1.

CONSTITUTIONAL INTERPRETATION
a. Tools for interpreting the C
i. Constitutional text
ii. Original intent usually not binding
iii. Constitutional structure
1. Separation of powers (branches)
2. Federalism (Fed & S)
iv. History & tradition
1. Indirect means of determining original intent
2. Basis for extending reach of C provision
3. Established American traditions may provide basis for C protection
v. Fairness & justice
vi. Political theory
vii. Social policy
viii. Foreign, international, & state law
ix. Supreme Court precedent
b. Limits on Constitutional Power, purported exercise of C power must:
i. Definitional: Be w/I the defined scope of that power
ii. Structural: May not violate limitations inherent in the structure of the C (especially
separation of powers)
iii. External: May not transgress any external limits or guarantees imposed by the C (e.g.
As)
iv. These arent brightlines very ambiguous!

SUPREME COURTS AUTHORITY & ROLE

1. JUDICIAL REVIEW
a. Judicial review: Ct has authority to look at an act of Congress, Exec, State and determine
whether it is Constitutional if not, it is invalid
i. Benefit: C is something more than just a moral/political guidepost
ii. Reasons:
1. C imposes limits on gov powers, and they are meaningless unless enforceable
2. Judicial role is inherently to say what the law is
3. The Cts authority to hear cases arising under the C, implies power to declare
laws in conflict w/ C, un-C
4. Judges take an oath which would be violated if they enforced un-C laws
5. Supremacy clause
b. Limitations/Problems
i. Article 3
1. Section 2 specifies areas of jurisdiction and Cong cant expand it (Marbury)
2. Original vs. appellate jurisdiction + exceptions clause (Congress)
3. Cong can grant DCs concurrent jurisdiction (Ames)
ii. Counter-majoritarian difficulty court isnt elected
iii. Ways to counter judicial review Leg/Exec dislikes
1. C amendment
2. Judicial appointment
3. Popular sentiment may sway judges later
4. Impeachment (has never been used though)
iv. Doesnt preclude other branch interpreting the C
1. But if the interpretations conflict, judicial always trumps
c. MARBURY V. MADISON (1803) pg. 2
1

i. [Mar elected to fed judge, commission signed, etc. but new pres declared it void Mar
sued to enforce commission]
ii. Established Judicial Review. Court held that a writ of mandamus to deliver a
commission made by John Adams fell under the Supreme Courts appellate
jurisdiction and therefore could not be brought in that court originally under Art. III
because it is repugnant to the constitution
iii. Key Principles
1. Federal Judicial Power: If you have a federal right, you get federal judicial
remedy
2. Federal Courts may not review political questions
3. Judicial review of executive branch (e.g. proper C authority to act?)
4. Judicial review of legislative (congressional) branch (e.g. proper C authority to
act?)
5. Congress may not expand SCs Art. 3 jurisdiction (which is what Act of 1789
did w/ the writ of mandamus clause they expanded original jur)
a. Cant shift from appellate to original
6. SC must decide cases consistent with the C
iv. Executive discretion & political questions
1. elected officials get discretion
2. zone of discretion cannot be overseen by judges
3. Key: if the action was not required, then judges cant review it
a. If action mandated, then review okay (review of exec)
b. If action effects the rights/obligations of citizens, then that act is
probably mandatory
v. SC decides what the law is
vi. People are the sovereigns, Leg just representatives, so C always wins
d. Cooper v. Aaron (1958) pg. 21 hasnt really done much
i. [Gov refused to allow de-segregation of schools; SC said they had to]
ii. Court held that the Brown v. Board of Education decision was binding upon the states
and they were required to comply with the integration order despite being repugnant to
Arkansas state law.
iii. Fed judiciary is supreme in the exposition of the law of the C
1. SCs interp. of C basically is the C
2. Ct defines what the law of the C is at a given point in time, and this judgment
is definitive until altered by amendment/reconsidered
iv. Rule of Law: It is exclusively the courts duty to interpret the constitution and say
what the law is; Supremacy Clause makes the Constitution the Supreme Law of the
Land and is therefore binding on all the states, regardless of any state laws
contradicting it.
v. If state legislature or executive or judicial officer could refuse to obey a federal court
order based upon a federal interpretation of the Constitution it would violate the duty
to support the Constitution.
e. Exceptions Clause (impacts SCs appellate jurisdiction, not original tradition)
i. Definition: -- Art. III, section 2: In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make
ii. Traditional view: Cong can do pretty much whatever w/ this
iii. Mandatory view: Limited by context there must be a court that has juris to hear cases
arising under the C
2

iv. Limited by separation of powers & other C provisions

v. Args for
1. Authorizes Cong restriction & a check on judicial power (counter-maj
problem)
2. Intended check see Ex Parte McCardle
vi. Args against
1. Cong cannot use this to limit jur in an un-C matter
2. See Klein
f. EX PARTE MCCARDLE (US 1869) pg. 31 (Court-Stripping)
i. [Act allowed appeals under habeus corpous (Civil War stuff), later Cong revoked the
appeal ability]
ii. Supreme Court lacked jurisdiction is issue a writ of habeas corpus because Congress
has power under the Constitution to limit the courts appellate jurisdiction
iii. The constitution established the judicial courts, and their organization, which
conferred their power/authority with such exceptions and under such regulations as
Congress shall make.
iv. Key Principles
1. Jurisdiction Q must be answered first
2. No judicial inquiry into intent/motive (of congress)
a. If Ct inquiring, they will probably strike down the statute
b. If not inquiring, they are going to uphold
3. Exceptions clause is broad
a. It is a check/balance on the court
v. Writ of Habeus Corpus:
1. Allows those held to go before a court to contest it
2. Vehicle for post-conviction relief (justified by some change)
3. Not provided for in C (presumed)
vi. How it is used today
1. Supporters of exceptions clause: McCardle establishes that Cong may prevent
Ct from reviewing C issues
2. Critics: Ct was considering a very narrow statute, it is distinguishable
g. US v. Klein (1871)
i. [Cong passed a law saying evidence of pardon couldnt be used in court to seek return
of confiscated goods, also divested SC of jur over these cases]
ii. H: not a proper use of exception authority b/c it usurped judicial function of deciding
case & controversies & encroached on exec
1. Cong cannot direct results
iii. Cong cant manipulate Cts jurisdiction to get a particular result in a pending case
iv. Congress cant limit appellate jurisdiction to direct particular results, at least in a
manner that violates other constitutional provisions.
2. JUDICIAL AUTHORITY (RE States, mainly)
a. SC shall decide cases & controversies
i. Anchor: federal law (Constitution, etc.)
ii. If purely S law, SC has no authority
iii. If there is a Fed Q (or diversity) then SC can have jurisdiction
iv. Cases determine the jurisdiction
b. MARTIN V. HUNTERS LESSEE (1816) pg. 16
i. [VA SC refused to obey SC order RE land ownership]
ii. A VA citizen willed his VA land to his nephew, a British Subject. VA, according to
state law, had right to confiscate land owned by British subjects. VA gave the land to
the Defendant, who then ejected Plaintiff from the land. The treaties of 1783, 1794
3

with Great Britain had anti-confiscation laws saying that the states wont take the land
of British citizens.
iii. SC exerted its authority to review the VA courts judgment and held that Supremacy
Clause declares that the Federal interpretation will trump States interpretation.
iv. SC can review state decisions
1. Supreme Court must be able to review the decisions by the state courts who
rule on federal law.
v. Key principles
1. C stripped states of essential attributes of sovereignty
2. C gave Congress power to grant SC appellate jurisdiction
a. As long as the case has a federal issue, then SC has jurisdiction
3. Congress created pyramidic structure of Fed Cts, thus uniformity
vi. Trust in fed judges more than S, because S judges are beholden to S interests
1. Need for uniformity
2. Supremacy clause compels Fed Cts to be final decision makers
a. Federal interpretation trumps the states interpretation
3. State interests sometimes obstruct administration of justice
c. Independent and Adequate State ground
i. Court will not review S ct rulings on issues of S law if decided on adequate &
independent state grounds
1. A S can avoid SC jur if it clearly shows S law controls the issues
2. Possible adequate & independent S ground doesnt preclude SC jur if the S ct
rests its decision on Fed law
ii. Adequate: If S court decides the case on state grounds that dont violate C or fed law
(& fully support result), then it is adequate and Fed ground is just dicta
1. But if the S cts decision is really about the fed issue, then SC gets jur
iii. Independent: the ground for decision is not based on S cts understanding of Fed law
(includes borrowed fed law)
3. JUSTICIABILITY DOCTRINES
a. Internal constraints on judiciary
b. Key: SC shall decide cases and controversies Art. III, section 2, clause 1
i. Ct can only have jur over matters w/ actual disputes involving legal relations of
adverse parties, AND
ii. For which the judiciary can provide some type of effective relief
iii. Doesnt bind S courts, so a matter that isnt originally a case may (b/c of S court
action) make its way to SC anyways
c. Constitutional: courts interp of constitution makes it mandatory to do X
i. Dickerson v. U.S. (2000) pg. 21
1. Cong may not supersede Ct decisions interpreting & applying C by legislation
(makes C decisions binding)
2. Cong retains authority to modify/set aside rules/proc not required by C
d. Standing (C doctrine) (Capacity of a party to bring suit in court) (Identity of the Plaintiff)
i. Goal: ensures that the right plaintiff is bringing the case
1. Courts want the best possible record
2. The most interested litigants provide the best record
a. Also more fair (we dont like intermeddlers)
3. Institutional competence promotes SOP
4. If not the best parties, then approximates an advisory opinion
ii. Requirements (Lujan)
1. Injury in fact: personal, concrete, actual & present/imminent (for plaintiff)
a. Interest invaded can be:
4

iii.
iv.

v.

vi.

vii.

i. Environmental, aesthetic, as long as personal

ii. Common law (torts, K, etc.)
iii. Constitutional (discrimination, individ rights)
iv. Statutory
b. Injury may not be too abstract or speculative
i. If future harm, P must show it will likely happen to him again
(Lyons no injury where man was beaten b/c it was in the past
and prob wouldnt happen again)
2. Traceability: injury must be fairly traceable to defendants action
a. Must be premised on specific/plausible allegations of fact
b. Not the result of the independent action of some third party not before
the court
3. Redressability: if plaintiff wins, court can provide meaningful legal redress
difficult in absent 3rd party situations
a. Limits types of remedies available
4. Must prove these for each claim
Citizen-Suit: Cong may confer standing for suits challenging gov action
1. FEC v. Akins (1998) pg. 45
a. Where harm is concrete (even if widely shared), then injury
LUJAN V. DEFENDERS OF WILDLIFE (1992) pg. 36
1. [Endangered Species Act scope intl or national?]
2. No facts showing how damage to the species in another county will produce
imminent injury for the members of DoW. No factual of perceptual harm.
3. Ps brought a citizen-suit (to check administration/policy deviations)
a. Injury wasnt specific enough (matter of degree)
b. Redressability problem: relief granted wouldnt resolve the harm
MASSACHUSETTS V. EPA (2007) pg. 41
1. [Mass sued RE global warming stuff]
2. EPA refused to regulate emissions of motor vehicles.
3. Mass. has standing to sue. Massachusetts satisfied the case and
controversies requirements.
4. A litigant who Cong has accorded proc right to protect a concrete interest, can
assert it w/o meeting normal standards for redresability/immediacy
Allen v. Wright (1984 pg. 42)
1. [black parents arg IRS failed to deny tax-exempt status to racially
discriminatory private schools, making desegregation more difficult]
2. Alleged injury not traceable to the gov conduct (too indirect/attenuated)
Prudential Standing if any of these are found, there is no standing
1. Generalized Grievance: harm widely shared & abstract
a. harm must be factually particular to each person
i. so doesnt mean a large group is excluded
b. If GG then the legislature should resolve the issue
c. Court will not adjudicate a claim where the harm alleged is suffered by
a large segment of society and not specific to one person or small group
of people
d. See pg. 48 for a bunch of cases
e. One of a million taxpayers, etc.
2. Zone of Interest:
a. Applies when challenging an administrative agency reg
b. Is this person within the class of the statute?
i. The group intended to benefit from the law
5

