy combatant of US citizen,
captured of foreign battlefield and alleged to be fighting for the enemy.
He was held at Guantanamo Bay and then transferred to a military base
in the US and was not able to bring HC writ because he wasn’t allowed
access to attorney, and never told of the charges against him. His father
filed the writ for him
a. Plurality said that even when the detention of enemy combatants
is legally authorized (authorization for use of military force after
9/11) a court must decide what process is due a citizen who
challenges his enemy combatant status
i. They applied the balancing test from Matthews v Eldridge
to decide what is constitutionality required, opting for a flexible
due process approach
1. Test (balance of individual interest in liberty vs
government interest in national security; 3rd factor
benefit of additional government safeguards) - citizen
detainee seeking to challenge enemy combatant status
must receive notice of factual basis for classification,
and fair opportunity to rebut facts before a neutral
decision maker – these are the essential requirements
of procedural due process
2. process might be tailored for circumstances, like
admission of hearsay and presumption in favor of
government
ii. the time frame for detention is not indefinitely but for the
duration of the conflict
b. Majority said to suspend writ only when rebellion, invasion
(narrower in time of war)
c. Basically a citizen gets his day in court (due process)
i. Military tribunal might meet requisite standards –has to be
fair could be court or military tribunal
ii. Right to counsel exists and notice of charges so they have a
fair opportunity to rebut the charges
d. Dissent – when citizen is involved the options are to suspend HC
or charge and try for treason
i. Since the writ here was not suspended he should have been
tried for treason – reason they didn’t was probably they didn’t
have the evidence, need 2 witnesses
 ii. Thomas dissent – detention was within federal
government’s war powers
e. Takeaway – the case is excellent example of judicial review
i. Here judicial review for executive branch earlier cases in
outline dealt with review for legislative branch
iii. Restrictions on military commissions used to try enemy combatants
1. military commissions used to try enemy combatants at Guantanamo Bay
must comply with federal law and principles of international law
2. Hamdan v Rumfeld: non US-citizen who claimed to be Bin Laden’s
former driver was held in Guantanamo Bay, is he entitled to due process
and to what level. The Detainee Treatment Act (DTA) was established
to determine if prisoners are in fact enemy combatants
a. SC held that DTA did not strip courts of HC as to pending cases at
the time Congress passed the Act (Hamdan’s already had writ
pending)
b. SC then held Code of Military Justice (UCMJ) and the
Authorization for the use of Military force (AUMF), and the DTA
merely acknowledge presidential authority to convene military
commissions when justified under the Constitution and law
i. The commission’s structure and procedure violate the
UCMJ because precluded D from attorney but just a
representative, he can be excluded from parts of the hearing,
can’t see all of the evidence against him (some classified), and
government can bring evidence that was received by torture
interrogations
ii. Thus the SC held the plan to try detainees before military
commissions because those tribunals were unauthorized by
federal statute and violated international law
1. the detainees aren’t given full due process to
determine if they are enemy combatants
iii. In addition, SC held procedural defects regarding exclusion
of accused and admission of evidence:
1. UCMJ requires commission procedures to be
“uniform insofar as practicable” with procedures used
by military court martial
2. president’s determination that uniformity not
practicable not sufficiently justified
iv. Military commission not a “regularly constituted court” as
required by Geneva Convention, Common Article 3
1. article 3 does not require all the protections of a
civilian court or a court martial, but it does require
some protections missing form the procedures used in
Hamdan’s military commission (some due process)
iv. Alien detainees imprisoned at Guantanamo Bay have a right to challenge
their detention in US courts
 1. Boumediene v Bush: Congress response to Hamdan ruling by enacting
Military Commissions Act (MCA), which purpose was to strip all US
courts of HC jurisdiction over Guantanamo Bay detainees
a. The 2 issues are 1) does the suspension clause guarantee the
availability of HC to non-citizens held at G.Bay, where the US
exercises complete jurisdiction and control, 2) whether Congress
provided an adequate substitute for HC
b. 1) SC rejected the government’s “formal sovereignty-based test”
for determining if the writ extends off-shore, using the 3 factors in
determining the geographical reach of the suspension clause
i. citizenship of detainee and adequacy of process used to
determine that status
ii. nature of the sites where apprehension and detention took
place
iii. practical obstacles inherent in resolving detainee’s
entitlement to writ
1. SC held that the “cases before us lack any precise
parallel” and that the suspension clause has full effect
at G. Bay
a. G. Bay was in indef lease, complete
military/civil control, US sovereignty for all
intensive purpose a US territory
2. Thus MCA must be an adequate substitution as HC
(issue 2)
c. 2) (Adequate Sub) Reasoning not adequate - significant
procedural limitations in hearings; counsel not provided to
detainees, much government evidence classified, government
evidence accorded presumption of validity, torture (coerced)
testimony/evidence is admissible and deemed credible
i. issue with judicial review – limited to DC circuit of CA but
the scope of review limited to looking at just questions of law
(ie. standing) but not factual findings
1. no opportunity for detainee to supplement the
record on review with exculpatory evidence (evidence
to prove D’s innocence)
2. if they want to suspend HC – MCA not an adequate
substitution
d. SC concludes that the provision of the MCA barring habeas
review in federal courts in unconstitutional and alien detainees are
entitled to right of HC to challenge the legality of their detention
i. US has total military and civilian control over the military
base. MCA unconstitutional because it denied federal courts
jurisdiction to hear habeas actions that were pending at the time
of its enactment
f. Congressional Action affecting “Presidential” Powers
i. Delegation of rulemaking power
 1. non-delegation doctrine:
a. Congress can’t delegate it’s true law making ability
i. Congress has to set the law/statutes and the principles to
guide execution of them
b. Schefhter Poultry (1935), invalidated federal laws on the ground
that they improperly delegated legislative power to the executive
branch
c. SC continues to recognize non-delegation doctrine but has not
found any federal law unconstitutional upon this ground since
1936
2. Current law
a. Whitman v American Trucking (2001)
i. Truck owners argued the clear air act is unconstitutional
delegation to the EPA
ii. Enabling law stated an “intelligible principle”
1. Intelligible principle is the minimum that Congress
is required to do
2. EPA shall set pollution standard with public health
as the #1 concern
3. Validity of agency regulations
a. Chevron v National Resource Council (1984)
i. Express delegation: regulations valid unless “arbitrary,
capricious, or manifestly contrary to the statute”
ii. Implied delegation: regulations valid if reasonable
iii. Federal courts should defer to the admin agency as long as
the delegation is reasonable (check/limitation on fed)
4. As a general matter, Congress may delegate to the President, other
officers in the executive branch, or an independent regulatory
commission, the power to set rules and regulations to implement
congressional goals. Delegation valid if
a. Congress has not attempted to give away some non-delegable
power (ie declare war)
b. Congress has stated the objective of the law “intelligible
principle”
c. Congress has provided specific standards for the executive branch
official or independent commission to follow (standard to measure
them against)
ii. Legislative delegation and line item vetoes
1. whenever Congress passes a law, or takes action that is the equivalent of
passing a law, it must meet both the bicameral and presentment
requirements of article 1, section 7
a. bicameral means that both the house and senate must pass the bill
b. presentment means that the bill must be presented to the president
for signature
2. INS v Chadha: federal statute that authorizes attorney general to grant
exceptions to deportation on a case by case basis when there is a
 hardship. It also allows either house or senate to override the attorney
general and force deportation. The house voted to deport Chadha
a. The house acted in a legislative capacity when it passed this
resolution: it altered Chadha’s legal status
i. When congress acts to implement policy it must follow the
procedures prescribed in Constitution (bicameral
passage/presentment)
b. The legislative veto was not accomplished using the
constitutionally-required procedure and was unconstitutional
i. Problem was no bicameral (only 4 cases where one house
allowed to act, ie senate confirmation)
1. the concern is separation of powers
2. a formalistic interpretation
c. Dissent – concern that if doesn’t allow for reining in of the
executive branch (incorrect reasoning)
i. If congress is not happy that can
1. pass new statute/rescind/amend which is passed
properly
2. withhold funds
3. oversight authority after law passed
3. it is unconstitutional for Congress to give president the power to cancel
an item of new direct spending after the president has already signed the
spending measure into law (such a line item veto violates the
presentment clause: line item is a pork barrel/earmark)
a. Clinton v NY: constitutional text expressly authorizes president to
play a role in exacting statutes, but is silent as to amendment or
repeal
i. There were 3 limitations (the intelligible principle to stay
within the limits)
1. reduce federal deficit
2. can’t veto critical functions of government
3. harm national interests
ii. By giving the president the “unilateral power to change the
text of duly enacted statutes” Congress has effectively sought to
alter the procedures (presentment) set out in the Constitution
1. the president has the option to veto the bill and send
it back, which allows Congress to override veto by 2/3
vote (the check)
iii. Zone of power: zone 1 because Constitution authorizes to
sign/veto bill and the statute authorized him to line item veto
(written by Congress)
iv. Therefore, the line item veto is unconstitutional
1. it authorizes the president to create a law (leg
power) that was not voted on by either house or
presented to the president for signature (separation of
power issue)
iii. Appointment and Removal of Officers
1. Removal
a. Constitution is silent
i. Issue is if president can appoint can president remove
unilaterally
1. Myers v US: president’s executive power includes
the power to remove executive officers without senate
approval
b. Humphrey’s Executor v US: congress can create agencies with
quasi-legislative or quasi-judicial functions
i. May require that officers act independent of executive
control
ii. As to officers of these agencies, Congress can specify term
limits and provide that they may only be terminated for cause
iii. Today this would be functionalistic approach
2. Appointment (one of the 4 presidential powers)
a. Appointments clause article 1, section 2, clause 2
i. President nominates and with advice and consent of Senate
appoints, ambassadors, SC justices, and all other officers whose
appointment are not provided in the Constitution (principal
officers)
ii. Congress may vest appointment of inferior officers in the
president, the courts, or heads of departments
iii. 2 categories of employees (officers appointed)
1. at will: vast majority – serve at the pleasure of the
president and can be removed for any reason (outside
of civil rights – ie, sex, gender)
2. for cause: only can be removed for specific reasons
a. ie- conviction of felony, substance abuse, etc
b. the theory is that they are buffered from
political influences
ii. majority are commissioners
iv. Buckley v Valeo: federal election campaign act directed
that senate president pro tem and house speaker would each
appoint 2 members of the FEC
1. this delegation of appointment authority was
invalid:
a. appointments must be made according to the
appointments clause
b. nothing in appointments clause allows house
or senate appointments (ie president pro tem is
not on the list of President, court, dept head)
c. this goes against separate of powers
2. matters if they were inferior of principal
 a. two issues to look for was appointee inferior
and whether Congress has vested appointment
in appropriate person (pres or dept head/court)
v. Bowsher v Synar: Budget reconciliation act to reduce the
federal deficit, Congress authorized comptroller general who
gave president recommendations where to cut the budget across
the board. The appointment of this position was picked
between three people selected by Congress, but could be
removed by Congress. Comp Gen worked for the president
(executive function across the board budget cuts)
1. Issue: could Congress delegate executive functions
to a government officer who is removable by Congress
a. No, Congress may not have removal power
over an executive official
b. The only way that congress may remove an
executive officer by impeachment
ii. Thus, the delegation was unconstitutional
iii. Congress power to remove was like an
legislative veto
2. overall it was a separation of power issue, intrusion
of Congress into presidential power
a. generally the person who can appoint can
remove (exception is Morrison)
vi. Morrison v Olson: an act for independent counsel
appointment, which starts in with the Attorney General (exe
branch) who makes a recommendation, the appointment comes
from Special Division of the CA (court). Appointment clause
allows certain appointments (inferior officers) by president,
dept heads, or courts. Broadly speaking there is supervisory
authority in the exe branch because he can be removed by the
Attorney general
1. Issue: is independent counsel an inferior officer –
Yes, 3 reasons
a. 1st – under the act the counsel can be
removed by Attorney General “for cause”
ii. subordinate to attorney general
b. 2nd – counsel has relatively limited powers
ii. with a specific function
c. 3rd – counsel is appointed for a limited
tenure, and jurisdiction is limited by
instructions from appointing judicial officers
d. Is this person subject to senate
confirmation? NO – important clue, if yes,
normally a principal officer
2. Issue: did limiting authority to remove only “for
cause” interfere with presidential power
 a. No, Congress was trying to reduce the
influence by the president (need a buffer)
3. Removal restrictions imposed by Congress will be
valid unless they unduly interfere with an essential
attribute of the Presidency
a. Here the removal power was permitted
b. Good reason for counsel having a degree of
independence
c. President’s need to control independent
counsel not so central to functioning of exe
branch that President must be able to terminate
at will
4. Separation of Power: was the scheme Constitutional
a. Did not violate the separation of power doc
because it doesn’t interfere with the functions
of exe branch
ii. Congress did not attempt to increase it’s
power at expense of President
iii. The process starts in exe, then court, back
to exe where he can be removed for cause
(under the theory if at will they would be
removed if they were closing in on the
president, and the president could protect
himself by firing the counsel – need the
buffer)
5. Dissent – limiting of the president power
6. this is a functionalistic approach – court recognizes
what Congress is trying to do
a. today if evidence that a crime was
committed the attorney general will apt a
special prosecutor and they will conduct an
investigation and prosecute (ie- Scooter Libby)
vii. Free Enterprise Fund v Public Company Accounting:
Congress oversight accounting board (for cause employees) to
oversee accounting problems. Board was a sub-agency within
the SEC and appointments made by SEC and removal vested in
SEC
1. board doing the exe work – oversight/prosecuting
accounting firms
2. the president doesn’t have appointment/removal
power
3. SC said it was unconstitutional – it stripped the
president of power. The majority picks up on dissent
from Morrison from Scalia
g. Executive Privilege and Immunity
i. General Information
 1. the president enjoys a qualified privilege to maintain the confidentiality
of executive communications
a. in addition, the president is absolutely immune from civil liability
for executive actions taken while president
b. the issue of criminal liability is unsettled, but the president
remains liable to impeachment
c. qualified privilege is strong for national security, military secrets,
etc but breaks down when crimes are committed
2. Executive privilege: an inherent power
a. Not absolute, but qualified; privilege may have to yield to other
government interests
3. presidential immunity
a. court has not decided issue of criminal immunity
b. absolute immunity from civil damages liability for official acts as
president
i. theory don’t want the president looking over his shoulder
when making decisions
c. debate is over source and scope of power
i. no immunity for actions taken prior to becoming president
ii. lower level executive officials enjoy qualified immunity
4. president may be impeached for treason, bribery, or other high crimes or
misdemeanors (no set definition on high crimes)
a. this is the ultimate check on the president
ii. Executive Privilege
1. executive privilege means that a president has a presumptive (qualified)
right to refuse to disclose materials, documents, or communications that
are generated during that president’s tenure in office
a. it is a presumptive privilege (the burden is on the party seeking
disclosure to justify the production of the materials) which may be
overridden by a sufficiently weighty reason for disclosure
2. privilege is based on the need of the president to be able to conduct the
affairs of office free from excessive public scrutiny
a. Exam: need to be a specific as possible about the precise reason
for the assertion of executive privilege and about the need for
disclosure
3. US v Nixon: Watergate and the cover up and subpoena to turn over the
tapes which pertained to the burglary. Nixon claimed an absolute
privilege
a. SC held that there was a qualified executive privilege as a
function of separation of powers
i. Checks and balances are inherent in the constitutional
structure requiring some degree of secrecy (military, national
secrets, diplomatic, etc)
b. Analysis: 3 points
i. 1) under Marbury, the SC decides whether executive
privilege and, if so, the scope of the privilege
 ii. 2) privilege is inherent in the Executive
iii. 3) executive privilege is not absolute
c. Balancing test – Nixon’s generalized claim of privilege was
outweighed by the fundamental due process rights of the parties in
a criminal prosecution (not privileged)
i. Balance of generalized need for confidentiality against
interest in criminal justice
1. may be justifications for greater confidentiality to
protect military, diplomatic, or national security secrets
2. there is an interest by the burglars to see the
tapes/evidence – by making a due process argument
4. Cheney v US District Court: SC ruled that VP Cheney didn’t have to
respond to discovery orders. SC said when DC are asked to enforce
unnecessarily broad subpoenas, they should first explore alternatives to
forcing the executive to invoke executive privilege. Thus, the assertion
of executive privilege is not a necessary precondition to the Executive
asserting separation of powers objections to the disclosure orders
a. Executive privilege is an extraordinary assertion of power, not to
be lightly invoked
b. Invoking privilege is not a necessary precondition to civil
discovery objections based on separation of powers grounds
c. Need not be invoked in civil proceeding to resist overboard
discovery where DC has other means to limit scope of discovery
5. Summary
a. Privilege is inherent in Executive Branch
b. Nature of privilege depends on facts – may be qualified or
absolute
c. May have to yield to other important interests
iii. Presidential Immunity
1. executive immunity means that the president is immune from liability
for damages in a civil suit for any official act performed while the
president is in office
a. as with executive privilege, there is no constitutional provision
conferring such immunity, but the court has recognized it as a
necessary incident of the powers of the president
2. Absolute immunity for the president
a. SC has ruled that a president has absolute immunity from civil
damages liability for his official acts, as long as the president was
acting within the outer perimeter of the duties of the office
i. As long as the president was arguably performing the
duties of the office, the president is protected by absolute
immunity
b. Nixon v Fitzgerald: president is entitled to absolute immunity
from damages liability based upon his official acts. SC refused to
subject the president to potential liability on every employment
 decision which could be traced back to the president as head of
the executive branch
i. Justifications (don’t want the president looking over his
shoulder)
1. an incident of president’s unique office
2. separation of executive and judicial powers
3. supported by history and tradition
ii. Protection from presidential misconduct
1. impeachment; other congressional oversight
2. press scrutiny, desire to be re-elected
3. No temporary immunity from civil damages litigation for events that
occurred before the president took office
a. Separation of powers principles do not require federal courts to
stay all civil damages litigation against a sitting president until he
leaves office
i. The constitution does not require temporary immunity from
a civil damages lawsuit during a president’s term in office
b. Clinton v Jones: Jones sued Clinton for sexual harassment when
he was government of Arkansas
i. SC held that the constitution does not require that a lawsuit
for civil damages against a sitting president be deferred until the
president leaves office, rejecting the president’s argument that
defending the suit would necessarily interfere too greatly with
the president’s ability to carry out duties of the office
1. it was unfair for Jones to have to wait, evidence can
get lost, memories fade, etc
ii. Presidential immunity does not extend to acts done before
assuming office
1. will not impair president from carrying out duties of
office
2. DC has discretion to fashion appropriate stay or
other case management relief as needed
a. But no per se rule granting stay during term
of office
iii. Bottom line – Clinton can be held liable for sexual
harassment so he settles
c. Hypo: Monica brings the lawsuit – it could proceed because it’s
not within the scope of his official duties
4. Qualified immunity for presidential aides and advisors
a. Executive branch officials other than the president have qualified
immunity from civil damages liability
i. To determine whether qualified immunity applies, ask
whether a reasonable person in an official capacity knew or
should have known that his actions were violating clearly
established constitutional rights
 b. Harlow v Fitzgerald: for executive officials in general, including
upper-level presidential aides exercising discretionary authority,
general rule is qualified immunity
i. On a case-by-case basis, aides with discretionary authority
in areas such as national security or foreign policy may be
entitled to absolute immunity
iv. Impeachment
1. ultimate check on the president
2. impeachable offenses:
a. not limited to statutory crimes – “high crimes and misdemeanors”
b. Clinton was on trial for perjury and obstruction of justice
c. There are some constraints on what are offenses that can be
impeached
3. Congressman Gerald Ford “an impeachable offense is whatever a
majority of the House of Representatives considers it to be”

XV. State Power to Regulate (Printed through Here)

a. Preemption
i. Main concept: federal law – the constitution, federal statutes, and federal
treaties – are supreme (Article 6, clause 2 – state law may be preempted by
federal law under the supremacy clause
1. key issue is federal intent; not always clearly
2. preemption may be express or implied
3. two general categories
a. express preemption: Congress expressly declares intent to preempt
state law
b. implied preemption: Congress has not expressly declared intent to
preempt, but intent may be implied by the circumstances
4. key factor is determining Congress’ intent
ii. 3 scenarios (who is acting/who is the actor)
1. Congress under the commerce clause and states aren’t doing anything
a. basic commerce clause/interstate commerce
2. Congress isn’t acting and states start to regulate
a. Dormant commerce clause
3. Both Congress and states acting in same area and regulating the same
thing
a. State preempt by federal
iii. Basic preemption framework
1. express preemption – clear from express language of the federal statute
a. congress expressly declares intent to preempt the state law
b. example: Employee retirement income security act of 1974
preemption provision says that it “supersedes any and all state
laws insofar as they may now or hereafter relate to any employee
benefit plan”
2. implied preemption (2 types):
a. field preemption – federal law occupies the field
 i. federal law so completely occupies the field that there is no
room for state regulation
ii. likely to be found in two circumstances
1. constitution has clearly indicated that federal law
will be exclusive in an area of law
2. comprehensive regulatory scheme shows federal
intent to completely occupy the field to the complete,
or near complete, exclusion of the states
3. examples: foreign affairs and immigration
b. conflict preemption (2 types):
i. impossibility: of complying with both state law and federal
statute
1. requirements of federal and state law make
compliance with both impossible
2. frequent issue is whether federal and state laws are
mutually exclusive, or whether federal law simply sets
a standard that state law may exceed
ii. frustration of federal purpose: allowing state law to stand
would frustrate a federal policy or program
1. Pacific Gas v State Energy: state imposed a
temporary ban on construction of new nuclear power
plants pending development of nuclear waste disposal
plan
a. Utility claimed law was preempted by
federal law encouraging nuclear power
b. Court found no preemption because federal
purpose was safety but state purpose was
economic
ii. They were regulating different things
b. Dormant Commerce Clause – negative implications of the commerce clause
i. Main concept: the “negative” of flip side of the commerce clause prevents
states from unreasonably interfering with, or discriminating against, interstate
commerce. Key issues are:
1. states granting preferential treatment to their in-state businesses; or
2. states discrimination against out-of-state businesses
ii. commerce clause the affirmative – sword/power source
1. commerce clause is there to promote one national economy
2. dormant – shield
a. all judicially made
b. acts as a limitation on what states can do to interface with
interstate commerce
c. congress has not acted – at rest and it gives the states opportunity
to wreck havoc
iii. Historically:
1. Gibbons discussed but didn’t decide dormant commerce clause issue
2. early approaches were categorical
 a. commerce versus national concern
b. local versus national concern
c. direct versus indirect regulation of commerce
iv. today, a functional inquiry centering on discrimination against interstate
commerce
1. modern analysis:
a. central question: Has the state discriminated against out-of-state
interests, or are in-state and out-of-state interests treated the same
i. if a state law facially discriminates, or has the purpose of
effect of discriminating, a nearly per se rule of invalidity applies
ii. if a state law does not facially discriminate or only
incidentally burdens commerce, court employs a much more
lenient balancing test
v. 3 tests
1. per se – state regulation to give competitive advantage over out of state
a. states lose 100% of the time
2. strict scrutiny – when state regulation clearly discriminates against out
of state but for a reason (ie citizen health, safety, etc)
a. high standard of judicial scrutiny – burden on the states
b. 2 prongs
i. compelling reason
ii. means narrowly tailored
c. states lose 90% of the time
3. Pike balancing test (50-50 states lose)
a. Court 1st determines if there was no discrimination against out of
state and the other side is the interests incidental
vi. underlying principles
1. Congress has plenary power to regulate interstate commerce:
a. To the extent Congress chooses to exercise this power, federal law
may preempt state law
b. But if Congress chooses not to exercise this power, the “dormant”
or “negative” commerce power may still prevent states from
regulating interstate commerce
c. Court has inferred dormant commerce power from textual grant of
commerce power
2. key issue is whether state law discriminates against out-of-state interest,
or treats in-state and out-of-state interests the same
3. when does a law discriminate?