3. Third-parties cant bring suit on behalf of a 3rd party

a. Person with the interest must come to the court
b. Exception: Association
i. Association/members must show a concrete injury
ii. Participation of individual members must be unnecessary
4. Valley Forge v. Americans United (1982) pg. 43
a. Generalized grievance problem (despite real injury) more
appropriately addressed in representative branches
5. Craig v. Boren (1976) pg. 43
a. 3rd party suit allowed b/c buyer & sellers of alcohol held to have
interchangeable economic interests
viii. Standing may actually give SC more power
1. SC can reject cases without deciding them on the merits
a. If SC decides a case on the merits, it expends political capital
(because one party walks away angry at the court)
2. Problem: when SC uses standing to decide on the merits
e. Prudential: doing X is a good idea (not C required)
i. Advisory opinions
1. Not a case (no parties) which is why SC wont issue them
2. Criteria (for a case to not be AO)
a. There must be an actual dispute
b. Substantial likelihood a fed decision would bring a change/effect
3. Reasons SC wont do it
a. Violation of Separation of powers (stay out of leg process)
b. Practicality (courts evaluate evidence, not abstract things)
c. Conserves judicial resources
d. Rescue Army v. Municipal Court of LA (1947) pg. 32
ii. Ripeness pg. 47-48 (Timing)
1. Anticipatory legal action before something bad has actually happened.
2. Too remote or speculative to warrant judicial action.
3. Typical problem arises from situations in between, especially in request for
anticipatory relief.
4. Prevents courts from answering questions without facts.
5. United Public Workers v. Mitchell (1947) pg. 48: dismissed b/c nonripe
6. Laird v. Tatum (1972) pg. 48: dismissed b/c not ripe
iii. Mootness pg. 47 (Timing)
1. Cases where there was a live case before, but now there isnt.
2. When changing circumstances developing after the initiation of the lawsuit
have ended the controversy, so that the court no longer confronts a live dispute.
3. Exception: cases capable of repetition but evading review (Roe v Wade)
4. Ellis v. Brotherhood of Clerks (1984): so long as parties have a concrete
interest in litigation outcome, however, small, the case isnt moot
f. Political questions (Nature of the dispute)
i. Idea: subject matter inappropriate for judicial review. (Federal Court will refuse to
hear a case if it presents a Political Question)
1. Ct may review ministerial acts, but not political (discretionary) acts (Marbury)
a. Political acts
i. E.g. who to appoint as an officer or
ii. Whether to veto
ii. Underlying Rule: The court system only has authority to hear and decide a legal
question, not political questions. Political questions are nonjusticiable. It is justified by
6

iii.

iv.
v.

vi.

vii.

viii.

the notion that there exist some questions best resolved through the political process,
voters approving or correcting the challenged action by voting for or against those
involved in the decision.
Framework for judging PQs, if yes (on any of 1-3) , then PQ
1. Note: These are helpful evaluating tools no bright-line test
2. (1) Textually committed to an elected branch
a. Constitutional doctrine (C says X gets to do Y, so Ct cant interfere)
b. Benefit: more brightline
c. Problems:
i. When there is conflict between a C principle Ct normally
adjudicates & a matter textually committed to another branch
ii. Circular: Ct still interprets C by saying C committed X to Y
d. When asking if Ct has authority, Ct must still exercise it to answer
3. (2) No judicially manageable standard
a. We dont have the capacity (means) to answer this Q
b. Prudential & constitutional doctrine
i. Prudential: the Ct making a statement about its power
(institutional competence)
ii. C: if Ct cant use a standard, it is because it is under purview of
Exec or legislature (separation of powers)
4. (3) Avoid disrespect to a coordinate branch
a. Prudential C doesnt require respect b/t branches
Luther v. Borden Guaranty Clause, determined by Congress, cannot be secondguessed by the court (Art IV sec 4)
BAKER V. CARR (1962) pg. 56
1. [TN black voters claimed TN legislature violated their EP rights b/c it hadnt
been recalculated since 1901]
2. Voters in TN claimed that b/c population had substantially grown and
redistributed since 1901. Because of the makeup of the legislature, redress was
difficult or impossible
3. Challenges under Equal Protection Clause justiciable
4. D arg guaranty clause (states can decide their mode of gov)
a. If it falls under the Guaranty Clause, it is a political question and the
court cannot hear the case.
5. Set out political question framework)
6. Result: one person, one vote
Powell v. McCormack (1969) pg. 62
1. [HR refused to seat P b/c of a finding that he was embezzling]
2. legal question (so justiciable): Fed courts may on occasion interpret C in a
manner at variance w/ another branchs construction
Presidential Election Process: Bush v. Gore (2000) pg. 65
1. Court hear this case (justiciable)and held that the recounts ordered b the
Gore team were unconstitutional and violated equal protection because they
were being conducted under nonuniform standardsalso, there was no
possibility to remedy the situation by 12/12, the date by which the votes must
be conclusive
Cases/Situations where it is a Pol Q
1. Reviewing state legislatures reapportionment of voter representation was not a
polical question (Baker v. Carr)
2. Rejection of House of Representatives seat was not a political question (Powell
v. McCormack)
7

3. Foreign Policy sometimes Pol Q

a. Dames & Moore, Missouri v. Holland NOT PQ
b. When war beings/ends is PQ
c. Recognition of foreign gov - PQ
4. Goldwater v. Carter (1979) pg. 56
a. [Pr unilaterally terminated a treaty; does he have authority for this?]
b. Political Q b/c involves authority of Pr & conduct of foreign relations
5. NIXON V. US (1993) pg. 56
a. [Impeachment of Miss. Judge]
b. C commits impeachment authority to Congress, thus Ct cannot review
c. Impeachment proceedings are not reviewable unless Senate acts in a
manner seriously threatening to the integrity of the results.
d. POLITICAL QUESTION
6. Coleman v. Miller reasonable period of time for ratifying As is Pol Q

FEDERALISM
4. FEDERALISM
a. Components of Federalism
i. Union of autonomous states
ii. Division of power b/c national gov & states
iii. Direct operation of each gov w/I its sphere on all w/I its territory
iv. Federal supremacy over conflicting S action
1. Also, Ss cannot interfere w/ Fed gov
b. Policy
i. Framers meant C to create strong fed government with a robust role for states
ii. Balancing power
iii. Separation of powers purpose
1. Vertical & horizontal SOP protects individual rights!
2. Delegation to Ss to protect individual rights
3. A system with 2 groups prevents one group from becoming too powerful &
thus wont overwhelm the people
c. When Cong/S can act
i. Cong: when there is express or implied authority to act in the C
ii. States: wide latitude, unless C prohibits the action (or in negative implication cases
like DCC)
iii. State vs. federal power
1. Complementary powers: Art 1 Sec 8 & 10th A
2. Strong 10th A arg/view: must interpret Art 1 Sec 8 w/ S powers in mind
3. Weak 10th A arg/view: interpret Art 1 sec 8 first and whatever doesnt go to
Congress falls to the states (a net)
d. Safeguards of Federalism
i. Political Process: elements in national political process that ensures Cong wont
exceed its authority (e.g. elections!)
1. Presupposes there is S authority & pol process will preserve it
2. Whenever pol process is functioning properly, then things are right
ii. Representation Reinforcing Review: elected officials make policy decisions, but the
courts can evaluate if there has been a breakdown in pol process
e. MCCULLOCH V MARYLAND 1819 pg. 75
i. [Md taxed fed gov bank] Maryland sued McCulloch for failing to pay the taxes due
under the Maryland statute and McCulloch contested the constitutionality. Held that
8

Congress had the power to create a national bank in Maryland because although not
within its enumerated powers, it falls under the necessary and proper clause.
1. But, Maryland could not impose a tax on the bank because states cannot tax or
interfere with any Constitutional laws enacted by Congress to carry into
execution the powers vested in the federal Government.
ii. Justice Holmes McColloch validates Supreme Court to strike down state laws.
iii. Key principles
1. The People created the constitution (so C > S laws)
a. People = sovereign & C is statement of their sovereign will
b. The C derives its authority from the people, not from the states.
c. When a state taxes
2. The Ct doesnt deny there are limitations on federal enumerated powers
3. Necessary and proper clause ( gives Congress implied powers
a. in context, Congress needs means to effectuate their powers/duties
b. C is supreme, so Congress must have implied powers
c. The power to create, includes the power to preserve
d. SEE BELOW
4. Framers intended SC to expand meaning of C (C as outline)
a. C is a constitution, which is different from a statute and should be
interpreted differently
5. Proper congressional actions are supreme law
6. State actions inconsistent with proper federal actions are per se invalid
iv. Representation Reinforcing Review
1. Response to courts arent democratic argument
2. Judicial review justified to repair political process
a. No reason to defer if leg behaving improperly
f. US TERM LIMITS V THORNTON (1995) pg. 90
i. [Ark Arg: 10th A doesnt prohibit term limit restriction or delegate it elsewhere so we
should have it]
ii. Arkansas elected law that imposed term limits on its representatives to the U.S. House
of Representatives and the Senate. The mechanism was to be limitations on ballot
access. If someone had already served 3 terms on the House or 2 in the Senate, their
name would not appear on the ballots.
iii. Allowing states to impose additional term limits in national leg is improper (lack of
uniformity)
1. People of the nation!
2. Nation is not a collection of states, but is one of the people.
3. Arkansas cannot attempt to impose term limits indirectly, that which they
cannot do directly.
iv. To change the text of the C, you must amend
v. Congress is composed of representatives of the people, essential to single National
Government (so one state cannot change them)
vi. 10th A argument
1. Majority: reserves only powers possessed before C ratified
2. Dissent: states retain all power not denied them
5. Cases where Fed & S laws clash
a. Regulations may implicate
i. Federalism
ii. Separation of powers
iii. Individual rights
iv. If it passes one, but fails another, then regulation is per se invalid
9

b. Evaluating the Constitutionality of an Act of Congress

i. Does Cong have proper authority to regulate X?
1. If so, does it violate any other provisions or doctrines?
ii. Is congress actually regulating X?
Q1
Q2
Result
No
No
No
Yes
CC - Lopez & morrison
Yes
No
DCC Fed exclusivity? Does S
Statute discrim?
Yes
Yes
Fed Pre-emption