a. Facial discrimination: the law, on its face, discriminates against
out-of-state interests
b. Facially neutral law: a facially neutral law may have the purpose
or effect of discriminating against out-of-state interests
vii. History
1. a variety of approaches that tended to be categorical
2. Gibbons v Ogden: when state exercises police power, it is not exercising
any power to regulate commerce
 a. Court did not resolve dormant commerce clause issue
3. Willson v Black Bird Creek Marsh: authorizing a dam was within
state’s police power
a. Enhanced property values along waterway and improved health
b. Congress didn’t regulate in this area and it was a minor impact to
interstate commerce
4. Cooley v Board of Wardens: local pilots were required for boats coming
into port in Philadelphia because they were aware of the channels
a. Analysis
i. Power to regulate commerce entails a wide range of
subjects:
1. some require uniform, national regulations
2. others require diverse, local regulations
b. SC said that it was constitutional as there was no need for national
uniformity here and room for local regulations
i. Regulation of pilots didn’t require exclusive national law;
Congress said so in federal law
ii. No preemption – express authorization/saving clause
1. opposite of express preemption (saving clause of
state regulatory authority)
5. Example: After Exxon tanker spill, ports in Seattle made ordinance
requiring double haul in order to dock in port
a. Industry fought it saying that if it was for safety that it is up to
Congress to regulate (national conformity)
viii. Congressional authorization of state regulation
1. if Congress authorizes a state to impose a discriminatory tax on out of
state entities, such a tax will be immune from a dormant commerce
clause challenge, but will be invalid under the equal protection clause if
the only reason for the law is local economic protectionism
a. rare that it exists
2. Prudential Insurance Co v Benjamin: the SC upheld, against a dormant
commerce clause challenge, a South Carolina law that taxed out-of-state
insurance companies at higher rate than instate insurance companies
a. It was discriminatory to give in state insurance companies
preferred status
i. Congress can’t allow state to tax/behave in a way that is
unconstitutional
1. must be express: the courts won’t imply it
ix. Current doctrine: a 2 step analysis
1. 1st: does the state law discriminate against out of state interests?
a. If yes, then state law is either per se invalid (local economic
protectionism) or strict scrutiny applies (Maine v Taylor)
i. Maine v Taylor is the only example were state wins under
strict scrutiny
2. if state law does not discriminate or only incidentally burdens out-of-
state interest, then apply a balancing test that weighs the burden upon
 interstate commerce against the local benefits of the law (Pike
balancing)
a. if state law does not discriminate or only incidentally
discriminates against out of state interests, and is motivated by a
legitimate local interest
i. then SC will uphold the law unless the burden on interstate
commerce is clearly excessive in relation to local benefits (Pike)
3. dormant commerce clause cases deal primarily with 3 commodities
(waste, bait fish, milk)
4. more on discriminatory laws
a. if a law is discriminatory, SC will apply “the strictest scrutiny of
any purported legitimate local purpose and of the absence of
nondiscriminatory alternatives” (Hughes v Oklahoma)
b. simple economic protectionism is never a sufficient local purpose
c. when law is motivated by economic protectionism alone, a per se
rule of invalidity applies (Wyoming v Oklahoma)
5. categorizing state laws
a. sometimes helps to consider the type of burden laws place on
interstate commerce:
i. #1 keeping out of state products and services out: laws that
discriminate against out of state suppliers, their products, or
their services
ii. #2 keeping in state products and services in: laws that
discriminate against out of state buyers
iii. #3 environmental protectionism: laws that seek to preserve
natural resource for in state persons or uses
XVI. #1 keeping out of state products out
a. Baldwin v GAF Seeling: the SC invalidated a NY law that prohibited the sale in
NY of mike bought outside NY below a price set by NY law. This law created too
great a “risk of multiple burdens” (ROMB). If other states passed the same kind of
law, the national market would be fragmented
i. Law facially discriminated against out of state milk producers (NY trying to
extend its’ territory)
1. not legal for NY to do this, high impact for interstate commerce
ii. Purpose and effect of law was economic protectionism – to suppress
competition between the states
iii. ROMB: risk is the SC allows it – other states will do it and it will led to many
problems with interstate commerce
iv. Bottom line: it was unconstitutional, the court uses the per se rule
b. Dean Milk v Madison: the SC invalidated a Madison ordinance that prohibited the
sale of any milk that was not pasteurized within 5 miles of Madison (clearly trying
to give locals a competitive advantage). SC ruled the law discriminated against
interstate commerce even though some people within Wisconsin were
disadvantaged (outside the radius). SC ruled unconstitutional because Madison had
less drastic means available to achieve its goal of ensuring safe milk
 i. City can’t discriminate, even in the exercise of legitimate police power
(public health), if “reasonable nondiscriminatory alternatives” are available
1. general rule: don’t accept states on face value, here they were definitely
trying to protect local producers
ii. SC is usually ok with exceptions to health/safety
1. here is the city was really concerned about safety there were other
options
a. rely on inspectors of other jurisdictions, send their inspectors the
plants and charge Dean for the inspection
iii. SC applies strict scrutiny (clue is the court talks about adequate alternatives)
1. Madison argues they were discriminating against in state and out of
state
a. Court said instead Madison was trying to put itself on an island
c. Hunt v Washington State Apple: NC was concerned over consumer protection so
they required a grading system to classify apples shipped into NC according to the
USDA. Washington already had a better grading system in place. Flaw in NC
system was it was just trying to discriminate against other states
i. SC suspected economic protectionism but accepted stated purpose of
protecting consumers from fraud and deception
ii. SC said a nondiscriminatory alternative was available – allowing Washington
grades
iii. SC used a little of the per se test, made reference to Pike balancing, and strict
scrutiny (combo of tests is common)
d. Granholm v Heald: state law that allow instate wineries to sell wine directly to
instate consumers but limit out of state wineries from doing so discriminate against
interstate commerce in violation of the commerce clause
i. Statute facially discriminated against out of state wineries, they couldn’t ship
wine to Michigan residents but Michigan wineries could
1. SC didn’t accept Michigan’s argument about preventing wine being
shipped to minors, because less discriminatory alternatives are available
a. SC focused on the 2nd prong, are there reasonable alternatives
i. They looked at how other states handle the issue (ie. they
require adults to sign for the shipment)
ii. Case says that the commerce clause trumps the 21st amendment
e. West Lynn Creamery v Healy: SC invalidated a Mass pricing order which
imposed a tax on all milk sold. Most of the milk was produced out of state, but the
entire tax is paid into fund to be distributed to Mass dairy farmers. SC ruled that
the law discriminated against interstate commerce because it benefited the local
producers at the expense of out of staters. The disbursements from the fund
amounted to a subsidy of in state dairy interests
i. Rule: a state may not set up a system under which it subsidizes instate
economic interests at the expense of out of state economic interests
1. State using 2 powers, tax/spend. Tax of producers, spending to
distribute fund to in state producers in a form of a subsidy
a. The problem is that the 2 things by themselves are fine but when
put together it’s unconstitutional
 b. It wouldn’t have been unconstitutional if the tax was put into the
general revenue fund and all of the special interest groups are able
to fight over it including the milk producers
ii. Test used was a combo of per se/strict scrutiny
XVII. #2 keeping in state products in state
a. HP Hood v DuMond: H owned 3 milk receiving stations and sought license to
open one in NY. NY denied the application on grounds that H’s facilities would
reduce the local supply of milk
i. Since the purpose was to exclude it was facially invalid
1. SC finds this due to local protectionism
a. In addition, the SC was concerned about the ROMB with hoarding
of resources
b. The economic unit is the nation; states may not use police powers
to suppress competition
b. Pike v Bruce Church: SC invalidated an AZ law requiring that growers of AZ
cantaloupes pack them in AZ. AZ is trying to protect agriculture and packaging
jobs. SC noted that it would view with particular suspicion state statutes that
required business operations to be performed instate that could more efficiently be
performed out of state
i. SC said that this kind of law is virtually per se illegal, even if it has a
legitimate purpose
1. the language sounds like per se rule but it announces the Pike Balancing
test
a. 2 prongs
i. #1 state benefit
ii. #2 impact on interstate commerce
XVIII. #3 preserving environmental resources for in state use
a. Philadelphia v NJ: SC invalidated a NJ law which prohibited the importation into
NJ of waste that originated or was collected outside NJ. NJ attempted to use health
concerns for support of law. SC said that if simple economic protectionism is
effected by the law, a virtual per se rule applies
i. SC reiterated the rule that state may not give its residents preferred right of
access over out of state residents (NJ was trying to hoard landfill space: SC
said garbage is garbage regardless where it comes from unless there is a
hazardous situation which didn’t exist here)
1. law facially discriminated, effect was discriminatory
ii. SC was also concerned of ROMB, it would be an invitation for every state to
pass law prohibiting importation of trash which would destroy the interstate
market for the sale of it
iii. Bottom line it was unconstitutional
b. Maine v Taylor GOOD FINAL EXAM REVIEW: SC upheld a law that
discriminated on its face against out of staters. Maine prohibited the transfer into
Maine of live baitfish from out of state. SC upheld the ban even though it would
benefit Maine’s baitfish industry
i. SC was persuaded by Maine’s argument that its unique population of wild
fish would be threatened by parasites from out of state fish and that there was
 no less discriminatory means to protect against the importation of the
parasites
ii. Maine’s statute clearly discriminated (facial discrimination since it was 100%
total ban) against out of state baitfish, but for the legitimate purpose to
proven aquatic ecology
1. SC applies strict scrutiny finding there were no nondiscriminatory
alternatives (only example where state wins at strict scrutiny under
dormant commerce clause)
a. SC focuses on 2nd prong of strict scrutiny (narrowly tailored) and
found there were no less restriction alternatives available
c. Minnesota v Clover Leaf Creamery: SC upheld a Minn law that banned
nonreturnable milk containers made of plastic (primary made out of state), but
allowed other nonreturnable milk containers made of pulpwood (primary made in
state). Since the law differentiated between the type of container rather than instate
vs out of state producers, SC found no discrimination
i. Law didn’t discriminate against interstate commerce (ie. an evenhanded
regulation: all plastics were disfavored regardless where produced), so
question was whether incidental burden on interstate commerce was clearly
excessive in relation to its local benefits
1. no alternative with lesser impact on interstate commerce was available
to achieve state’s objectives
ii. Pike balancing
1. clearly natural resource issue on one side
2. impact on interstate commerce was relatively minor
a. thus the state wins (best case example of Pike Balancing where
state wins)
d. CA Carbone v Clarkstown: SC invalidated a local ordinance that required that all
non-recyclable solid waste generated within the town be processed at a local
processing facility (because they were the one who financed building the facility),
at an increased cost because the city guaranteed a minimum waste flow through the
station
i. SC said it discriminated against interstate commerce, and that the town had