10

NATIONAL POWERS: CC, TAXING, SPENDING, WAR & FOREIGN

1. Generally
a. Principle of limited government: every exercise of national authority must be linked to a
constitutionally granted power (EE)
i. The power must be identified
ii. The scope of the power must be defined
iii. Q: is the exercise of authority within the defined scope?
b. Commerce Clause (regulating interstate commerce): Art 1 sec 8 cl 3
c. NECESSARY & PROPER CLAUSE (Art 1 sec 8 cl 18)
i. Structural Reason: C granted specific powers, but lacked details b/c one cant foresee
the specifics of implementation
1. Thus to be effective, need authority to select reasonable means through which
to exercise C responsibilities (EE)
2. Supremacy clause also implies Cong can use available means, even implied
ii. Means of implementing ALL granted powers (not just in Art 1)
1. Covers any means calculated to produce the end
2. Also lets Cong provide coordinate branches the means to carry out their
respective responsibilities (e.g. admin agencies!)
3. The power to create, includes the power to preserve/protect that creation
iii. Test: let the end be legitimate, let it be within the scope of the C, and all means which
are appropriate, which are plainly adapted to that end, which are not prohibited, but
consist with the letter & spirit of the C, are constitutional. (McCulloch)
1. End must be grounded in an enumerated power (broad)
2. Means (implied power) and end (enumerated) must be logically related
3. Rational basis: gov has to show a legit end and that the means is rationally
related to the end
iv. US v. Comstock (2010) (pg. 99)
1. [statute allowing Fed DC to order civil commitment of mentally ill, etc longer
than normal]
2. I: whether Fed Gov has the authority to enact this? Whether the Necessary and
Proper Clause grants authority to Congress to enact a statute allowing federal
district courts to order the civil commitment of mentally ill, sexually dangerous
federal prisoners beyond the dates they would otherwise be released?
3. H: yes
4. Rationale
a. N&P clause grants Cong broad authority to enact legislation that is
convenient, useful, or conducive to the authoritys beneficial exercise
i. Whether the statute constitutes a means that is rationally related
to the implementation of a constitutionally enumerated power.
b. Statute is a modest addition to other statutes on similar stuff
c. It reasonably extends the civil-commitment system & is reasonably
adapted.
d. Properly accounts for state interests
e. Link b/t the statute & enumerated Art 1 powers not too attenuated
v. Raich Scalia Concurrence (121-22)
1. Activities that substantially affect ISC are NOT themselves part of ISC, so the
power to regulate them comes from N&P + CC
a. If it is necessary to make ISC reg effective, Cong can regulate intrastate
activities that do not themselves substantially affect ISC
11

i. This includes regulating non-economic local activity if it is a

necessary part of a more general reg of ISC!
2. Big Q: whether the means chosen are reasonably adapted to the attainment of
a legit end under the CC
d. Note: powers NOT granted to Cong by the C, are reserved to the States or people (10th A)
2. COMMERCE CLAUSE
a. Generally
i. Intrastate commerce: state regulation only
ii. Interstate: congress
iii. If in conflict, then congress controls
b. Purposes
i. Prevent the states from erecting interstate barriers to trade
ii. Promoting interstate economic agenda (as interpreted by Ct)
c. The questions
i. What is commerce
ii. What does among the several states mean?
iii. Does the 10th A limit Congress?
d. Historical developments
i. Dual Sovereignty view: fed & state govs were separate sovereigns with their own
zones of authority
1. Court protected these zones by reinforcing them (ensuring their integrity)
ii. Constraints on CC
1. Restrictive
a. US v. EC Knight (1895) pg. 112
i. [whether statute applied to prevent sugar monopoly]
ii. Manufacturing commerce (CC only regulates commerce)
b. Hammer v. Dagenheart (Child Labor) (1918) pg. 116 [overruled]
i. [Law barring child labor-produced products from ISC]
ii. Cant use CC to regulate policy; the motives arent directed at
commerce.
2. Permissive
a. Champion v. Ames (Lottery Case) (1903) pg. 87
i. [prohibited importing lottery tickets, etc.]
ii. Cong can regulate social policy via CC
iii. Interstate & Intrastate
1. Restrictive
a. US v. EC Knight (cont): Cong can regulate intrastate activity only if the
activity has a direct effect on ISC
b. Hammer (cont): cant convert intraS to ISC through banning
2. Permissive
a. Houston E&W v. U.S. (Shreveport) 1914 pg. 86
i. As long as intraS activity has direct impact on ISC, then CC reg
allowed
b. Swift v. US (1905) pg. 114
i. [meat dealer price fixing]
ii. If in current/chain of ISC, then subject to CC regulation
iv. GIBBONS V OGDEN (1824) pg. 110
1. [Ogden had statutory monopoly over ferries b/t NY & NJ; Gibbons began
operating competing ferry under fed law: NY vs. Fed law]
2. Key principles:
12

a. Congress may not regulate intrastate matters under CC

b. CC gives congress broad powers to regulate interstate matters
i. Commerce is intercourse (includes navigation)
c. Remedy for Cong abuse lies in political process, not the courts
i. If interstate & congress does it w/ bad motive (but w/I letter of
CC) then up to political process to correct
ii. Political Safeguards of Federalism
d. Where congress regulates w/I its proper authority, Ss may not impost
contrary regulations
v. SCHECHTER POULTRY V US (1935) pg. 91
1. [Fed Statute: National Industrial Recovery Act; SP (chicken butcher operating
only in NY) had violated regulations in it]
2. Gov args:
a. Interstate b/c w/I stream of commerce
b. Activity w/ a substantial effect on interstate (economic effects)
i. Ct: no limits with this arg! Cong could reg everything!!
3. Ct: there must be some limits to Cong power (assumption)
a. And the effect of the NY reg is indirect, so insufficient
vi. Carter v. Carter Coal (1936) pg. 93
1. [min wage & hours law]
2. Effect of the law primarily falls upon production and not commerce;
production is purely local
3. Direct vs. indirect effect turns on the manner in which effect brought about
3. MODERN COMMERCE CLAUSE
a. Considerations/Quasi-Test
i. Whether the activity regulated has a substantial effect on ISC?
1. Can be a small intrastate activity having, in the aggregate, substantial affect
2. If Cong has a rational basis for believing there is an interstate effect from an
intrastate activity (even non-econ), it may regulate it
a. This may be determined from cumulative impact (see Raich)
3. Consider: economic or non-economic (see Lopez for more)
a. If non-economic, indication it will not have a substantial effect
i. Must make a strong showing that it has one
4. As long as Cong has the power to do the end, it may use any rational means
ii. Note: 10th A will not invalidate any law valid under the CC
b. Under CC Congress May Regulate:(Lopez)/Quasi-Test
i. Note: these are the easy cases the substantial effect test comes into play usually
when it is intrastate/non-economic
ii. Use of channels of interstate commerce
1. includes prescribing rules of conduct to ISC activities
iii. Instrumentalities of ISC
1. includes power to protect them, e.g. safety standards
2. Includes power to regulate persons and things
3. And power to regulate intrastate if necessary for protecting interstate activities
iv. (via NP) any economic activity that has a substantial relationship with ISC or that
substantially affects ISC
1. Proper test: whether the regulated activity substantially affects ISC
c. NLRB V JONES & LAUGHLIN STEEL (US 1937) pg. 125
i. [National Labor Relations Act; D fired employees for engaging in union activities
which ran against the NLRA so NLRB ordered them to re-hire]
13

ii. Issue: Can Congress regulate manufacturing activity that significantly affects interstate
commerce?
iii. Principle: the power to regulate commerce is the power to enact all appropriate
legislation for its protection and advancement
iv. Test: if the activity has substantial effects on interstate commerce then it may be
regulated under the commerce clause
1. Effect on commerce, not the source of the injury which matters
2. So if the act burdens, obstructs, or otherwise substantially effects commerce,
then it may be regulated
v. Stoppage would have immediate, direct, and paralyzing effect upon interstate
commerce.
d. UNITED STATES V DARBY (US 1941) pg. 127
i. [Law: Fair Labor Standards Act; D lumber manu - was ignoring minimum wages &
maximum hours portions]
ii. Overrules Hammer; rejects the idea that the 10th A limits Congs powers
1. 10th A just states a truism that all is retained which has not been surrendered
2. So as long as the law is w/I Congs power, it is C
iii. Congress often uses interstate shipment of goods to justify CC regulation of labor
conditions and then regulation of those goods
iv. Congress has the plenary power to regulate anything that affects interstate commerce.
This kind of unfair competition falls within the power of Congress.
v. Note: The federal commerce powers extends to purely intrastate transactions; the
effect on interstate commerce, not the location of the regulated act, is the basis for the
exercise of federal power.
vi. Ends & Means Test: As long as Cong has the power to do the end it can use
appropriate means (even if not enumerated) (McCulloch)
1. CC power not changed when Ss use or dont use their own power
e. WICKARD V FILBURN (1942) pg 130
i. [Farmer (small) exceeded his wheat quota (ate the excess didnt sell it)]
ii. The power to regulate commerce includes the power to regulate commodity price and
practices.
iii. Aggregation Principle Test: taken together, will the small activity of many have a
substantial effect on interstate commerce?
1. If yes, the individual acts may be regulated under CC
f. US V LOPEZ (US 1995) pg. 136
i. [Law: sec 922q (Gun-Free School Zones Act), D argued un-C]
ii. Lopez was charged under the Act which made it a federal offense for a student to carry
a gun onto school property.
iii. Carrying a gun to school has no effect on interstate commerce, and is purely a local
activity.
iv. Categories of Regulation (see above)
v. Non-economic activity vs economic (can really manipulate this arg)
1. w/ economic activity, more noticeable effect on commerce, reg ok
2. w/ non-economic there isnt really a substantial effect, so regulation improper
vi. Economic Activity quasi-threshold (EE)
1. Activity being regulated must be properly characterized as economic in nature,
OR
2. Regulation of activity must be an essential part of a larger regulation of
economic activity
vii. Substantially effects/substantial relationship ISC
1. Ct will consider (but these arent dispositive):
14

g.

h.

i.

j.

2. Jurisdictional nexus: act should specify where/in what cases this could be
brought
3. Congressional findings: data on the impact on economy
viii. Analyzing Lopez
1. Two part test ((1)economic, (2) substantial affect)
2. Two different perspectives on substantially affects (1. Nature, 2. actual
relationship with ISC)
a. So absence of economic activity suggests no relationship, but doesnt
mean fails CC just less deferential
ix. Dissent
1. Aggregate substantial effect
2. Guns violence detrimental effect on education bad workforce!
US V MORRISON (US 2000) pg. 144
i. [Law: Violence Against Women Act 42 USC sec 13981; Created a federal civil
damage remedy; Supported by 38 + states (actively)]
ii. H: Cong cannot regulate a noneconomic activity by finding that (cumulatively) it has a
substantial effect on ISC (Chemerinsky). Gender motivated crimes of violence are not
economic activities. Congress may not regulate noneconomic, violent criminal conduct
based solely on that conducts aggregate effect on interstate commerce. Constitution
requires a distinction between what is truly national and what is truly local.
iii. Maj: no substantial effect on commerce (too attenuated)
1. Even though Ss like it, this is un-C regulation & Ss cant just decide to get rid
of their duty to provide legal remedy b/c more convenient
2. Gov argued effects: restricts travel, interstate employment, etc. similar to
Atlanta Motel)
iv. Non-economic b/c interaction b/t people
GONZALES V RAICH (US 2005) pg. 120
i. [CA medical marijuana act coming into conflict w/ Controlled Substance Act (Fed) I
over possession (not sale)]
ii. Residents wanted to use marijuana for medicinal purposes, as permitted by state law.
iii. Distinguishing: large federal statute not just a clause of it
iv. Cong can regulate intraS activity that is not itself commercial (Wickard!)
1. Doesnt matter if the law ensnares purely intraS activity
2. Regulated activity as a whole is economic
3. The home growth of marijuana would substantially affect the nationwide
market for marijuana.
v. Scalia N&P concurrence (see above)
vi. Dissent: states as laboratories decision stifles S choice (124)
NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS (US 2012) pg. 157
i. Congress passed ObamaCare.
ii. H: Act is not justified under the commerce clause.
1. The act creates commerce, essentially, by regulating inactivity into activity; it
summons or creates commerce. Cant make people buy stuff.
Other areas commonly regulated by CC
i. Criminal law
1. Perez v. United States (1971) pg. 135
a. [loansharking enforced by threats of violence]
b. Even though activity intraS, it directly affects ISC
ii. Environmental Law
iii. Civil Rights
15

1. Reason: b/c they wanted to regulate private conduct & 14th only allowed them
to regulate state/public
2. Heart of Atlanta Motel v. US (1964) pg. 133
a. [Motel refused to serve blacks]
b. Discrimination burdens ISC, so can be regulated
c. Analysis:
i. Whether Cong had a rational basis for finding that racial discrim
by motels affected commerce
ii. If it had such basis, whether the means selected are reasonable
and appropriate
3. Katzenbach v. McClung (19640 pg. 850
a. [Restaurant bought a lot of OOS food, refused to serve blacks]
b. Burden on ISC to force blacks to go elsewhere