less drastic means available to achieve its goals
1. the town was trying to create a monopoly for local protectionism
ii. J. Kennedy applies per se rule for local economic protectionism
iii. J. O’Connor in the concurrence applies Pike balancing and reaches the same
result
iv. United Haulers v Oneida-Herkimer Solid Waste: similar to Clarkstown but
the difference was that here it was municipally owned where Clarkstown was
privately owned
1. majority said that it was constitutional because it was municipally
owned
a. they may be using the market participant exception but not stated
in the opinion
e. Hughes v Oklahoma: SC invalidated an OK ordinance that banned the exportation
for sale outside the state of minnows that were procured within the waters of OK
 (state trying to protect natural resources – there was no regulation for in state). SC
said that it was facial discrimination which invokes strict scrutiny of any purported
legitimate purpose and of the absence of nondiscriminatory alternatives
i. SC overturned Geer that states don’t use their fish and wildlife, but may
regulate to protect ecology
1. they applied the strict scrutiny test, not per se because a valid reason for
protecting the natural resources
a. 1st prong: OK has a compelling reason
b. 2nd prong: it wasn’t narrowly tailored because it wasn’t a total
band, and they didn’t regulate in state
i. thus it was unconstitutional
c. clue for strict scrutiny is if they gave alternatives
ii. Geer case declared states own fish/game therefore it was ok to regulate
1. wild animals are not owned by one state, but the states still have police
power to regulate them (still good law, even though Geer overruled)
f. Sporhase v Nebraska: SC invalidated a NE reciprocity requirement that denied a
permit to withdraw and transport NE water for use in another state unless the other
state granted reciprocal rights to transfer its water into NE (SC declared ground
water was article of commerce)
i. Case illustrates concept of reciprocity requirements (violate dormant
commerce clause because ROMB)
1. reciprocity requirement is a law which allows residents of state B to do
business in state A only if state B grants the same privilege to residents
of state A
XIX. State regulation of tender offers (don’t need to focus on) (still state power to
regulation)
a. CTS Corp v Dynamics: Indiana trying to protect charters from being taken over
by outsiders, court says its ok because corporation chartered in state “creatures of
state government”
XX. Extra-territorial regulation (still state power to regulation)
a. Brown Distillers v NY State Liquor Board: NY trying to project itself over state
lines. NY requires the 8 states around NY distributors to post their prices, then NY
requires their prices to be the lowest
i. SC said it wasn’t legal because NY was trying to project its legislation on
other states
XXI. Regulation of transportation (still state power to regulation)
a. Southern Pacific v Arizona: SC invalidated an AZ law that limited the length of
trains in the state to seventy freight cars (AZ said it was required for safety
reasons). SC said AZ law imposed too great a burden on an aspect of interstate
commerce that is national in scope (interstate rail transportation), and thus required
uniformity in regulations (similar to Cooley for the need for national uniformity)
i. Test used is early form of the (Pike Balancing)
1. 1st prong: are there real benefits (safety)
a. court thinks this isn’t true (fewer longer trains offers no benefit)
2. 2ns prong: impact to interstate commerce
 a. impact was significant because railroad companies have to break
trains up
ii. bottom line it was unconstitutional
b. Kassel v Consolidated Freightway: SC invalidated an Iowa law that prohibited 65
ft double trailers from operating in the state. The SC alluded to the strong
presumption in favor of state highway regulations, but said that Iowa failed to
present any persuasive evidence that 65 ft trailers are any more dangerous than 55
ft single trailers
i. Statute didn’t facially discriminate
1. state said purpose of law was highway safety
a. court normally defers to legislative judgment
b. claimed purpose must not be illusory
c. here the state acknowledged that it wanted to divert truck traffic
around the state
2. burden was big because most states allows 65 ft so interstate truckers
have to break up truckers or avoid Iowa
a. there were exceptions to the law
i. livestock/agriculture inside of the state are allowed to use
60 ft
1. this looks to the court that the state is giving
themselves an advantage
ii. border cities exemption allows truckers into border cities to
by 65 ft
1. court said they aren’t concerned with safety here,
but it just benefits the cities
ii. Test used is Pike Balancing
1. it was unconstitutional because there was too much burden on interstate
commerce
c. Bibb v Navajo Freight: SC invalidated law that required special mudguards to be
welded on all trucks operating within the state. The law caused long delays for
trucks entering Illinois from other states
i. Illinois said it was for safety but there was no evidence of this and
manufacturer was located in Illinois (protects law company)
1. there was a ROMB if the law was upheld other states could pass similar
laws and cause bug burden on interstate commerce
XXII. State as a Market Participant (exception to the dormant commerce clause) (still
state power to regulation)
a. When state acts as a market participant and not as a regulator, dormant commerce
clause doesn’t apply
i. state may favor in state interests over out of state interests
ii. when the state acts as a market participant, rather than a market regulator, it
may discriminate against out of staters for any reason, including local
economic advantage, and be immune from a dormant commerce clause
analysis
b. since verb in commerce clause is “to regulate” when state uses another the
dormant clause doesn’t apply and it allows the state to discriminate about out of
staters
c. a state is a market regulator when it acts in its sovereign capacity to regulate what
other parties can do within their contractual relationships
d. critical issues
i. regulator vs market participant
ii. what market is the state participating in?
iii. other constitutional limitations still apply (ie. equal protection,
privilege/immunity clause)
e. Hughes a Alexandria Scrap: state paid a “bounty” for abandoned autos into scrap.
Out of state processors had to provide more proof of title than in state processors.
Out of state processors claimed disproportionate burden violated the commerce
clause
i. SC upheld the different requirements because the state had entered the auto
salvage market, and could discriminate against out of staters if it chose to
ii. Analysis
1. state was a market participant, not a regulator
2. state had essentially entered the market to “bid” for abandoned vehicles
3. when state acts not as regulator but as market participant, state may
favor its own citizens
a. “nothing in…the commerce clause prohibits a state…from
participating in the market and…favoring its own citizens”
f. Reeves v Stake: SC upheld a SD policy of preferring in state buyers of cement
produced at a state-owned cement plant. As a result of a cement shortage SD built
and operated a cement plant. SD sold to both in and out of state. During a cement
shortage SD decided to sell cement to in staters first and out of staters getting
anything left
i. SC ruled SD was a market participant its preference for instaters was not
subject to a dormant commerce clause challenge
ii. Analysis (it was facially discriminatory, court said not dormant commerce
clause before SD was using their spending power, since they own the plant
and it was operating as a private business
1. court reaffirmed Hughes market participant exception
2. when states act as proprietors, should enjoy the same freedoms as other
market actors
3. state acting as cement seller is clearly a market actor, even more so than
state as scrap dealer
4. cement is product of complex manufacturing process and not a natural
resource
a. therefore it was constitutional
g. Limitations to market participation exception
i. A state will be treated as a market participant as long as it is making purchase
or sales decisions in relation to a contract to which it is a party
 1. as soon as it tries to control the terms of a contract to which it is not a
party, it is acting as a market regulator and the dormant commerce
clause will restrict its actions
ii. South Central Timber v Wunnicke: a plurality found Alaska was not acting as
a market participant when it sold state owned timber to buyers, but required
as part of the contract that the timber be processed in the state before it could
be shipped out of state
1. the problem was that Alaska was trying to control a market transaction
by regulating the shipment (in state processing) that occurred
subsequent to the initial sale of timber by the state
2. market participant allows state to influence a discrete and identifiable
class of activity in which in participates
a. then but cannot, under the doctrine, then regulate beyond that
XXIII. Other limits on state power (still state power to regulation)
a. Main concept: the constitution places several other express and implied
limitations on state power, including:
i. Interstate privileges and immunities: limits the ability of a state to
discriminate against out of staters
1. under article 4, section 2, clause 1
2. one state may not discriminate against citizens of another state in regard
to
a. exercise of basic rights like:
i. access to courts (equal to resident/non-resident)
ii. buying/selling property
iii. interstate travel
iv. certain economic activities, such as employment or
pursuing a trade or business (no discrimination against out of
staters)
3. applies to citizens, narrower than persons
4. don’t confuse 14th amendment
5. 1st question to ask: is there a basic right being affected
ii. Limits on impairing contracts: hibernating
1. can’t impair obligation of existing contracts
2. article 1, section 10, clause 1
3. prohibits state from impairing obligations of contracts
4. historically, the importance of Contract Clause has waxed and waned
a. in 19th century, utilized to strike state law impairing individual
rights
b. since early 20th century, not much attention
iii. added to dormant commerce clause and taking clause of the 5th amendment
b. states can’t discriminate for rights they give their citizens but deny out of state
people
XXIV. Privileges and Immunities
a. Text of article 4, section 2, clause 1: “the citizens of each state shall be entitled to
all privileges and immunities of citizens in the several states”
b. Standard – intermediate scrutiny (this standard is only used for
privilege/immunity and contract clause sections)
i. Discrimination permitted only if substantially related to achieving an
important or significant state interest
1. it has to substantially fit
ii. This is between strict scrutiny and rationale basis
c. General rule privilege/immunity prohibits a state from denying to out of staters
privileges that it grants to its own citizens
i. This clause only protects individuals, not corporations, and applies only when
a state is discriminating against out of staters in relation to the exercise of a
basic or fundamental right
d. Analysis (2 steps)
i. (1) does the state burden a protected privilege or immunity?
1. Seems to be applied in 2 circumstances:
a. 1st states discriminating against out of staters in regard to
constitutional and other important rights
b. 2nd states discriminating against out of staters regarding right to
work or earn a livelihood
c. does not apply to recreational pursuits (ie. elk hunting in Baldwin)
ii. (2) can the state justify the discrimination?
1. State may justify discrimination by showing (from Lunding v NY Tax
Appeals Tribunal)
a. First, there is a substantial (or important or significant) reasn for
the unequal treatment
b. Second, the discrimination is substantially related to achieving the
state’s purpose
e. United Building and Construction Trade Council v Camden: SC upheld that
privileges/immunities clause is available as a challenge to a municipal ordinance
that set aside a certain % of jobs on city-funded construction projects for city
residents (Camden is trying to preserve construction jobs for residents)
i. Camden acting as a market participant because building public infrastructure
using Camden tax dollars
1. thus as a market participant they can discriminate for using Camden
residents to get around the dormant commerce clause, the but problem is
the privilege/immunities
ii. analysis
1. step 1: does the state burden a protected privilege or immunity?
a. Yes, people are being discriminated against by not being able to
pursue employment
2. step 2: can the state justify the discrimination?