16

4. FEDERALISM LIMITS on Congress (10th A & 11th A)

a. SEE FEDERALISM
b. Values served by protecting state interests
i. Decreasing the likelihood of federal tyranny
1. Concern with consolidated and expansive power
2. Today: judicial review is seen as the best check against tyranny
ii. Enhancing democratic rule by providing gov closer to the people
1. The smaller the electorate, the more responsive the official must be
2. Concern: special interests capturing small/local gov
iii. Allowing states to be laboratories of new ideas
1. Raich
2. Garcia
th
5. 10 AMENDMENT
a. Tenth Amendment
i. 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.
ii. Big Questions
1. Is it a judicially enforceable limit on Congresss powers?
a. e.g. can laws be un-C for violating 10th A?
2. Should the court even enforce this? Or leave it to political process?
iii. Approach 1: the A is a reminder that Congress can only legislate if it has authority
1. Weak 10th A (a fed law is not un-C if it violates 10th A, but could be invalidated
as exceeding Art 1 powers)
iv. Approach 2: A protects state sovereignty from intrusion
1. Strong 10th A: fed laws intruding in this zone are un-C
b. Cong direct regulation on S conduct
i. Generally applicable laws: Make S subject to laws other entities are subject to
presumptively valid (Garcia)
ii. Commandeering (Cong cannot do this): Cong co-opting S regulatory system to fulfill
fed policy
c.

d.
e.

f.

iii. Authorize people to sue Ss in Fed Court 11th A constraint

Coyle v. Oklahoma (1911) pg. 165
i. [Cong tried to select where Oklas capital was going to be]
ii. There are state powers beyond the control of Congress (like locating the capital)
iii. The power to locate its own seat of government and to change the same are
essentially state powers beyond the control on Congress.
U.S. v. California (1936) pg. 165
i. S power is diminished to the extent of power grants to Cong by C
ii. Rejected railway as a state public function
New York v. U.S. (1946) pg. 165
i. [Fed tax on NYs sale of mineral water from S owned springs no united opinion; but
Fed law prevailed; no S immunity]
ii. Since anyone could profit from water sales (not Ss uniquely), its okay to tax
NATIONAL LEAGUE OF CITIES V. USERY (1976) pg. 166 OVERRULED by Garcia
i. [Fair Labor Standards Act extending min & max hour and wage provisions to STATE
gov employees]

17

ii. The Act will impermissibly interfere with the integral state functions og these bodies,
hence, significantly altering or displacing their ability to structure employer-employee
relationships.
iii. The activities Cong trying to regulate are typical of those performed by state & local
governments (violates S sovereignty/existence)
iv. hold that so far as the challenged amendments operate to directly displace the States
freedom to structure integral operations in areas of traditional gov functions, they are
not within the authority granted Congress by CC
g. GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY (1985) pg. 167
i. [Municipal transit authority subject to FLSA standards]
ii. Reason for overruling Usery
1. A rule of S immunity turning on whether a particular gov function is integral
or traditional is unworkable
2. S sovereign interests more properly protected by procedural safeguards
inherent in the structure of the federal system (e.g. elections)
iii. C imposes no judicially enforceable immunities for states from generally applicable
federal laws
h. NEW YORK V. UNITED STATES (1992) pg. 170
i. [federal Low-Level Radioactive Waste Policy Amendments Act of 1985; required Ss
to provide for disposal of waste generated w/I their borders]
ii. Take title sanction, providing that a state that failed to provide for the disposal of all
internally generated waste by a particular date must take title to the waste and become
liable for all damages suffered by the wastes generator or owner.
iii. Cong may not simply commandeer the legislative processes of the Ss by directly
compelling them to enact and enforce a fed regulatory program
1. Cong cant require the Ss to govern according to Congs instructions
2. b/c: muddles authority & fosters lack of political accountability
3. But:
a. Congress can set standards
b. Can also attach conditions to funding
iv. Cong can regulate ISC (via CC) directly, but not S govs regulation of ISC
v. where Cong exceeds its authority relative to the Ss, the departure from C plan
cannot be ratified by the Consent of S officials
i. Printz v. United States (1997) pg. 175
i. [S exec branch law enforcement at issue, can they be compelled to enact handgun
background check policy?]
ii. Cong cant necessarily impose regulatory responsibilities w/o Ss consent
iii. Cannot force state officials to enact programs. Congress cannot circumvent the
autonomy of the states to enforce regulation by conscripting State Officers directly.
iv. Extending from state legislatures to state executive branch officials.
v. SOP arg: rested executive power in local law enforcement
vi. Testa case: Court held that state courts must apply federal law where appropriate, but
didnt hold that states have to administer federal law (141)
vii. Dissent:
1. Cong can impose affirmative obligations on exec & judicial officers of the state
government and ordinary citizens
j. Reno v. Condon (2000) pg. 178
i. [fed law limiting commercial vending of personal data by Ss]
ii. Restraints on state contractors to resell ID.
18

iii. The law doesnt require the Ss in their sovereign capacity to regulate their own
citizens law regulates them like owners of databases (doesnt require enactment of
any laws or regs)
1. It was a generally applicable law
2. It prohibited conduct, wasnt an affirmative mandate (distinguishes NY &
Printz)
6. 11th AMENDMENT:
a. What it does: bars suits against state governments without their consent both by their own
citizens and by citizens of other states
i. Adopted b/c of Chisholm v. Georgia (1793) pg. 179
ii. Not explicitly about state sovereignty
iii. Limits means by which Cong can enforce regulation of Ss that is otherwise w/I its
power
b. The judicial power of the US shall not be construed to extend to any suit in law or equity,
commence or prosecuted against one of the US by Citizens of another State, or by Citizens or
Subjects of any Foreign States.-External Restraint on the Commerce Power (10th)
c. Hans v. Louisiana (1890) pg. 179
i. 11th applies to cases w/ fed Q jurisdiction, and bars suits by citizens against their own
Ss (in Fed Ct)
d. Exceptions
i. Relevant S officials
1. EX PARTE YOUNG (1908) pg. 180: Can bring suit against relevant S official for
injunction or declaratory relief
2. Edelman v. Jordan (1974) p. 180: can bring suit for prospective injunctive
relief against officials
ii. Cong may waive 11th immunity in certain cases
1. See Individual Rights ENFORCEMENT POWER
2. Fitzpatrick v. Bitzer (1976) pg. 180
a. When cong is legislating pursuant to 14th A, Cong may abrogate 11th A
immunity in any way it sees fit
b. Order of provisions
3. Penn v Union Gas (1989) pg. 180
a. Cong can abrogate 11th A immunity when legislating under CC
(overruled by Seminole)
e. SEMINOLE TRIBE OF FLORIDA V FLORIDA (1996) pg. 180
i. [Law: Indian Gaming Regulatory Act (CC & NA clause) Not generally applicable
directly targeted at S behavior]
ii. Authorization of suits by tribes against states in federal courtNONONO
iii. Court may not use Art. I, sec 8 to abrogate states power
iv. S must consent to be sued (CC cant grant jur w/o consent)
1. Overruled Penn
2. Does not overrule Fitzpatrick (If its 14th Amendment, abrogate okay)
v. Order of provisions: all things being equal, we read subsequent provisions as
modifying the original
vi. Dissent: req that cong make plain statement of intent to abrogate is a sufficient check
no need to do this
f. ALDEN V MAINE (1999) pg. 181
i. [Law: Fair Labor Standards Act generally applicable; lawsuit brought in S court]
State probation officers suing Maine seeking damages for unpaid overtime in Maine
State Court.
ii. Immunity extends to suits against states brought in state courts
19

1. Justified by Cs structure (b/c Ss are sovereign) & the universal belief in

immunity from suits (historically)
a. Ss would not have consented to unduly restrictive changes in
sovereignty when they agreed to the C
iii. More 10th A than 11th (renders 11th irrelevant basically)
g. FED MARITIME COMM. V. SOUTH CAROLINA PORTS AUTHORITY (2002) Pg. 184
i. [cruise ship cos administrative complaint, heard before Fed Maritime Commission]
ii. Immunity extended to adjudications w/I federal administrative agencies
iii. Rationale: dual sovereignty
iv. Dissent: now, agencies must get bigger so they can independently investigate stuff
rather than relying on administrative complaints
h. Central VA CC v Katz (2006) pg. 186
i. Bankruptcy power is diff so doesnt stop Cong from abrogating privilege
1. Grant of leg authority to Cong and also authorized limited subordination of S
sovereign immunity in bankruptcy arena

20

7. TAX & SPENDING POWER (art 1 8, cl. 1)

a. Generally
i. Cong can use these to regulate S action unrelated to taxing
ii. Spending power: grant $ w/ conditions to get leverage
iii. Using these powers is more costly to Cong than CC mandates & Ss benefit
iv. If coercive + infringing on S sovereignty, probably bad and not allowed
b. The Congress shall have power to lay and collect taxes, duties, imposes, and excises, to pay
the debts and provide for the common defense and general welfare of the United States.
c. Purposes & Effects analysis
i. Effects is insufficient: difficult to determine what inference can be made
ii. Purpose analysis: what is Cong doing here?
1. Taxes always impact social policy
2. Almost impossible to separate revenue & social policy
d. Tax Power
i. Limited by specifications in the clause (and cannot violate another C prohibition)
ii. Power to tax to provide for common defense & general welfare
e. Minor Tax Cases
i. Increase not invalid
1. Veazie Bank v. Fenno (1869) pg. 189: [increase on circulating bank notes]
Cong has power to regulate bank notes, so has latitude in increasing taxes
2. McCray v. United States (1904) pg. 189: [increase in tax on margarine] once
Cong decides to tax sth, it may impose the burden as it wishes
ii. Other motives dont invalidate otherwise valid tax
1. U.S. v. Doremus (1919) pg. 189: [Narcotic Drug Act; tax on opium] act cant be
declared invalid b/c another motive may have helped its passage
iii. Liquor tax (very very big) as penalty: U.S. v. Constantine pg. 190
iv. Gun tax isnt a penalty: Sonzinsky v. U.S. pg. 191
f. BAILY V DREXEL FURNITURE (1922) pg. 187
i. [Law: child labor tax law taxes on stuff produced by child laborers]
ii. Huge burden from child-labor employers.
iii. Child Labor Tax Act is actually a penalty in disguise.
iv. Ct: this is a penalty, not a tax (social policy regulation really)
v. Effects analysis:
1. Primary effect: revenue generation (gov)
a. Ct: but it will impose on S sovereignty!
2. How much $ is being raised?
a. Ct: b/c it is severe/really high, it seems to be an effort to destroy the biz
or make them choose
b. **If a tax is so high as to force an entity to make significant changes
then the tax is probably meant to regulate social policy
c. But if a tax doesnt raise much revenue, is it really a tax?
d. THUS: it is easy to argue taxes are really regulating social policy
g. US v Kahriger (1953) pg. 191
i. [Tax on gambling & register w/ IRS if a bookie (criminal law reg)]
ii. Strong evidence that really a social policy regulation
iii. Ct:** just b/c a tax deters activity doesnt mean its invalid cts cant limit the power
unless it has penalty provisions outside Congs tax power**
iv. Ct can only invalidate a tax if it finds clear things indicating it isnt actually a tax
v. Unless there are PENALTY provisions extraneous to any tax need, courts are without
authority to limit the exercise of the taxing power.
h. National Federation of Independent Business v. Sebelius (US 2012) pg. 193
21

i.

j.

k.

l.
m.

n.

i. H: because the requirement that certain individuals pay a financial penalty for not
obtaining health insurance may reasonably be characterized as a tax. Payment is
collected solely through the normal means of taxation.
Spending Power
i. SP isnt limited by direct grants of leg power in the C so lots of leeway (196)
ii. Needs to be used for general welfare
1. Deference to legislature b/c taxing & spending clearly within their authority
2. General welfare is not static
iii. Dole Test determining whether spending power reg + condition is C
1. Spending must promote general welfare
a. court will be deferential
2. Congress must make a clear statement of the funding condition so states can
make informed decisions
3. There must be a nexus between the condition and government interest
4. Cannot be in conflict with other C provisions
US V BUTLER (1936) pg. 197
i. [Agriculture Adjustment Act of 1933; $ from agriculture sector and paid to farmers
who agree to limit their production]
ii. H: The act was not a valid exercise of the spending power for general welfare.
iii. Use spending power for general welfare (so long as it doesnt conflict with other C
provisions)
iv. Ct chooses the broad Hamilton reading (confers separate & distinct powers)
1. But AAA still invalid b/c Ks are outside Cong authority
a. Goes too far & invalidates state power
Charles C. Steward Machine v. Davis (1937) pg. 200
i. [Social Security Act, unemployment comp, incentives to induce S laws complying w/
Fed standards] Act imposed payroll tax on employers of eight or more.
ii. The federal government merely offered an inducement to states to adopt
unemployment compensation plans to meet the needs of the people.
iii. The tax & credit werent tools of coercion, so didnt violate S sovereignty
iv. Motive/temptation coercion
Helvering v. Davis (1937) pg. 202
i. [SSA old aid benefits provision; taxes on employers/employees to pay for it]
ii. No abuse of power b/c problem is national & non-uniform laws cant deal with it
SOUTH DAKOTA V DOLE pg. 204
i. [Federal National Minimum Age Drinking Act for 21 yo drinking age; Act allowed
gov to withhold 5% of federal highway funds from Ss not in compliance to
encourage change; Regulatory condition attached to spending measure]
1. Implicated 10th & 21st As
ii. Dole Test (see above)
1. Direct relationship b/t drunk driving & highway funds (promoting safe
interstate travel)
2. General welfare
iii. SP cant be used to induce Ss to engage in activities that would be un-C
iv. Dissent: is the spending req/prohibition a condition or regulation? Difference turns on
whether req specifies how $ should be spent
National Federation of Independent Business v. Sebelius (US 2012) pg. 209
i. Congress exceeded its spending power by providing that a State lose all Medicaid
funding as penalty for noncompliance with the new conditions of the Medicaid part of
ACA.
22

ii. The Condition is overly coercive. No way state can choose to forgo all funding. The
expansion was unforeseeable by the States when they first signed onto Medicaid, and
the threatened loss of funding is so large that the States have no real choice but to
participate in the Medicaid Expansion.

23

8. WAR & FOREIGN POWERS

a. War Power Constitutional basis
i. Art 1 8, necessary & proper clause
b. WOODS V CLOYD W MILLER CO (1948) pg. 399
i. [Housing & Rent Act of 1947; whether the acts regulation of rent based on the war
powers is unconstitutional]
ii. The war power does not necessarily end with the cessation of hostilities
1. The power includes the power to remedy evils that have occurred as a direct,
immediate result of the war
iii. Since the war effort contributed heavily to the housing deficit, Congress has the power
even after the war to act to control the forces that a short supply of the needed article
created.
c. Treaty Power
i. Art 2 sec 2 (exec treaty power)
ii. Art 6 supremacy (treaties trump S law)
1. Not limited by 10th A and S sovereignty
iii. Reason power is with Pres
1. Head of state (one person)
2. Easier to leave dealing w/ foreign powers with him
a. Congress still has to ratify
iv. Layering: international obligations + domestic law
v. While powerful, constrained b/c the law-making is tied to having a treaty
d. MISSOURI V HOLLAND (1920) 401
i. [1918 Migratory Bird Treaty Act w/ UK/Canada to protect national interest in birds]
ii. Missouri sued to prevent Holland, a game warden, from enforcing the Act.
iii. There may be cases when a treaty is valid where a similar act would not be
iv. If treaty is valid, then N&P clause allows an appropriate statute to execute it
v. Treaties are supreme Law of the Land
1. Thus state sovereignty & 10th A cannot limit it
vi. Cannot reasonably rely on the states in this instance because birds migrate
national/state borders.
e. Reid v Covert (1957) pg. 403
i. [UN & mil jur over civilian dependents of Americans overseas; American courts
operating overseas Q]
ii. Treaties cant be un-C (but invalid if run into C prohibitions)
iii. There seems to be no way for Ss to object to treaties
1. Treaties imply a very strong national interest
2. Necessary and Proper to carry out US obligations under the international
agreements.
f. Foreign Affairs Power
i. Ss must yield to international relation issues
ii. Q: is there a general foreign affairs power?
1. Arg for it:
a. Penumbra: structure & terms of C lead to the power
i. Intl powers + N&P
b. Policy: if all the Ss have totally different policies, chaotic
2. Arg against
a. There are some issues that are international but only affecting a few
states (like immigration)
i. Some S. interests may be more pressing (localized)
b. If authority not used, then S can do it (until against Fed reg)
24

iii. Perez v. Brownell (1958) pg. 404

1. Congress has the power to regulate foreign affairs b/c this is necessary for a
national gov to function properly
iv. Zschernig v. Miller (1968) pg. 219
1. S law cannot interfere w/ foreign policy; great potential for disruption or
embarrassment

25

LIMITS ON STATE AUTHORITY

1. Generally
a. Authority to Regulate (spectrum)
i. Federal Exclusivity: Cong has exclusive power to regulate even if Cong hasnt used it
(latent power) S cant reg
1. E.g. Dormant CC
ii. Federal Pre-Emption: congress has regulated and trumps
iii. Congressional consent: Cong has/may have exclusive authority but tells Ss they can
regulate that subject
1. Congress can waive their exclusive power
iv. Non-exclusivity: both S & Fed have regulatory authority unless S. contradicts Fed.
1. E.g. Unsuccessful dormant CC
v. State Exclusivity: Cong doesnt have authority to regulate
b. The Limits
i. Dormant CC (Art 1 sec 8, cl. 3)
1. Applies when Cong has not acted OR fed law doesnt pre-empt state law
2. Gives Cong space in which to operate
ii. Privileges & Immunities Clause (Art IV sec 2)
iii. Pre-emption (Art. VI) + CC (Art 1 sec 8, cl 3)
1. Requires existing regulation & inconsistency b/t S & fed reg
c. Exception - Consent
i. Congress may waive its exclusivity
ii. Can consent to state regulation (even after Ct has declared S action to violate, e.g.
DCC) so long as it doesnt violate a different C provision
2. DORMANT COMMERCE CLAUSE
a. NOTE: if there is a federal statute, begin with pre-emption
i. But always do DCC analysis b/c could fail on PE
b. Generally
i. Derived from the negative implication of CC limit on S/local reg
ii. Underlying idea: in some cases, the existence of fed authority in an area should
foreclose Ss ability to regulate even in absence of fed action
iii. If congress consents to S reg in that area, then DCC doesnt prohibit it (assumes it
doesnt violate a diff C provision)
c. Purpose/Reason for existing:
i. National economy: We dont want Ss meddling in ISC
ii. Political cohesion: part binding whole is bad
iii. If S is allowed to reg in areas where Cong has power, and then Cong decides it wants
to reg there, problems w/ infrastructure, policy, etc.
iv. Practical necessity
d. Underlying Principles behind DCC
i. DCC reinforces democracy by supplying virtual representation for OOS Southern
Pacific v. Arizona (1945) pg. 189
ii. economic unit is the nation, Ss arent separable econ units Hood & Sons v. Du Mond
pg. 190
iii. DCC limits import-export w/I US, b/c Import-Export clause only about foreign
Woodruff v. Parham (1869) 189
iv. people of the Ss must sink or swim together Baldwn v. GAF (1935) pg. 189
e. Historically
26

i. GIBBONS V OGDEN (US 1824) part 2! Pg. 223

1. Tax Power is not the same as the CC only Cong authorized to regulate
interstate commerce, if S do this, they are using Congs power
2. Inspection Laws: just b/c they impact commerce doesnt mean Ss have CC
power, they are based on police power
3. CC text (negative implication): to regulate implies full power over the thing
to be regulated, which means it excludes the action of others
4. Nature/Category DCC Framework 1
a. Nature of the regulation: police power or commerce?
b. If commerce, then DCC implicated; if PP, then S can reg
c. Problem: easy to frame regs in these terms & usually blurry lines
ii. Willson v. Black Bird Creek Marsh (1829) pg. 226
1. [Del. Law allowing D to build a dam across a navigable stream; ct rejected
DCC]
2. As there was no federal law that dealt with this situation, nor did the state law
violate the DCC, ite state law is valid
3. If the act is for general welfare (police power) & doesnt collide w/ Fed
powers, then it is reserved for the S
iii. COOLEY V BOARD OF WARDENS (US 1851) pg. 228
1. [Penn 1803 law RE engaging local pilots in harbor; 1789 fed law saying
existing S laws will regulate pilots]
2. Commerce has many different subjects, seems more logical that some may be
regulated exclusively by Congress and that the Ss can regulate others
3. Test: Local interest v. National Interest. If the local interest outweighs the
national interest and the regulation does not discriminate against interstate
commerce, the states are allowed to regulate that subject of commerce.
a. If it appears that the state regulation has placed a burden on interstate
commerce, the Court has drawn the line and refused to hold the state
regulations valid even though local subject may be involved
4. Subject DCC Framework 2
a. Is this a subject that should be left to exclusive Fed authority?
b. National vs local interest (S reg okay if local)
c. Problems:
i. Inefficient
ii. Malleability issue as well you can frame it differently
5. Cong can consent to regulation of subject by states
iv. Wabash, St Louis v. Illinois (1886) 231: reg of IS shipments were national, not local
v. Direct/Indirect Effect on ISC DCC Framework 3
1. Smith v. Alabama (1888) 231: safety reg had only indirect impact on
commerce, so S can reg
2. Di Santo v. Pennsylvania (1927) 231: S. law direct burden, invalidates
a. License fee on travel agents
3. MODERN DCC
a. Initial Question: whether state reg discriminates against interstate commerce
i. Idea: S cant regulate against common good
b. Determining Discrimination Tests (always run through both)
i. Invalid per se (if yes) diff is in evidence & reasoning
1. S. reg discriminates facially
2. Reg is facially neutral but discriminatory in fact
a. Upon analysis of purpose/effects
27

b. Proof of protectionist purpose or substantially discriminatory impact is

sufficient to establish discrimination (Chemerinsky)
c. Factors (Chem), likely discriminates if:
i. It excludes virtually all OOSers
ii. It imposes costs on OOSers, in-staters dont have
iii. Law is motivated by protectionist purpose
ii. If not discriminatory, then use balancing test
iii. Pike Balancing test:
1. Regulation does not discriminate against ISC, but burdens ISC
2. Test: an even-handed regulation is valid unless the burden on ISC is clearly
excessive relative to putative local benefits
a. Problem: usually burden and benefit are apples and oranges, so must
balance two entirely different things
ii. Note: least restrictive alternative only discussed when the court finds a law
discriminatory, isnt mentioned usually in evaluating nondiscrim laws
c. Facially discriminatory S laws (not bright-line categories)
i. Facially Discriminatory Laws:
1. Direct ban on import of OOS goods/services or export of local g/s
(protectionist/hoarding)
a. Hoarding only allowed if S has a valid purpose that cannot be achieved
in a less discriminatory way (Maine v. Taylor)
b. Protectionism limiting access to local markets by OOSers
2. Differential fees: OOS pay more than in S
a. Facially neutral fee + rebate for inS (invalid)
b. Exception: fee is to compensate for costs already born by instate
3. Home-processing req: S requires OOS goods to go through inS processing
a. Laws requiring use of local business!
4. Reciprocity requirements
ii. PHILADELPHIA V. NEW JERSEY (1978) pg. 233
1. [1973 NJ law prohibiting importation of trash/waste from outside state]
2. Created a direct ban on export of in-S services
a. Waste disposal = resource
b. NJ: ok goal, bad means; cannot isolate the S from national economy
3. The question: whether the law is basically a protectionist measure, or whether
it can fairly be viewed as a law directed to legitimate local concerns, with
effects upon interstate commerce. (if latter, then valid)
4. Regardless of whether the NJ legislature was trying to protect the States
environment or its residents pocketbooks through lower disposal costsboth
legitimate state interestssuch purpose may not be accomplished by
discriminating against waster from outside the state absent legitimate reasons,
apart from its origin, for treating it differently.
5. Ways to analyze the case
a. Traditional (precedent, etc.)
i. NJ is really hoarding a desirable resource
ii. Quarantine laws dont apply b/c NJ still allowing in-S waste
b. Economic
i. Beneficiaries: in-S waste producers & OOS land fills
c. Political
i. Representation reinforcing review
1. Part cant control whole (economic integration of Ss
more important)
28

iii.

iv.

v.
vi.

vii.

viii.

ix.