a. Here the problem was a 40% in city hiring requirement and will it
curtail unemployment
b. The SC doesn’t know where the 40% comes from, so they can’t
answer if it passes immediate scrutiny and it is remanded back
iii. Take away: market participation doesn’t work as a free pass to
privilege/immunity
 1. market participation only works for to get around the dormant
commerce clause
f. Notes regarding privileges and immunities
i. Privileges and immunities applies not only to states, but to political
subdivisions of states
ii. Privileges and immunities applies only to basic or fundamental rights and not
recreational interests
iii. Limited to natural persons who are citizens
iv. Wider reach than dormant commerce clause because no similar exceptions
(ie. market participant)
XXV. Contract Clause
a. Article 1, section 10, clause 1: “No state shall…pass any…law impairing the
obligation of contracts…”
b. Analysis (if a state passes a law which impairs the obligations of an existing
contract, the court uses a 3-part test to determine the constitutionality of the law):
i. Has the law substantially impaired an obligation of an existing contract
ii. Does the government have a significant and legitimate reason for the
impairment, and
iii. Is the law based on reasonable conditions and is it appropriate to the public
purpose underlying the law
1. professor’s analysis is found below in Allied Steel
c. Home Building & Loan Association v Blaisdell: state law extended mortgage
redemption period
i. In upholding the law, the SC found 5 factors significant (Blaisdell factors) to
apply immediate scrutiny
1. there was an emergency need “to protect the vital interest of the
community”
2. the law was not designed to favor a special group “but for the protection
of a basic interest of society”
3. the relief was appropriately tailored to the emergency
4. the conditions imposed were reasonable
5. the legislation was “temporary in operation” and “limited to the
exigency which called it forth”
ii. exam: the big 3 of the factors are (only need these)
1. was it widespread
2. solution reasonably related
3. was it temporary or permanent
d. Allied Structural Steel v Spannaus: Minn changed the vesting period for voluntary
retirement programs. It caused a significant impairment on existing contracts
which was caused by the state because it required the Allied to put more money
into the fund
i. Court resolved using the 5 factors from Blaisdell (big 3), and found it
impermissible
1. not widespread
2. temporary/permanent – here it was permanent
3. not clause to being reasonably related
 ii. analysis
1. first inquiry was whether state law had substantially impaired the
contract obligations
a. minimal alternation may end the inquiry
b. more severe alternation will prompt a “careful examination of the
nature and purpose of the state legislation”
c. the effect of this law was severe: substantially changed contract
term and imposed unexpected financial liability
2. second inquiry was whether alternation was necessary to meet an
important general social problem
a. legislation here had narrow focus, not intended to protect a broad
social interest
b. application of the Blaisdell factors: law did not possess attributes
of those that have withstood Contract Clause challenge:
i. (1) did not deal with broad social problem
ii. (2) not an area already subject to state regulation
iii. (3) not a temporary alternation of contractual relationships
XXVI. Commerce Analysis (commerce clause and dormant commerce clause)
a. 1st question: who is acting
i. if Congress – commerce clause analysis
ii. if Congress not acting and the states are – possible a dormant commerce
clause
1. are states restricting
iii. if both are acting – preemption issue
1. saving clause – when federal statue specifically allows states to act
b. if in dormant commerce clause
i. what is the nature of the state regulation: is state regulation facially
discriminatory against out of staters, thus giving the in state residents a
competitive advantage
ii. tests
1. per se- state loses 100% of the time
2. strict scrutiny
3. if state regulation is not facially discriminatory
a. evenhanded treating both in/out of state the same, then apply pike
balancing
4. Exam: if think it is facially discriminatory talk about both per se/strict
scrutiny, if doesn’t discriminate on face Pike Balancing
c. if dormant commerce clause (flow chart)
i. #1: initial question: does state law affect interstate commerce?
1. if no, exit
2. if yes, move to #2
ii. #2: critical issue: is the state regulation facially discriminatory? (in-staters vs
out of staters)
1. if yes, move to #3
2. if no, apply Pike Balancing (#3)
iii. #3: test: Pike balancing
 1. burden on interstate commerce vs. importance of local issue
a. Reach conclusion: state law is generally valid
iv. #3: identify purpose:
1. economic protection, if yes apply per se test
2. strict scrutiny
v. #4: tests:
1. per se test: reach conclusion: state law invalid
2. strict scrutiny (use 2 prongs)
a. #1 compelling interest (ie. public health/safety)
b. #2 narrowly tailored means (the approach/solution that is being
applied)
i. if yes to both: reach conclusion state law
th
XXVII. 11 Amendment and the abstention doctrine
a. General information
i. Federal courts will abstain from exercising jurisdiction, for both prudential
and constitutional reasons (both Pullman and Younger based on Federalism:
federal courts defer to state courts)
1. Pullman abstention: federal courts abstain from exercising jurisdiction
where resolution of a constitutional issue turns on an unsettled question
of state law
2. Younger abstention: federal courts abstain from issuing injunctive relief
in regard to pending state court criminal proceeding
3. in both abstentions federal court will not allow criminal Ds to jump to
federal court, instead will require them to finish in state court prior to
moving to federal court
a. the federal court could hear the case but chose not to
ii. The 11th amendment limits the ability of federal courts to hear cases in which
an individual sues a state
b. Abstention (general information)
i. The abstention doctrine deals with the relationship between the federal and
state court systems
ii. An abstention issue arises when a federal court has jurisdiction to hear a case,
because a federal question is present, but declines to do so out of respect for
state courts
iii. It is an example of judicially-imposed limitation on the exercise of federal
judicial power
c. Pullman abstention
i. Railroad Commission of Texas v Pullman: RRs filed suit in federal court
challenging order of the Commish that all sleeping cars in TX be under the
control of a Pullman conductor (white) instead of a porter (black) claiming
the order violated their equal protection rights. Federal DC heard the case
and decided the Commish not authorized by TX law. SC reversed and
remanded saying federal DC should have abstained on TX state law question
and allow TX to decide issue
1. the case was originally filed in federal DC because Pullman felt less of a
home cooking TX bias
 2. issue was did TX law give the Commish power to make the order? The
statute was unclear
a. the final word on the meaning of the law “belongs…to SC of TX”
b. concern is if the SC makes a decision (tentative answer) on the
law of TX it could be supplanted by a state court decision
c. abstention is discretionary, and review is subject to abuse of
discretion standard
ii. Pullman arises when
1. a lawsuit is filed in federal court
2. the case involves issues both of federal and state law, and
3. the issue of state law is ambiguous, uncertain, or unsettled
iii. Procedure
1. some states allow certified questions
2. otherwise, P must litigate state law matter in state court
a. may choose to litigate all issues, state and federal, in state court
and then seek review of final state court decision by SC, or
3. may reserve federal issues and return to federal court after litigation of
state issue is completed in state court
d. Younger abstention
i. Younger v Harris: Harris inducted in Cali state court charged with free
speech violation. Harris moved to enjoin prosecution
ii. Under Younger, abstention in its classic form, arises when a D in a pending
state criminal proceeding files a lawsuit in federal court seeking to enjoin the
pending state criminal proceeding
iii. general rule: a federal DC will not enjoin a pending state criminal proceeding
unless the prosecution is brought for purposes of bad faith or harassment
1. theory: the state has the best knowledge of state criminal law, and it
would open the floodgates and allow state criminals into the federal
courts to challenge their charges
iv. Exceptions when they can jump directly to federal court (criteria for federal
court action where the federal court may choose not to abstain, even if there
is a pending state criminal proceeding, if there is serious danger to the rights
of the state criminal D
1. to obtain federal injunctive relief, P must show
a. first, a pending or threatened criminal prosecution
b. second, must show bad faith, harassment, or other unusual
circumstances, or relief on its face is unconstitutional (this facially
unconstitutionality doesn’t bar good faith efforts to enforce), or
the statute expressly authorizes it
2. if there is no exception the federal court will kick it back to state court
e. Contrast Pullman/Younger
i. In Pullman, the federal court stays its own proceedings to allow state court
action on state law issues
ii. In Younger, P seeks to force stay of state proceedings for federal
intervention, and generally the federal court refuses to intervene out of
respect to the state courts
 iii. Issue is where does the lawsuit start
1. inadequate state grounds – starts in state court
2. Pullman – lawsuit starts in federal court, then issue of state law
th
f. 11 amendment
i. main concept: the 11th amendment bars suit against a state in federal court by
citizens of that state, and by citizens of other states and foreign countries
ii. limitations
1. suits by federal government and other states not prohibited
2. states can waive immunity (and be sued in federal court), but rarely do
iii. history
1. Chisholm v Georgia: 11th amendment came as a result of this case, it
clearly states that non-residents can’t sue states in federal court and this
was designed to fix the result of the Chisholm case
2. this means that some types of suits against state must initially be
brought in state court, rather than federal court, unless state waives 11th
amendment immunity
3. two versions of the 11th amendment: as written and as understood and
interpreted by the court
a. Hans v Louisiana: (example of the court interpreting it) court said
that the 11th amendment prohibited suing a state by a resident of
that same state (even though not what the 11th amendment says)
4. Based on sovereign immunity and understanding of Framers at time
constitution was drafted
a. 11th amendment doesn’t apply to federal government – federal
agency can sue a state to enforce a federal statute
b. a state can waive its 11th amendment immunity by a clear and
unequivocal statement and consent to be sued in federal court, but
this doesn’t happen often
iv. Congress can abrogate (means same thing as waive state government
immunity) state’s 11th amendment immunity by (4 factors, typically seen in
civil rights cases):
1. a clear expression of intent to waive immunity
a. easiest way it to include in the statute that the state can be sued
2. pursuant to a proper power source (ie §5 of the 14th amendment, this is
the only power source – not commerce clause from Seminole Tribe
case)
3. congruence with the factual record of state violations of civil rights
a. they have to document widespread violations of civil rights
4. proportionality in the remedy provided
v. is it the state?
1. 11th amendment protects states, and members of state government from
being sued in their official capacity (ie. it would be suing them in
federal court)
a. political subdivisions aren’t covered (language states “only
states”)
 b. may be able to sue someone in their individual capacity (ex parte
young) for prospective injunctive relief
2. official vs individual capacity
a. individual capacity lawsuit seeks to impose individual liability
upon state officer for actions taken in official capacity, under
color of state law
b. suit not barred because officer acted in official capacity
c. but if suit would lead to monetary relief against state directly
(other than through indemnification) then 11th amendment
prohibits
3. if suing state/named official then generally won’t be able to sue them in
federal court
a. but if sue them as an individual it remains immunity
b. under Young, only prospective, not retroactive
vi. Suits permitted (against state officers for prospective relief)
1. Ex Parte Young: statute that authorizes enforcement of RR rates. It was
a regulatory taking case, RR arguing Minn set rats so low they cant turn
profit and thus profits were taken. Young said he was acting in his
official capacity
a. state officers having duty to enforce state laws, and who do so or
threatened to do so in violation of constitution, may be enjoined
by federal court
i. officer is simply restrained from doing an act he has no
legal right to do so
ii. if state officer attempts to enforce an unconstitutional law,
the officer is stripped of official character and is subject to the
consequences of his conduct (state cannot immunize the officer
in such cases)
1. “authority stripping” once he is stripped of his
official capacity and loses immunity then can go after
him as an individual
2. he is outside of official capacity because he is trying
to enforce unconstitutional law, thus he loses his shield
iii. think of sovereign immunity as a shield (have to be acting
within lawful authority)
b. Young creates a legal fiction that there is a meaningful distinction
between the state and its officers, even though when a state officer
is sued to prevent enforcement, the state is the real party in
interest
i. The legal fiction is suing a state official in their capacity
c. The only remedy under Young is prospective injunctive relief
d. Rules: who to get around the 11th amendment bar to the exercise
of federal court jurisdiction when an individual sues a state
i. Name the state officer as an individual, not as an officer of
the state
 ii. Allege that the state officer acted outside the scope of his
authority by violating your rights
iii. Allege that the state officer violated your federal rights
2. important limitations
a. no retroactive money damages
i. a P cannot receive any retroactive money damages from the
state
1. theory that it could bankrupt state by a federal court
order (and create unbalanced state budgets)
b. state may not be held responsible for past monetary damages even
if a state officer is sued for prospective relief
c. Prospective injunctive relief permissible
i. Prospective injunctive relief is permissible to force a state
official to comply with federal law in the future
ii. Edelman v Jordan: a P sued a state official, arguing that
welfare benefits were withheld in violation of federal
regulations (lawsuit starts under Young theory, because state
officials not processing claims in timely manner). The P
requested retroactive money damages, and prospective
injunctive order compelling state officials to pay him the correct
amount in the future
1. the SC denied the request for retroactive damages,
but granted the injunction, despite the fact that the state
would have to pay more money in the future by way of
increased welfare payments
2. prospective relief – an order requiring timely
payment of future benefits – was permitted, even
though the funds would come from the state treasury
3. retroactive – the award of wrongfully withheld past
benefits was a damage award payable from the state
treasury, and was barred by the 11th amendment
3. where the state waives sovereign immunity (express waiver)
a. waiver must be stated in express language or be found by
overwhelming implication from statutory text leaving no room for
any other reasonable construction (Edelman)
b. general waiver – ie consenting to suit in “any court of competent
jurisdiction” is not enough (Kennecoot Copper Corp)
vii. Where Congress authorizes suit (Abrogation)
1. Congress may not abrogate a state’s 11th amendment immunity by
acting under the commerce clause
2. Seminole Tribe v Florida: Tribe filed suit when FL failed to negotiate
their compact in good faith under IGRA. When lawsuit was filed FL
moves for immunity. SC invalidated the provision of IGRA that
allowed tribes to sue states in federal court to enforce IGRA.