2. NJ undermines integration of national economy

ii. However: OOSs can lobby, contribute to campaigns, etc. so not
powerless
6. Dissent: law directed at public welfare, okay!
Hughes v. Oklahoma (1979) NOT IN BOOK
1. [Okla law forbidding transport of minnows]
2. S could have used nondiscrim alternatives and didnt
3. Articles of commerce (including animals) cannot be limited to citizens of one S
to the exclusion of another S
4. Discriminatory laws invoke the strictest scrutiny of any purported legitimate
purpose
Granhom v. Heald (2005) pg. 237
1. [MI and NY liquor-licensing schemes that imposed regulatory burdens on the
abilitiyes of out-of-state wineries to sell wine directly to customers in those
states, but exempted in-state wine distributors from those regulations.]
2. H: Evident that the object and design of these statutes was to grant in-state
wineries a competitive advantage over wineries located beyond the State
borders.
Oregon Waste Systems v. Department of Environmental Quality (1994) pg. 238
1. [higher tax on OOS waste than IS waste] discriminatory
West Lynn Creamery v. Healy (1994) pg. 239
1. [tax on all, but rebate to IS creameries]
2. Equivalent to higher tax; discriminatory
3. Cannot tax all but then rebate to in-state, which reduces costs for them only
4. States may not benefit in-state economic interest by burdening out-of-state
competitors
Camps Newfound v. Town of Harrison (1997) pg. 240
1. [property tax exemption to charities incorporated in the state, but denied
exemption to those who benefited out-of-state residents exclusively]
2. Effectively an export tariff by taxing biz that principally serve OOSers
3. Since profit-making enterprises would be barred from such discrimination, so
should non-profits.
DEAN MILK CO. V. MADISON (1951) pg. 242
1. [Madison ordinance requiring all milk to be pasteurized w/I 5 miles of town
center, Dean pasteurized his milk in Ill. wanted to sell it in Madison]
2. Madison argues that the ordinance was for public health.
3. It doesnt matter if reg also discriminates against locality (same S)
a. As long as OOS discriminated against, invalid
4. One state in its dealings with another state may not place itself in a position of
economic isolation.
5. Madison is erecting an economic barrier protecting a major local industry
against competition from without the State, Madison plainly discriminates
against interstate commerce
6. Invalid because it is not essential for public health and discriminates against
out-of-state commerce (Madison had alt methods for inspections)
C & A CARBONE, INC. V. CLARKSTOWN 1994 pg. 244
1. [Clarkstown wanted new solid waste transfer station, amortized it w/ a private
contractor & enacted an ordinance to ensure guaranteed amount of waste to
station P wanted to ship waste out-of-state]
2. The ordinance discriminates against out of state biz invalid
a. Deprives out-of-state businesses access to a local market
29

b. doesnt matter if local biz also subject to ordinance

c. city had alternatives
3. Rule: State and local governments may not use their regulatory power to favor
local enterprise by prohibiting patronage of out-of-state competitors or their
facilities.
4. Discrimination against interstate commerce in favor of local biz or investment
is per se invalid, unless the S. can demonstrate under rigorous scrutiny that it
has no other means to advance a legit local interest.
d. Home Processing Requirements
i. Court has repeatedly invalidated state requirements that products be inspected,
processed or treated inside the state before they may be shipped out-of-state
ii. Such statutes generally single out by their terms in-state businesses and, on the basis of
geographical location, give them a preference over potential out-of-state competitors.
e. Permissible Facially Discriminatory Laws
i. UNITED HAULERS ASSN V. ONEIDA-HERKIMER SOLID WASTE (2007) pg. 246
1. [flow control ordinance, ordinance requiring haulers to bring waste to facilities
owned by a S created public-benefit corp]
2. H: Disposing of trash has been a traditional government activity for years, and
laws that favor the government in such areasbut treat every private business,
whether in-state or out-of-state, exactly the same---do not discriminate against
interstate commerce for purposes of the Commerce Clause.
3. Rule: laws that favor the government in areas where they traditionally have
power to regulate, but treat private business (in state and out of state) the same,
do not discriminate against interstate commerce.
a. Private entities are not the same as public entities!
b. Gov entity more likely motivated by legit objectives distinct from
simple economic protectionism
ii. Maine v. Taylor (1986) pg. 238
1. [ban on import of OOS baitfish]
2. Ban had legit environmental purpose
f. Facially Neutral Laws Discriminatory
i. BALDWIN V. G.A.F. SEELIG, INC. (1935) pg. 257
1. [NY Milk Control Act of 1933 put min price on milk that all had to follow;
Seelig got cheaper milk in VT, NY wouldnt license him to sell it]
2. H: NY projecting its legislation into Vermont; cant do that.
3. Note: it is difficult to separate police power/public welfare benefits &
economic benefits (e.g. ISC impact)
4. The effect of the act is to suppress competition this is a direct effect
a. Police power arg for it is a smoke screen
b. Almost anything can be framed in terms of economic welfare
5. Rule: police power may not be used with the aim and effect of establishing an
economic barrier against competition with another state
6. Similar to strong 10th Amendment argument; The regulation of the national
economic crisis is Congress job.
ii. H.P. HOOD & SONS V. DU MOND (1949) pg. 258 (Baldwin 2)
1. [NY law RE milk plant licenses w/ a clause curtailing volume of interstate
commerce; Hood (MA) wanted a 4th plant in NY (had 3) & Commissioner said
no]
2. The Ss are not separable economic units
3. Statute as applied violates CC
4. The effects analysis has more relevance that the intent analysis.
30

iii. HUNT V. WASHINGTON STATE APPLE (1977) pg. 259

1. [NC law requiring US grade; hurt WA apples which used a diff & better grade]
2. Rule: When such state legislation comes into conflict with the Commerce
Clauses overriding requirement of a national common market, we are
confronted with the task of effecting an accommodation of the competing
national and local interest.
3. National common market law discriminates against WA & NC had
alternatives
a. Law stripped away the competitive and economic advantages.
iv. Bacchus Imports v. Dias (1984) pg. 260
1. [Haw law exempting Ss liquor tax from brandy made from local plants]
2. Any benefit conferred to local industry not granted to OOS industry is
presumptively invalid as discriminatory.
g. Facially Neutral laws Not Discriminatory
i. Exxon Corp v. Governor of Maryland (1978) pg. 261
1. [prohibition on producers of oil from operating retail service-stations in MD]
2. Only excluded some OOS actors (limited class)
3. Not discriminatory b/c Md doesnt produce oil (no local producers) and no
discrimination against OOS independent retailers
a. No barriers against flow of ISC
b. No added costs
c. No distinguishing b/t in-state and out of state
ii. MINNESOTA V. CLOVER LEAF CREAMERY CO. (1981) pg. 262
1. [Minn trying to protect environment by banning plastic milk cartons (but can
use pulpwood containers which Minn produces a lot of)]
2. Perhaps neutral reg + minor burden on ISC
3. Not protectionism, but even-handed regulation
4. Baldwin vs. Clover
a. Baldwin: sanitation + supply issue (nature of benefit more local)
b. Clover: environmental protection maybe more credible
i. Enviro benefit arg: very dispersed, so broad general benefit
5. Uses Pike balancing
a. Only invalid if burden clearly >> than legit purpose
h. Facially Neutral Laws w/ burden on ISC (Pike Balancing)
i. Pike v. Bruce Church, Inc. (1970) pg. 263
1. [home-processing req RE cantaloupes made processing really expensive for
P]
2. Invalid, creates balancing test (upheld unless the burden imposed is clearly
excessive in relation to the putative local benefits.)
ii. KASSEL V. CONSOLIDATED FEIGHTWAYS CORP. (1981) pg. 265
1. [Iowa statute prohibiting semi-trucks over 60 feet; many trucks are 65 ft; trucks
forced to either go around Iowa or use smaller versions]
2. When S is regulating for safety reasons, usually pretty high deference
a. But burden in this case is huge, safety benefits are marginal
3. If the regulation bears disproportionately on OOS, then less deference is due
the S legislative judgment
4. The state cannot constitutionally promote its own parochial interest by
requiring safe vehicles to detour around it.
5. Regulations impair significantly the federal interest in efficient and safe
interstate transportation.
31

6. Concurrence: the only evidence that matters is what lawmakers intended to do,
not the facts of litigation; Trying to benefit citizens to detriment of other Ss
safety.
iii. Southern Pacific v. Arizona (1938) pg. 270 (classic args raised against judicial review)
1. Train-length law was excessive & impeded nation-wide measures
2. Black: we dont have the means to do this (institutional competence)
3. Douglas: C legitimacy/separation fo powers
a. Not Cts place, this is a policy judgment
iv. Bibb. V. Navajo Freight Lines (1959) pg. 271
1. [very irregular truck mudflap requirement (diff from 45 states)]
2. S reg runs afoul of policy of free trade, so invalid (burden too high)
v. Lewis v. BT Investment Managers (1980) pg. 271
1. [law prohibiting local investment advisory biz ownership by OOS banks]
2. Invalid b/c prevents competition in local markets by OOS entities
i. Facially Neutral w/o burden on ISC Pike Balancing - valid
i. South Carolina State Highway v. Barnwell Bros (1938) pg. 270
1. [prohibiting trucks over X width & weight; sustained the law b/c highway is a
particularly local concern]
2. Protecting Public Safety/Protecting Public Health
ii. CTS Corp v. Dynamics Corp of America (1987) pg. 272
1. [Ind law RE control shares]
2. Not invalid b/c it equally effects OOS & IS
3. Benefits > burden
4. State strong interest in defining the attributes of shares in its corporations and
protecting shareholders.
j. Market Participant Exception
i. If S is acting as a market participant rather than market regulator, the DCC places no
restriction on its activities
1. State can favor its own citizens
2. States can also favor their own citizens in receiving benefits from gov
programs (e.g. for employment) (White v. Mass Council of Construction)
3. Limitation: S cannot attach conditions that would discrim against ISC
conditions that go beyond the initial participation (South-Central)
4. Theory:
a. private bizs can determine who they deal with, so Ss should too
b. CC doesnt place limitations on Ss refusal to deal w/ parties when it is
a participant in interstate market goods
c. Fairness recouping benefits from taxes!
5. May be vulnerable to other C challenges (e.g. P&I)
ii. S may not impose conditions that have a substantial regulatory effect outside of that
particular market
iii. Case-by-case analysis
iv. Participant vs regulator
1. As participant, S is doing whatever other private actors would do
a. Gov acts as buyer/seller of goods or services OR
b. Engages in a program of subsidies or other economic incentives to aid
IS business
2. As regulator, S is special (private cant do this)
v. SOUTH-CENTRAL TIMBER DEVELOPMENT, INC. V. WUNNICKE (1984) pg. 251
1. [Alaska had an IS processing requirement for purchasers of state-owned
timber, SC shipped elsewhere for processing; similar to home processing]
32

2. Market Participant Exception to DCC

3. Analogous to a private actor
a. Paradox: State still has political interest to favor local industry and the
state has incentive to collect most money for itself.
4. S can deal w/ whomever, but cannot impose any terms it wants
5. R: The state may not avail itself of the market-participating doctrine to
immunize its downstream regulation of the timber processing market in which
it is not a participant.
6. Dissent: this is a technicality, Alaska could do the same thing by a slightly
different process and it would be C

33

4. PRIVILEGES & IMMUNITIES (Art IV sec 2)

a. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the
several States.
b. Parallels DCC b/c restricts S action
i. Hybrid of federalism and rights doctrines
ii. PI
1. direct restraint on state action
2. requires discrimination
3. No Market Participant exception
iii. DCC
1. implied restraint
2. could just be burdensome on ISC
3. corps & aliens can sue under DCC
c. Privileges & Immunities analysis
i. Threshold: Whether the state has discriminated against OOSers w/ regards to privilege
& immunities it gives its own citizens
1. Is the interest sufficiently fundamental to the promotion of interstate harmony
so as to fall w/I the purview of the clause?
2. Does the regulation burden this interest?
ii. If yes, whether there is substantial reason for the difference in treatment
1. The discrimination bears a substantial relationship to the states objective
(Piper) Ct considers availability of less restrictive means
2. Non-residents must be shown to constitute a particular source of evil at which
the statute is aimed
iii. Intermediate scrutiny (hard to win)
d. Grant of rights
i. Focuses on the individual
ii. Protects a fundamental rights, like:
1. Constitutional rights
2. Important economic activities (e.g. right to earn a livelihood)
a. Includes protection from discriminatory fees
3. Generally: those rights sufficiently fundamental to the promotion of interstate
harmony (Camden)
e. Limitations
i. Only protects the rights a S gives its citizens
ii. No substantive rights component
iii. P must show S is discriminating against OOS in a way to undermine national unity
1. So only protects rights fundamental to nations unitary character
iv. Does not protect corporations
f. UNITED BUILDING & CONSTRUCTION TRADES COUNCIL V. CAMDEN (1984) pg. 274
i. [Camden passed ordinance requiring 40% of workers on public construction projects
be Camden residents; in accordance w/ S law; challenged on PI & DCC]
ii. If S cant do something constitutionally, then one of its cities cant either
1. Discrimination against locality necessarily discriminates against OOS
iii. Privileges & Immunities analysis (see above)
iv. Privileges & Immunities: those bearing upon the vitality of the nation as a single entity
is it sufficiently fundamental to the promotion of interstate harmony?
g. Supreme Court of New Hampshire v. Piper (1985) pg. 279
i. [S rule limiting bar admission to IS residents] violates PI!
ii. Practice of law is important to national economy
34

iii. PI doesnt preclude discrimination against non-res when (1) there is substantial reason
for diff (2) discrim bears a substantial relation to the Ss objective
5. PRE-EMPTION (Art VI Supremacy Clause)
a. Usually brought by regulated entities challenging the S reg
b. Derives from
i. Supremacy clause
ii. Legislative intent (what did Congress want to do with this law?)
1. Ct does not pre-empt lightly
2. Assumption is often against pre-emption
c. Policy issue
i. All about allocation of power
ii. Goal 1: ensure that there is room for state and local governance
iii. Goal 2: ability of the national government to achieve its objectives
d. Types
i. Express: Cong says it pre-empts S law
1. Q: does the S statute fall w/I the prempted area?
2. Must define the scope of what is pre-empted (often unclear)
ii. Implied
1. Field Pre-Emption/Total: Cong has pre-empted S reg over an entire
field/subject area (analysis varies based on the field)
a. Requires a clear showing that Cong meant to occupy the field
i. Ct will not infer Field in an area typically regulated by Ss
absent strong Cong showing of PE intent (Rice)
b. Big Q: how to do you define the field? Broad vs. Narrow
c. Indicators of field pre-emption
i. Scheme of Fed reg is so pervasive it crowds out Ss
ii. Fed interest is dominant/more important
iii. Object of the law & character of imposition (234)
d. Test: whether the action S asserts is regulated by the Fed gov
e. Considerations
i. Is it an area where Fed gov traditionally plays a unique role?
ii. Has Cong expressed PE intent in text or leg history?
iii. Would allowing S regs in the field risk interfering with
comprehensive fed regulatory efforts?
iv. Is there an important traditional S interest served by the law?
2. Conflict Pre-Emption/Partial
a. If fail on Field PE arg, use this
b. Indicators
i. Physically impossible for reg entity to adhere to both at once
ii. Some aspect of S reg frustrates Congs reg purpose
c. When dealing with conflicting regulatory standards (like Apple grades),
Q is: did Congress intend a floor, or exclusive reg?
e. Common Pre-emption Fields
i. Foreign policy
ii. Immigration
iii. Broad regulatory schemes
f. Rice v. Santa Fe (1947) pg. 286 (Field Preemption)
i. [whether Ss could regulate grain elevators licensed by fed gov? H: no, PEd]
ii. Big Q: what was the purpose of Congress?
iii. Presumption towards no PE if it is a traditional S area
35

iv. PE purpose may be shown from:

1. Being so pervasive it is reasonable to infer Cong left no room for States to
supplement the regulation, OR
2. The act touches a field in which the fed interest is so dominant to the federal
system that it precludes enforcement of S laws on the same subject
g. PGE V. STATE ENERGY RESOURCES (1983) pg. 281 (Field Preemption)
i. [Cal. Law prohibiting nuclear energy certification until disposal option found, PGE
sought declaratory judgment arguing Atomic Energy Act of 1954 pre-empted]
ii. If Fed completely occupies a given field (or portion of it), test is: whether the S
asserted right to act is in any way regulated by the fed gov
iii. PGE Args
1. Law falls w/I fed field
a. No, field is narrow (safety) S law is an economic reg
2. Conflict: fed purpose narrow enough to not conflict
3. Frustration of fed goal (field PE in disguise!)
h. Hines v. Davidowitz (1941) pg. 286 (Conflict Premption)
i. [PN alien registration law]
ii. Where Fed has enacted a complete regulatory scheme; Ss cannot, inconsistently w/
Cong purpose, conflict, interfere, curtail, modify or add on to the scheme
1. This applies to laws that complement the fed reg (same purpose irrelevant)
i. Florida Lime & Avocado Growers v. Paul (1963) pg. 238 (Con. Prem.)
i. [Fed regulations of avocados, CA had a stricter rule, PE? H: no, Ss can be more strict,
Fed law is a floor]
ii. Fed pre-empts in cases where compliance w/ both fed & S regulations is physically
impossible
j. Gade v. National Solid Wastes Management Assn (1992) pg. 239 (Conf. Pre.)
i. [health & safety regs for hazardous waste, PE? H: yes]
ii. Read fed scheme as forbidding duplicative regulation
k. Wyeth v. Levine (2009) pg. 239 (Con. Pre)
i. [FDA warning labels didnt PE state tort liability on failure to warn theory]
ii. P failed to show that it was impossible to comply w/ both fed & S requirements
l. Crosby v. National Foreign Trade council (2000) pg. 240
i. [Mass law went further than fed embargo on Burma]
ii. Common end doesnt neutralize conflicting means
iii. State law was an obstacle to the accomplishment of Congresss full objectives under
the federal Act)
iv. Failure to expressly provide for preemption doesnt really mean anything
6. CONGRESSIONAL CONSENT
a. Cong can consent to S. reg in traditionally Cong area (waive power) (Post-Cooley)
i. Fed waiver of authority less dangerous
ii. C doesnt say Cong cant do this
iii. Cong can validly consent to S laws when the C limit on S power is not matched by a
similar or identical limitation on Fed power
b. Prudential Ins. Co v. Benjamini (1946) pg. 290
i. [SC taxing an ins. Co for instate biz]
ii. Fed law specifying ins as intrastate, so Ss can tax them proper consent
1. Both Fed & S cooperating in this area
iii. Statutory exception to DCC violation
iv. If Congress says the States are allowed to do X (which Court previously said was
forbidden by CC) this is okay
36

1. There is no limitation on Congress saying it cannot discriminate against ISC in

favor of local trade (except if expressly said in C)
c. White v. Massachusetts (1983) (also market participant case) 251/292)
i. If Cong specifically authorizes S action, it isnt subject to the CC even if it interferes
w/ ISC
7. Other ways for Congress to order the fed-S relationship
a. Intergovernmental immunities
b. Fed incorp/adoption of S common law
c. S administration of fed law
d. Pg. 293-296

SEPARATION OF POWERS
1. Separation of Powers Generally
a. Reasons:
i. keep power balanced, prevent tyrannical/oppressive gov.
ii. preserve individual liberty
b. In all these fights, multiple principles/clauses usually implicated
c. Difficulties:
i. changing nature of government & need for checks/SOP
ii. what is policy-making and executive action?
1. One cannot really execute the law without making policy decisions
d. Formalist vs. Functionalist analyses
i. These help inform whether there is an SOP problem
ii. Formalist: does C say X? (brightline)
1. C interp is always somewhat formal
2. Using this approach, more likely to find SOP problems b/c strict
iii. Functionalist: look at the context (flexible)
1. Any acknowledgment of modern conditions is functional to a degree
2. Less likely to find SOP problems b/c allows for adjustments of power (so long
as no usurping or aggrandizing at expense of another)
2. THE EXECUTIVE BRANCH & SOP
a. Pres. Authority Art II
i. Sources of authority
1. Constitution
2. Statutes
ii. Exec executes/enforces the laws
1. Concern: when Pr makes policy (Pr does have some policy power via treaties)
2. Pr action most aggressive in foreign affairs arena
a. Exec has gathered significant authority here
iii. Exec Order: says how Pr will enforce, but often includes policy suggestions
b. YOUNGSTOWN SHEET & TUBE CO. V. SAWYER (1952) pg. 298
i. [Korean war backdrop; national steel strike scheduled, Pr seized all the steel mills]
ii. I: did Pr have the power to do this?
iii. Pr arg
1. Commander in chief power (theater of war)
2. Exec power vested in Pr
3. Take Care Clause: Pr shall take care that the laws be faithfully executed
iv. Black: there must be direct, affirmative grant of authority (w/o it, Pr cant do it)
1. The Pr has no inherent presidential power.
37

c.

d.

e.

F.

g.

2. The Prs power to see that the laws are faithfully executed, refutes the idea that
he is a lawmaker
3. War power is not so broad as to encompass domestic private property.
v. Jackson Conc. (functional approach)
1. Full power: express/implied congressional authorization Pr can act (as long
as it doesnt violate C)
2. Zone of Twilight: Pr acts in absence of Cong grant of authority but relies on
independent powers concurrent authority
a. No law/C prohibits the act explicitly
b. Balancing test
3. Pr takes measures incompatible w/ express/implied will of Cong can rely
only on his own C power minus Cong C power
4. Power to legislative for emergencies belongs in hands of Cong
vi. Frankfurter Conc
1. A systematic, unbroken exec practice long pursued with Congs knowledge, is
likely a part of executive power
United States v. Belmont (1937) pg. 309
i. [Exec agreement w/ USSR]
ii. Assignment & agreement dont require Senates participation (unlike treaties)
iii. Exec agreement took precedence over conflicting S policy (Supremacy Clause)
DAMES & MOORE V. REGAN (1981) pg. 310
i. [US-Iran hostage crisis, US seized Irans assets, then unfroze them as term for hostage
release & set up Iran-US claims tribunal for I relating to Irans assets]
ii. P wanted their breach of K settled in Ct (not tribunal)
iii. Pr did this via Exec Agreement w/ Iran (not a treaty)
iv. Ct looks at Pr power as a continuum (equivalent to Jacksons categories)
1. Continuum makes it easier to use a multi-factor case-by-case analysis
2. Application (Congressional approval, similar situations historically, existence
of legal remedy for P)
a. Cong failure to specifically delegate authority doesnt imply
congressional disapproval (especially in foreign/war areas)
War Powers
i. C provisions
1. Art 1 sec 8: Cong declares war (leg makes policy)
2. Art 2 Pr = commander in chief (effectuates policy)
ii. Contradiction in C now?
1. Cong no longer declares war, but Pr still begins military engagements
iii. Emergency Powers & Constitution discussion pg. 266-2
EX PARTE MILLIGAN (1866) pg. 324
i. [M, IN citizen, accused of supporting confederacy, tried before mil tribunal, sentenced
to death, jury wouldnt indict him, M wasnt confed supporter, etc.]
ii. HC petition appropriate & approved
iii. Martial law cannot exist where courts are open
1. It destroys every C guarantee
2. While HC suspension is necessary, suspension clause doesnt say D denied HC
shall be tried by military tribunal
3. Also limited once emergency ends, HC suspension must be lifted
Ex Parte Quirin (1942) pg. 327
i. [German nationals (who have lived in US), received training in sabotage school in
Berlin after declaration of war, came to US via submarine w/ explosives and orders to
destroy war industries/facilities, by P order, to be tried by military tribunal]
38

h.
I.

j.

k.

l.