a. Case gives the 1st requirement of abrogation
 i. 1st requirement: congress must express its intent to abrogate
state immunity by a “clear legislative statement”
1. here congress names the states as parties that can be
sued
ii. 2nd requirement: congress must act pursuant to a valid
exercise of power
1. section 5 of the 14th amendment allows congress to
abrogate state immunity
2. congress used the Indian commerce clause
a. SC ruled that only section 5 of the 14th is the
only constitutional provision under which
Congress may unilaterally abrogate a state’s
11th amendment immunity from suit in federal
court
b. The commerce clause doesn’t work (this
overrules PA v Union Gas which the SC
decided 6 years earlier but the justices changed)
b. Bottom line of the analysis: there was a clear intent by the state
saying they can be sued in US DC, but there wasn’t a valid power
source because they used the Indian commerce clause, no the 14th
amendment
i. Fitzpatrick case: section 5 of 14th is a valid power source to
abrogate states’ 11th amendment immunity because the states
voted to ratify the 14th amendment and thus waived their
immunity for civil rights
3. Congress may not abrogate a state’s 11th amendment immunity by
acting under section 5 of the 14th amendment if it has no underlying
constitutional power to do so
a. Bd of Trustees of U. of Ala v Garrett: G filed discrimination suit
under title 1 of the ADA which prohibits states from
discriminating on bases of disability
i. SC imposed 2 more requirements for abrogation (see
above)
1. record of widespread pattern of discrimination
(congruence)
2. remedy provided must be proportional to damages
ii. Congress in passing the ADA didn’t identify a pattern of
discrimination, thus section 5 of 14th did not apply and Congress
didn’t have a valid power source to abrogate the state’s
immunity under title 1
1. congress must document wide-spread violations of
civil rights by states to justify abrogating state 11th
amendment immunity
b. NV Dep’t of Human Resources v Hibbs: father of newborn wants
to take time off to spend time with his family. He was told to
 come back at a certain time and didn’t, and was fired. He brought
suit under Family and Medical Leave Act
i. SC reasoned that congress both clearly stated its intention
to abrogate states’ immunity and acted within its authority
under section 5 of 14th amendment
1. remedy was retroactive pay and reinstatement of his
job
a. monetary damages are allowed where there
is abrogation (must be proportional)
2. this is the 1st time where state loses and statute is
upheld
c. Tennessee v Lane: Lane was paralyzed and brought suit under
title 2 of ADA because his criminal trial was on the second floor
of the court house and it wasn’t handicap accessible, so he was
unable to attend and help in his own defense
i. SC looked at the 4 factors and it passed all of them
1. yes there was abrogation, thus Tenn is subject to
both monetary and injunction penalties
ii. SC focuses on the fundamental right to assist in your own
defense at trial, because this is a fundamental constitutional
right the standard is raised to strict scrutiny
XXVIII. Limitations on Judicial power and review (Justiciability Doctrines)
(printed through here)
a. General
i. Main concept: the justiciability doctrines are related to the prohibition against
federal courts giving advisory opinions. This prohibition, in turn, is derived
from the article III “case or controversy” requirement
1. standing: is this the proper party to litigate?
2. ripeness: is judicial review premature?
3. mootness: does an actual controversy still exist?
b. Advisory opinions
i. Fundamental limit on article III judicial power
ii. Federal courts cannot provide
iii. Some state constitutions allow state courts to provide (ie. Michigan)
iv. Not an advisory opinion if
1. there is an actual dispute between 2 or more adverse litigants, and
2. there is a substantial likelihood that a decision will bring about some
change or have an effect
c. standing
i. question is this the proper party to bring this case?
ii. Requirements:
1. constitutional
a. P has suffered or will imminently suffer an injury
b. Injury was caused by D’s conduct
c. Favorable decision will redress the injury
d. Likelihood of injury is immediate and not speculative
 2. prudential
a. generally, P can only assert P’s rights
i. limited exceptions for 3rd party standing
b. no suits by taxpayers or citizens for “generalized grievances”
i. very narrow exception for expenditures in religion clauses
cases
c. if suing a federal agency, claim must be within the zone of
interests protected by the statute or regulation in question
d. ripeness
i. overlap with standing
ii. question: has there been an injury yet?
iii. Generally concerned with pre-enforcement review of a statute or regulation
iv. 2-factors – Abbott Labs
1. hardship to the parties if review is denied – “costly dilemma”
2. fitness of the issues for judicial review – issues are primarily question of
law, not fact
e. mootness
i. question: does an actual controversy exist at all stages of the proceedings?
ii. Events after filing may dispose of controversy
iii. Exceptions to mootness
1. capable of repetition yet evading review
2. class actions
XXIX. Advisory Opinions
a. Article III judicial power is limited to “cases” or “controversies”
b. An advisory opinion is an opinion requested by an executive official, or by a
legislature, asking a court to rule on the constitutionality of some proposed
government action before the law has been applied to anyone
i. There is no party who has been adversely affected by the law, so the opinion
is merely advisory in nature
ii. Advisory opinions are not within the article III definition of a “case or
controversy” so federal courts may not issue such opinions
c. Not an advisory opinion if there is
i. An actual dispute between adverse litigants
1. examples of lack of dispute:
a. no actual dispute if parties collude to bring litigation
b. if no standing because no injury fairly attributable to D’s conduct,
then no dispute to be resolved
c. if the case is moot because parties have resolved, (ie. settlement,
no actual dispute remains)
XXX. Standing
a. Standing has to do with whether the proper party is seeking to raise an issue in
federal court
i. For the P, the question is whether he is able to invoke the jurisdiction of a
court to hear a case
 ii. For the D, who is already in court, the question is whether he can raise an
issue as part of a defense (ie: does D in a crim case have standing to object to
the introduction of evidence that was allegedly illegally seized?)
iii. Constitutional aspects of standing (there are 2 requirements of standing that
must always be met to satisfy the “case or controversy” requirement of article
IIII)
1. injury-in-fact
a. the would be litigant must have suffered, or be imminently
threatened with suffering, an injury in fact as a result of the D’s
action
i. in constitutional cases (because of the fact that the
government is the D), this means that a government agent or
entity must be the cause of the actual or threatened injury
b. injury must be personally suffered by P
i. can include “noneconomic” injuries
1. a non-economic injury may qualify to confer
standing if the injury is specific to the P
a. if P is adversely affected by a gov’t action,
the injury asserted may be to an environmental,
religious, or other non-economic interest
2. US v Students Challenging Regulatory Agency
Procedures: damage to “recreational interests” was
sufficient injury
3. Friends of the Earth v Laidlaw Environmental
Services: P state sufficient injury by alleging pollution
damages to areas they used
c. Injury can be based upon
i. Violation of constitutional rights
1. Hecker v Matthews: gender based discrimination in
violation of equal protection clause sufficient injury;
remedy is mandate of equal treatment
2. Flast v Cohen: taxpayers had standing to challenge
federal expenditures for religious schools allegedly in
violation of establishment clause
ii. Violation of statutory rights
1. “Congress may create a statutory right which can
confer standing to sue even where the P would have
suffered no judicially cognizable injury in the absence
of a statute” Warth v Seldin
2. particularly common in “citizen suit” provisions for
enforcement of environmental and voting right laws
2. traceability/redressability
a. the injury-in-fact must be fairly traceable to the government action
complained of
i. in other words, the court must be able to issue a decree
which will directly redress the injury asserted by the P
 b. redressability requirement
i. the injury P has suffered or will suffer must be “likely to be
redressed by the requested relief.” Allen
ii. causation and redressability are closely related
1. if a D has caused or will cause an injury, relief
against that D is likely to redress the injury
2. but the two requirements are, in fact, separate
c. cases illustrating failure of redressability
i. in Allen the SC seemed very skeptical, that even if the IRS
was ordered to do what Ps requested, desegregated schools
would result
ii. City of LA v Lyons: said that injury from past choke hold
would not be redressed by injunction prohibiting future choke
holds
d. Causation requirement
i. Must show that injury was or will be “fairly traceable to the
D’s allegedly unlawful conduct” Allen
iv. Prudential aspects of standing
1. in addition to the constitutional requirements for standing there are also
judge-made, “prudential” barriers to standing
a. these barriers reflect institutional concerns such as docket control
and judicial insistence on the parties having a personal stake in the
outcome of the controversy
b. two examples of judge-made prudential barriers to standing are
the bar to a federal taxpayer challenging a spending measure by
Congress, and the bar to 3rd-party standing
2. P may only assert P’s rights – 3rd party standing generally prohibited –
exception – close relationship and 3rd party unable to sue
3. no generalized grievances
a. historically articulated as a prudential concern, but post-Lujan
might be a constitutional requirement
4. claim must be within zone of interests law was intended to protect
b. Allen v Wright: parents of black school children challenged federal tax
exemptions for racially discriminatory private schools. SC found the circumstances
involved in this case didn’t warrant federal court adjudication
i. The injuries was “fairly traceable to the asserted unlawful conduct of the
IRS”
ii. Analysis
1. standing embraces several “judicially self-imposed” (sometimes called
prudential) limits
a. litigant may not raise another person’s rights
b. no adjudication of generalized grievances
c. complaint must fall within the zone of interests protected by law
invoked
2. standing also has “a core component derived directly from the
constitution” – sometimes called constitutional limits
 3. constitutional limits
a. must be a personal injury (injury)
b. injury must be fairly traceable to the D’s allegedly unlawful
conduct (causation)
c. must be likely that injury will be redressed by the requested relief
(redressability)
4. standing failed on causation and redressabililty – parents suing wrong
parties – the IRS – and SC couldn’t fashion a remedy
c. Taxpayer standing
i. First, be careful about whether a federal taxpayer is challenging a tax, or is
challenging a spending measure
1. a federal taxpayer has standing to challenge an incorrect tax bill, or to
attempt to recover taxes paid under protest
ii. no generalized grievances
1. generally, applies to prohibit citizen or taxpayer suits based upon a
generally held constitutional or statutory right
2. Frothingham v Mellon: the general rule is that federal taxpayers don’t
have standing to challenge expenditures of money by Congress
a. The reason for this rule is that the interest of any one federal
taxpayer in how congress spends money is too remote and
speculative to qualify as the specific injury in fact required for
standing
b. SC said no standing: P “must be able to show…that he has
sustained or is immediately in danger of sustaining some direct
injury…and not merely that he suffers in some indefinite way in
common with people generally
c. Limitation on taxpayer suits does not apply to municipal taxpayers
i. But the municipal exception doesn’t apply to state
taxpayers, who must show direct injury ASARCO v Kadish
iii. Flast v Cohen: federal taxpayers challenged federal expenditures for religious
schools. The SC reasoned that the establishment clause is a specific
limitation on the taxing and spending powers of Congress
1. SC ruled that a federal taxpayer does have standing to challenge a
congressional expenditure on the basis that it violates the establishment
clause of the 1st amendment
a. SC has consistently refused to extend Flast, appears to be limited
to article 1, section 8 expenditures alleged to violate religious
clauses
i. 3 elements must be shown
1. congress is acting
2. under the spending power
3. to establish religion
a. if all 3 then there is standing
2. Valley Forge Christian College v Americans United for Separation of
Church and State: Flast distinguished: this was not an expenditure but a
 disposition of property, and it was not a congressional action but an
agency action
a. A federal taxpayer will not have standing based on that status
unless he is challenging an exercise of the spending power by
congress
d. Congressional power to create standing (zone of interest)
i. Congress does have power to confer standing on parties who meet the article
III injury in fact requirement, and who are within the zone of interests to be
protected by the statute or constitutional provision in question
ii. Association of Data Processing v Camp: the “zone of interests” language is a
term of art which applies only to congressional grants of standing
1. the interest protected by congress are not only economic ones; aesthetic,
recreational, conservational, or religious values may also be protected
iii. state courts are not bound by article III standing rules
1. this means that a litigant might have standing to seek constitutional
review in state court of a matter where there would be no standing in
federal court
iv. Lujan v Defenders of Wildlife: issue was whether Congress could convert
public interest in proper administration of laws into an individual right that
would permit all citizens or a subgroup of citizens who suffered “no
distinctive concrete harm” to sue
1. Scalia said to do so would violate separation of powers, transferring
from president to courts to duty to execute the laws
2. congress may broaden the categories of existing injuries that will
support standing
a. but congress cannot create an injury where none has been
personally suffered
i. “the party seeking review must himself have suffered an
injury” Sierra Club v Morton
3. likelihood of injury must be immediate, can’t be speculative or too far
off in future
4. general citizen standing
a. a person will not have standing to challenge a government action
solely because he is a citizen who is unhappy about how the
government is functioning
XXXI. Mootness
a. An actual controversy must exist at all stages of the litigation
i. If events after the litigation begins resolve the controversy, the case is moot
and should be dismissed
ii. Mootness can be raised at any point in proceedings, either by a party or by
the court on its own
b. Under the mootness doctrine, an article III case or controversy must exist
throughout the entire litigation process
i. If the P’s injury in fact ever goes away, the case will be dismissed as moot
because there is nothing more the court can do for the P
 c. DeFunis v Odegaard: white law student challenged U of Wash’s affirmative
action admissions program as a violation of his equal protection rights
i. His asserted injury in fact was his failure to be admitted to law school,
however during the suit a state court ordered him admitted
1. when the case got to the SC, he had registered for his final term of law
school
a. since the only asserted injury, failure to be admitted, had been
taken care of the SC dismissed his case as moot
d. theory underlying the mootness doctrine
i. the idea here is that a federal court will exercise its jurisdiction only if it is
able to provide relief to a litigant in a contested lawsuit
e. exceptions to the mootness doctrine (3 main exceptions)
i. capable of repetition, yet evading review
1. applies where the facts are likely to change within the time required for
litigation to be completed
2. classic example is pregnancy Roe v Wade
3. note that “capable of repetition” means as to this P, not just as to some
other person
4. under this exception, a court will not declare a dispute moot if the
controversy is capable of repetition, yet evading review, in relation to
the P or a member of his certified class
ii. voluntary cessation of illegal activity
1. only applies if it can be said there is “no reasonable expectation that the
wrong will be repeated” US v WT Grant
2. voluntary cessation of illegal activity by the alleged wrongdoer is
usually insufficient to make a case moot
iii. collateral consequences
1. a claim is not moot if some collateral consequences of court action will
continue even though the main issue has been resolved
f. class action lawsuits
i. case is not mooted because names P’s claim is mooted US Parole Commish v
Geraghty
ii. in addition, if class certification is denied, name P retains a sufficient
personal stake in class certification to continue case even after named P’s
claim is resolved
iii. other members of class or would-be class have ongoing personal interest as
well
XXXII. Ripeness
a. Ripeness is concerned with the timing of the injury – when is lawsuit appropriate
i. Standing: concern is whether any injury has occurred, if no injury, no
standing
ii. Ripeness asks whether an injury which would be sufficient to support
standing has occurred yet
1. if injury has not yet occurred, could say no injury so no standing
2. or could say the matter is not yet ripe
 iii. the main question in the area of ripeness is whether anyone has suffered
actual or threatened harm by the application of a statute
1. if there is no one who has suffered an actual injury, or a specific threat
of injury, the case will not be ripe for decision
b. most often arises in cases involving enforcement of statutes or regulations
i. statute or regulation has not been enforced, but there is a chance it will be
ii. question is when a person may seek pre-enforcement review of the statute or
regulation
iii. general rule is that pre-enforcement review is disfavored
c. United Public Workers v Mitchell: the SC refused, to hear a challenge by federal
civil service employees to the Hatch Act, which prohibited federal executive branch
employees from participating in political campaigns
i. since none of the employees (save one, whose case was accepted) had
actually suffered any injury other than a subjective “chilling effect on their
speech,” the SC refused to hear the case, asserting that to do so would be
equal to issuing an advisory opinion
ii. analysis
1. seeking what amounts to an advisory opinion
2. threat of possible interference with rights does not make a justiciable
case or controversy
3. court may decide constitutionality when litigant’s rights require
protection against actual interference
a. court could only speculate as to kinds of activities that might be
engaged in
b. a separation of powers issue
d. first amendment claims
i. court has historically allowed pre-enforcement challenges to laws regulating
speech activities
ii. laws may have a chilling effect on speech
iii. person may raise a facial challenge to a speech regulation prior to prosecution
e. criteria for ripeness
i. Abbott Labs v Gardner: articulated 2 criteria
1. hardship to the parties if pre-enforcement review is denied – seems tied
to constitutional injury requirement – called a “costly dilemma”
a. issue here is usually the hardship caused by forcing a choice
between potential prosecution vs engaging in activity that may be
lawful
2. fitness of the issues for judicial decision – seems more like a prudential
consideration
a. if issues are primarily legal and can be resolved without much
factual record, ripeness more likely satisfied
XXXIII. State Action
a. General information (the fats are very important in these cases)
i. Main concept: generally, state action – some action by the state or a person
acting for or as the state – is a prerequisite to constitutional liability. The
Constitution does not apply to private conduct
 1. how you go after private actors because of their close relationship with
state (state, federal, local, etc)
ii. Three significant exceptions
1. 13th amendment (slavery) – applies to private action as well as state
action
2. government functions doctrine - traditional government functions (ie.
police & fire protection)
i. private actor performs functions traditionally and
exclusively performed by government
1. 3 significant lines of cases
a. private property
b. election cases
c. school cases
3. entanglement doctrine – state affirmatively authorizes, encourages, or
facilitates private conduct
a. close relationship between actor and the government (ie. they are
direct agent of the state)
b. main concept: private conduct that is excessively entangled with
the state – the state has affirmatively authorized, encouraged, or
facilitated the conduct – may rise to the level of state action
i. judicial and law enforcement activities
1. Shelley: judicial enforcement of racially restrictive
covenants
2. Lugar: prejudgement and self-help processed
3. Edmondson: peremptory challenges in civil cases
ii. Licensing and regulation
1. Burton: symbiotic relationship
2. Moose Lodge: regulation not enough
iii. Financing and subsidies
1. Norwood: subsidies that promote racial
discrimination (improper)
2. Rendell-Baker: substantial subsidies for private
schools not enough (no state action)
iv. Voter initiatives
1. Reitman: anti-fair housing initiative
c. Court more willing to find state action when overt racial
discrimination
iii. history
1. state action doctrine established after ratification of the 14th amendment
2. Civil Rights Cases established the state action requirement that is, today,
a central feature of all constitutional law
iv. What is state action?
1. legislative, executive, and judicial action at all levels – federal, state,
and local
2. government officers acting under color of state laws, even if acts are
unauthorized
 3. sometimes, government-created corporate bodies can be state actors
v. the requirement becomes an issue when a private actor harms someone in
such a way that a constitutional issue would arise if the harm were inflicted
by a government actor, and when there is some reason to impute government
action to the private individual who cause the harm
b. General analysis of state action questions (3 main factors)
i. To what extent does the private actor rely on governmental assistance and
benefits
ii. Whether the actor is performing a traditional governmental function that has
been engaged in exclusively by government
iii. Whether the injury caused is aggravated in a unique way by government
intervention
c. History
i. Civil Rights Cases (restrictive view of 14th): the SC ruled that section 5 of the
14th amendment didn’t give Congress the power to pass the Civil Rights Act
of 1875, which prohibited racial discrimination in places of public
accommodation
1. held: that the 14th amendment deals only with state action; invasion of
individual rights by private persons is not within the scope of the
amendment, and therefore Congress may not reach such activity under
section 5
a. the purpose of the 14th amendment is to give equal rights to newly
freed slaves
b. the court was trying to protect state sovereignty rights
i. the broader the federal power, the more the state power
contracts
c. this statute was found unconstitutional but the same statute was
constitutional in 1964
i. reasoning Congress used a different power source (the
commerce clause)
d. what is state action
i. legislative, executive, and judicial action at all levels of government
ii. government officers acting under color of state law
1. if acting in an official capacity, officer is a state actor even if the
conduct is not authorized by law
iii. government-created corporate entity may be state actor (ie. Amtrak
1. case law is conflicting – look at facts/function/board members, etc to
determine
e. exception #1 – 13th amendment
i. “Neither slavery nor involuntary servitude, except as a punishment for
crime…shall exist within the US, or any place subject to their jurisdiction”
ii. outlaws slavery and involuntary servitude, regardless of who acts to impose,
except as criminal punishment
iii. Civil Rights Cases interpreted narrowly (see above)
f. exception #2 - performing an exclusive governmental function
 i. the court will find state action when a private party is performing a function
that has traditionally been performed by government
1. in recent years the court has insisted that the function be one that has
been exclusively performed by government
ii. Private property
1. Marsh v Alabama: M, a Jehovah’s Witness, was handing out
information on premise of company-owned town against the wishes of
management. She refused to stop and was arrested/convicted of trespass
a. Issue: is company town a state actor - SC found state action,
reasoning that the town was the functional equivalent of a
municipality, so the 1st amendment would apply there as it would
in any town
i. If a company town performs the traditional functions of a
municipality, it will be treated as a state actor
1. here they were providing fire, water, sidewalk, etc
because of it that can be sued under the 14th
a. due process – liberty interest
ii. Operation of the town was “essentially a public function”
and was “subject to state regulation”
iii. Privately-owned shopping center
1. Amalgamated Food Employees Union v Logan Valley Plaza: court was
unsure how to treat shopping centers, are they like central business
districts like in a city or something different
a. Union picketing on shopping center premises could not be
enjoined
2. Hudgens v NLRB: union members began to picket their employer’s
store in a shopping center, but left when told they would be arrested for
trespassing, and they brought 1st amendment action claimed shopping
center was functional equivalent of a municipal shopping district
a. SC overruled Logan and held: no state action when the owner of
the privately-owned shopping center excluded the picketers
i. No state action is involved when the owner of a privately-
owned shopping center excludes speakers from the center
iv. Elections
1. Smith v Allwright: Smith, black resident in TX sued officials of the
Dem party who refused to allow him to vote in primary election of Dem
party
a. SC found state action on the part of the Dem part when it
excluded Smith/others from voting
i. Delegation to a political party of the power to fix elector
qualifications is delegation of a state function
1. running election is a state responsibility not
individual thus they can’t discriminate – thus can’t
discriminate
v. government involvement in a racially discriminatory bequest
1. Evans v Newton: senator devised land for a whites-only park
 a. SC: park was municipal in nature, thus state action that aided
private parties to perform public function on a segregated basis
implicated state in conduct proscribed by 14th amendment
i. Running park typically done at state level
vi. State-granted monopoly
1. Jackson v Metropolitan Edison: J filed action that her due process rights
were violated. SC found no state action when heavily regulated electric
company cut off her service, w/o providing notice or hearing (thus
Jackson loses and Metro treated as a private entity)
a. Analysis:
i. Monopoly not enough to create state action by itself,
guaranteed by the state or not, over a particular service
ii. Highly regulated alone is not enough to create state actor
status
1. dissent – there is a strong argument for state action
a. highly regulated, essential service,
monopoly
b. A public utility even if granted monopoly status by a state, is not a
state actor
c. Supplying utility service not traditionally the exclusive area of the
state – not it appears that’s must be exercise by private entity of
powers traditionally exclusively reserved to the state
g. State involvement/encouragement
i. Shelley v Kramer: SC found state action when a state court issued an order
enforcing a restrictive covenant in which white homeowners agreed not to
sell property to black buyers
1. state action was present because state court judges ordering the white
sellers to comply with the terms of the restrictive covenant, and thus the
state court directly prevented the black buyer from moving into the
house
a. the constitutional violation was that there was a willing seller and
buyer and the residents were trying to enforce the racial restrictive
covenant which violated the 14th amendment
i. the racially restriction covenant by itself is fine, trying to
enforce in court (where the court is a state actor is not good)
ii. Barrows v Jackson: similar to Shelley but they sued for monetary damages
for breach of the restrictive covenant
1. state action found by SC
iii. bottom line for restrictive covenants state action when P seeks enforcement
of the covenant or attempts to recover money damages
iv. “sit-in” cases – similar to Shelley
1. Peterson v Greenville: reversed trespass convictions of blacks refused
service at lunch counter
a. Clear violation of the 14th amendment
2. Bell v Maryland: also involved a restaurant sit-in
 a. Plurality said state may not use criminal trespass laws to frustrate
constitutional equal protection right
h. State initiatives
i. Reitman v Mulkey: SC found state action in a private party’s refusal to rent
an apt to someone because of their race. A provision of Cali constitution
authorized racial discrimination in the sale or rental of property
1. SC agreed with Cali SC that provision in state constitution involved
state in racial discrimination (the state had take affirmative action
designed to make discrimination legally possible)
a. Violation of the 14th amendment thus state action
ii. Roemer v Evans: CO constitutional initiative repealing laws that prohibited
discrimination against gays and preventing enactment of new laws, was
unconstitutional
iii. Hunter v Erickson: declaring unconstitutional an amendment to city charter
repealing open housing laws and requiring voter approval for new open
housing laws
i. Exception #3 – entanglement
i. Licensing & Regulation
1. Moose Lodge v Irvis: SC found no state action simply because a state
grants a liquor license to an establishment. Irvis was refused service at a
local Moose Lodge because of his race. He asserted state action by
virtue of the lodge’s liquor license which is regulated by the liquor
authority
a. Lodge was private on private land and privately run – normally
14th amendment wouldn’t apply
b. Analysis
i. Grant of liquor license and extensive state regulation not
sufficient entanglement
1. a state granted a liquor license to a private bar
doesn’t make the bar a state actor
2. Burton v Wilmington Parking Authority: The restaurant was located in a
state-owned parking authority, and was leased from the authority. SC
found state action on the part of a private restaurant owner who refused
to serve minorities. SC looked at all the connections between the state
and the restaurant and found the 14th amendment applicable.
a. Government so entangled there was a “symbiotic relationship”
(mutually beneficial) sufficient to create state action
i. Parking facility used by tenant’s customers
ii. Government benefited from tenant’s revenues
b. No symbiotic relationship in Moose Lodge because it was on
private land, etc – thus no state action
ii. Subsidies
1. early cases found that state subsidies resulted in state action:
a. Norwood v Harrison: state action where government gave
textbooks to private schools that discriminated on account of race
 b. Gilmore v Montgomery: state action where city gave
discriminatory private schools exclusive access to city’s parks and
other recreational facilities
2. more recent cases have refused to find state action despite heavy
subsidization
a. Rendell-Baker v Baker: no state action where state funds
accounted for 90-99% of private school’s fund
b. Blum v Yaretsky: no state action by heavily state regulated
nursing homes where 90% of residents’ medical expenses were
paid by state and state also subsidized operating expenses
j. Modern development
i. Public subsidies
1. schools
a. Rendell-Baker v Kohn: private school received almost all of its
funding from the government. Fired a teach for speech-related
activities
i. SC: there was no state action despite nearly all the students
being referred to the school by government agencies, the school
being heavily regulated by the state, and public funds
accounting for 90% of school’s operating budget
ii. SC used the 4 factors from Blum to determine school was
not state actor (Exam: even with 4 factors without racial
discrimination difficult for state action):
1. Subsidy
2. Extensive regulation
3. Public function
4. Symbiotic relationship
ii. Corporate entities
1. San Fran Arts & Athletics v US Olympic Comm: USOC say gay can’t
use Olympic
a. USOC not part of government even though chartered by
Congress, partially federally funded, and regulated by federal law
i. There was no government action by virtue of Congress
giving the USOC the power to control the use of the word
“Olympic”
2. Lebron v National RR Passenger Corp: Amtrak was part of government
because it was created by federal law, had a board appointed by
president, and was substantially federally funded
iii. Judicial action: prejudgment and other self-help
1. Flagg Bros v Brooks: SC found no state action when a state statute
authorized the owner of warehouse to sell the belongings of someone
who didn’t pay bill
a. No public officials remained in suit as Ds (after sheriff removed)
i. Absence of public officials distinguished other prejudgment
attachment and self-help cases
ii. SC: it was just a private remedy between private parties
 1. no state action, no recourse against Flagg
iii. no state action exists when a state authorizes an owner of a
warehouse to sell the belongings of someone who didn’t pay his
bill
iv. Peremptory challenges in jury selection
1. Batson v Kentucky: held that equal protection prohibited state
prosecutor from using peremptories to racially discriminate
a. Court said illegal to racially discriminate for challenges
i. Cited Shelley
2. Edmonson v Leesville Concrete: applied Lugar analysis to extend
Batson to civil cases
a. State and federal laws authorize peremptories
b. Government heavily involved in jury selection
c. The use of peremptory challenges, in a criminal or civil case,
involves state action
i. State action was present because the state court, by
enforcing the peremptory challenges, significantly involved
itself in invidious racial discrimination
v. No state action when injuries are inflicted by private parties
1. DeShaney v Winnebago County Dept of Social Services: the SC found
no state action when a state social worker investigated allegations of
child abuse, found some corroborating evidence, but left the little boy in
his home where he was severely beaten by his father and suffered
permanent brain damage
a. A state’s failure to protect an individual from violence by a
private party doesn’t constitute a violation of the due process
clause
i. The government has no obligation to protect a person from
harm by another person
1. there will be state action, if a person is injured while
under the custody or control of the state
ii. the mom loses because the father is a private actor not the
state
1. the court also concerned with taking away the rights
of the father
iii. bottom line she isn’t entitled to compensation
vi. Caste Rock v Gonzales: wife brought civil rights claim against CR for failing
to enforce a restraining order agt her estranged husband. She said she has a
property interest in the enforcement of the restraining order and that she had
been deprived of it in violation of the due process clause of the 14th
amendment
1. no state action where police fail to enforce order that results in death of
two little girls – murders committed by father – not police
a. no due process property interest in enforcement of order
 i. she could have raised scrutiny by making argument liberty
interest in right to parenting as opposed to rational based
scrutiny where she was arguing in property interest
2. a person doesn’t have a property interest in the enforcement of a
restraining order unless the state specifically creates one by statute
XXXIV. Procedural Due Process
a. Overview
i. The due process clauses are intended to ensure that a government uses a fair
procedure when it singles out an individual for a deprivation of life, liberty,
or property
ii. Procedural due process – flows from 5th amendment if federal government is
involved, and 14th amendment if state is involved
1. about the process no the substance
iii. Key elements of procedural due process
1. notice, either written or verbal (by government)
2. opportunity to respond, either in writing or in hearing (sliding scale)
3. neutral decision-maker or tribunal (like the detainee cases)
b. main concept: the government may lawfully deprive a person of life, liberty, or
property only if it follows reasonable procedures to minimize the risk of an
erroneous or unfair deprivation
c. In general, three questions
i. (1) Is there a liberty or property interest?
1. what is a property interest:
a. created by state or federal law
b. includes things you may not think of, like
i. welfare and other public benefits
ii. license to engage in trade or profession
2. what is a liberty interest? (receives strict scrutiny)
a. Includes fundamental rights and other liberty interests not subject
to elevated scrutiny
b. Very broad
c. Fundamental example: free speech
d. Other interests example (natural rights): right of marriage
ii. (2) Has there been a deprivation?
1. Procedural due process only triggered if there is a deprivation of a life,
liberty, or property interest:
a. Simple negligence is not enough
b. A insubstantial impairment of an interest will not trigger
procedural due process
c. Don’t confuse substantive due process (ie. rational basis or strict
scrutiny) with procedural due process)
iii. (3) What process is due?
d. Test used to determine whether there is a protected property interest
i. Current test: whether government has done something to create entitlement to
a property interest (Roth v Board of Regents)
1. expectation v entitlement test – right to have property
 a. example: been teaching for 10 years and contract is not renewed –
you have a right to the property
e. Basic Analytical Model
i. Basic procedural due process analysis involves 3 questions:
ii. (1) is there a life, liberty, or property interest?
1. if no, then no procedural due process implications
2. if yes, go to question 2
iii. (2) has there been a deprivation of that interest?
1. if no, then no procedural due process required
2. if yes, go to question 3
iv. (3) what process is required?
1. pre-deprivation or post-deprivation process
2. formality of process
a. full evidentiary hearing vs. something less
3. Test is 3-part Matthews v Eldridge balancing test (used in the Hamdi
case):
a. Nature of the individual interest
b. Risk of deprivation and benefit of additional procedures
i. Courts tend to be deferential
ii. what is the risk government will make a mistake
c. Nature of the governmental interest
i. This test is used to determine how much procedural due
process protection is required
f. 3 Dimensions of due process (instead of analytical model – use one or the other)
i. Right – “If”
1. life, liberty or property interests – 5th & 14th amendments
2. “Nature – not weight”
3. Exception vs. Entitlement
4. Roth & Perry
ii. Timing – “When”
1. G.R. – hearing before the deprivation
a. Before the government takes the action, but if emergency (an
exception, ie. national security)
2. emergency – hearing after government action – Mallen
3. Mathews – 3 part test (balancing test):
a. Private interest
b. Risk of erroneous deprivation
c. Government’s interest
iii. Scope – “How much”
1. “Flexible due process”
2. Goldberg ----- Gary Panthers ----- Gross
a. The greater the harm the more procedural due process they will
receive
b. Goldberg: most harm because here sole support was her welfare
check they were going to take away, thus no income
i. She is entitled to full blown hearing
 c. Gross: school suspension – just entitled to school hearing to
ensure they have the right person to suspend
i. Just entitled to “some kind of hearing”
d. Gary Panthers: in the middle
3. find where on the spectrum client is and argue level of procedural due
process allowed