ii. I: is it w/I the C power of the gov to try Ds before a military commission. Yes
iii. Big diff: these were foreign, enemy combatants (who admitted to guilt)
1. The fact that they admitted, made them guilty of offenses which the C does not
require to be tried by jury
2. Citizenship in US doesnt relieve him of consequences that is unlawful given
the law of war
Johnson v. Eisentrager (1950) pg. 332
i. Foreign enemies, captured abroad, tried abroad, no WHC protection b/c never in US
RASUL V. BUSH (2004) pg. 334
i. Similar to Eisentrager
ii. Ct can hear HC petitions from detainees
iii. Distinguishing Eisentrager
1. ECs arent citizens of enemy country
2. Ds havent admitted to aggression
3. Have had no access to review
4. Guantanamo = US
Hamdi v. Rumsfeld 2004 (335) separation of powers & individ rights
i. [US citizen, captured in Afgh, held in US]
ii. Q: is confinement legitimate?
iii. Sep of Powers Q
1. AUMF allows Exec to detain citizens
iv. Mathews test (determines procedure given to detainees)
1. Weighing the private interest that will be affected against
2. The governments asserted interest
a. Including the function involved and
b. The burdens the gov would face in providing greater process
v. Dissent: gov cant suspend WHC by implication; must say you are doing it
1. Purpose of HC: to determine legality of detention, not to supply process
necessary to make it legal
Hamdan v. Rumsfeld (2006) pg. 348 separation of powers
i. [H was Yemeni, captured by militia forces, given to US, to Guantanamo in 6/2002, 2
years later charged for conspiracy, to be tried by military commission]
ii. Did Cong authorize mil tribunal? No
Boumediene v. Bush (2008) pg. 355 individual rights
i. [D at Guantanamo, HC practically suspended by MCA & DTA which limited HC
review to DC CA, no HC for overseas enemy combatants, CA couldnt inquire into
legality of detention only assess proc compliance w/ Sec of Defenses specifications,
& P could try ECs by military commission]
ii. I1: does Suspension Clause reach Guantanamo? Yes factors:
1. Citizenship & status of the detainee & adequacy of process through which
status determination was made
2. Nature of the sites where apprehension & detention took place
3. Practical obstacles inherent in resolving prisoners entitlement to writ
iii. I2: Does statute avoid Suspension Clause prob by providing Ct w/ habeas substitute?
No
iv. I3: prudential barriers? Nope Gov hasnt shown onerous burden

39

3. LEGISLATIVE BRANCH & SOP

a. Non-Delegation Doctrine
i. Congress may not constitutionally delegate its legislative power to another branch
1. Never actually enforced (but its presence is helpful)
ii. When delegating, Cong must specify intelligible principles to guide the agency
1. Cong can only change delegation via legislation (Chadha)
iii. In background of many SOP cases
iv. when authorized executive reduction or augmentation is allowed to go too far, it
usurps the nondelegable function of Cong and violates SOP (312)
b. Clauses
i. Presentment clause: (Art. 1 sec 7 cl 2) all legislation must be presented to the Pres
before becoming law
ii. Bicameralism: (Art 1 sec 1 & 7) no law could take effect without the concurrence of
the prescribed majority of both Houses
iii. Appointment Clause: Art 2 sec 2 cl 2
1. Inferior officials: Cong can vest appointment authority in other officials
a. Q: who is an inferior official?
2. Congress cannot retain appointment power, but may vest appointment power of
inferior officials in Pr, Fed courts, heads of departments, etc. (Chem/Buckley)
c. INS V. CHADHA (1983) pg. 302
i. [Immigration & Nationality Act; clause allowed 1 house of Cong to invalidate an Exec
decision to suspend deportation of an alien; Exec & leg agreed, this happened w/ C]
ii. Purpose & problem: one house may veto when they think the policy determination was
wrong
1. Just because a proc is efficient, convenient & useful will not save it if un-C
iii. Key: if the action contains matter which is legislative in character & effect then it is a
legislative action
1. Legislative act: one that alters legal rights or obligations in some way
2. Legislative acts must satisfy bicameralism & presentment (Art 1 standards)
a. Bicameralism problem: only 1 house is effecting policy & both are
supposed to
b. Presentment problem: the suspension didnt go before Pres
iv. Dissent (functionalist) :
1. This is necessary since Cong has to delegate a lot of its power, but still needs to
maintain a check on the Exec (otherwise like usurping Cong power)
d. CLINTON V. NEW YORK (1998) pg. 377
i. [Line Item Veto Act, allowed Pr to cancel provisions of balanced budget (limited,
subject to reqs, also Cong could disapprove it), he did this w/ 2 provisions; congress &
exec agree]
ii. Problem: Pr signs bill into law, but gets rid of parts of it
iii. Un-C b/c
1. The line veto = an amendment of the bill; must conform w/ Art 1
a. and this power is w/I Cong hands, not exec
2. Cancelling = rejecting Cong policy determination
3. Alters political dynamic (not supposed to happen!)
iv. Functional arg
1. Motivation is to change the balance of power (LIVA necessary b/c Cong cant
stop spending)
v. Dissent Scalia: Line veto actually is the same as deciding not to spend appropriated
funds, historically Cong has given Pr wide discretion in this area, not un-C
1. Separation of Powers Framework (382)
40

a. Has Cong given the Pres the wrong kind of power (e.g. non-exec)
b. Has Cong given the Pr power to encroach upon Congs C reserved
territory?
c. Has Cong given the Pr too much power violating the doctrine of
nondelegation?
2. Framework applied:
a. Pr has this power already (spending discretion)
b. Pr has authority to expand Cong authority, so why not detract?
c. Formal: labeling (exec v. leg)
e. Presidential Removal of Officers (wrap-up)
i. Generally:
1. Pr may remove exec officials (unless limited by statute)
2. Congress (by statute) may limit removal if:
a. It is an office where independence from Pr is desirable, AND
b. The law does not prohibit removal, but limits removal to instances
where good cause is shown
ii. Variables
1. Nature of officials function (e.g. purely exec?)
a. Difficult to determine
b. Important, b/c if Exec, then Pr should remove; if Leg then Cong should
c. If not purely exec, then Cong can limit
2. Degree of Cong control over removal
a. If Cong retains complete authority, this will likely cause problems
iii. Bowsher: comptroller gen exec function -> not okay for Cong to retain removal
iv. Humphreys Executer: FTC leg function -> okay for Cong to limit Pr removal power
v. Morrison: non-interference w/ core exec function -> OK for cong to limit Pr removal
power
vi. Free Enterprise: PCAOB exec function -> not OK for cong to rest removal in officials
not controlled by Pr
vii. Mistretta: permissible delegation OK for Cong to vest leg power in (judicial) officials
appointed by Pr
F. BOWSHER V. SYNAR (1986) pg. 385
i. [Balance budge act, gave exec functions to comptroller general whose removal process
in 1921 act let Cong remove him for just cause]
ii. Note: Comp Gen & General Accounting Office both legislative (not exec)
1. Thus cannot assign them executive functions w/o violating SOP
iii. If exec functions assigned to an officer -> Cong cant hold removal power
1. To hold otherwise, would give Cong control over execution of the laws
2. Like in Chadha, Cong is assigning exec function but retaining a way to
second-guess and we cant allow this
3. Cong can control execution of enactments only indirectly: by passing new
legislation (once choice is made, it remains until changed)
iv. Concerns w/ consistency & stare decises
v. Dissent:
1. Implausible that Cong would remove CG for arbitrary reasons
2. This is a case of incentives
3. SOP Q: whether there is a genuine threat of encroachment or aggrandizement
of one branch at the expense of another (319)
G. HUMPHREYS EXECUTOR (1935) pg. 388
i. [Cong said Pr could only remove FTC officers for cause so condition added]
41

ii. Limits Myers (strong view of Exec Pr gets removal power over officers) to purely
exec officers
iii. Test: as long as official is not performing purely exec functions, then Cong can limit
Prs removal power (indirect partial control)
H. MORRISON V. OLSON (1988) pg. 391
i. [independent counsel created by Ethics in Gov Act; Cong authorized AG to authorize 3
justice panel to authorize IC to uncover Exec wrongdoing]
ii. Removal: AG can remove IC for good cause (like Humphreys) Cong doesnt have
control over this
iii. H: conditional removal doesnt impede Prs authority
1. IC is special: limited term, power and role necessary!
iv. SOP Key: to ensure that Cong doesnt interfere w/ Prs exercise of the exec power &
his C duties
1. Q: whether removal restrictions are of such a nature that they imped the Prs
ability to perform his constitutional duty (functions of officials in question
must be analyzed in this light)
v. Dissent (formal): IC is purely exec, so Myers
i. Mistretta v. United States (1989) pg. 396
i. [sentencing commission]
ii. H: does not violate SOP
iii. The branches are not to be entirely distinct and separate, but instead, there are
supposed to be checks and balances
J. FREE ENTERPRISE (2010) (Supp 6)
i. [board, members removable by SEC (Cong vestment), Pr can remove SEC
commissioners but only for certain things]
ii. Result of act: board isnt accountable to the Pr it has no oversight
1. Has no way to intervene unless aggregious bad things
iii. Big Problem: Pr is stripped of powers & his ability to execute the laws, because he
cant hold subordinates accountable
iv. Board performs exec-ish functions, Cong hasnt retained removal authority
1. Distinguishing: good cause req for removal so board isnt directly
accountable to SEC/Pr
2. In other cases, Pr can still effectively remove officers at his discretion
v. Dissent
1. Too formalistic!
2. When deciding nontextual questions, Ct must examine how a provision (in
context) is likely to function
a. We must allow for flexibility! Bright-line rules hurt this

42

4. EXECUTIVE PRIVILEGES & IMMUNITIES

a. Implied privileges (C structure & analogizing from CL)
b. UNITED STATES V. NIXON (1974) pg. 406 similar to enemy combatant cases
i. [subpoenad Nixon, he moved to quash & claimed executive privilege]
ii. When ground for asserting the privilege sought for use in criminal trial is based only
on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law.
iii. SOP countervailing interest of judicial branch administration of justice
1. Ct: you can trust judges
2. To some extent, Pr is at mercy of the court
iv. Pr says compliance would injure public interest, then privilege presumed and burden
falls on prosecutor to demonstrate that the material is essential
c. NIXON V. FITZGERALD (1982) pg. 410
i. [F was a whistleblower who was fired for it]
ii. Rule: absolute immunity from civil liability for official acts
iii. Reason:
1. Distraction from official duties is bad (civil litigation would do this)
a. w/ this rationale, immunity can end once out of office
2. Pr might censor his actions b/c of possible civil consequences
a. Immunity must continue after office
iv. Dissent
1. Immunity should be based on function (e.g. national security decisions?)
instead of office, otherwise above the law
a. Problems: not bright-line, so uncertainty about what would be protected
still would leave a distraction problem
d. CLINTON V. JONES (1997) pg. 411
i. [Gov of Ark, J claims sexual harassment; sues while he is Pr]
ii. Cts distraction rationale is bad (should have found this would distract)
1. Ct doesnt like the context extending immunity smacks too much of putting
Pr above the law
iii. Rule: The doctrine of separation of powers does not require federal courts to stay all
private actions against the President until he leaves office.
iv. Rule: willingness to grant immunity based on underlying action
1. sphere of protected action must be related closely to the immunitys justifying
purpose and protecting Pr from kind of stuff sucks
2. Also, grounded in nature of the function performed, not identity of the actor
e. Impeachment
i. Arg 1: b/c we have impeachment, we must be able to do more [?? Missed his comment
in class on this]
ii. Arg 2: impeachment is sole way to deal w/ Pr wrongdoing
iii. High crimes & misdemeanors: not about policy disputes (in theory)

43

INDIVIDUAL RIGHTS
1. Individual Rights generally
a. Considerations
i. Relationships
ii. Avoid judicial tyranny b/c people would be hurt
b. Big Questions
i. What rights are protected?
1. Enumerated: freedom of speech
2. Unenumerated: right to private (derived from DP & other rights)
ii. What rights are protected against the states?
1. Since Ss are closer to people, they have more opportunities to violate
c. Standards of Review
i. If the right is fundamental, it gets strict scrutiny
d. BARRON V. MAYOR AND CITY COUNCIL OF BALTIMORE (1833) pg. 426
i. [P sued City for Takings (stream deposited sand near his wharf making it impossible to
use) under 5th A]
ii. The BOR only applies to the federal government, not the States
iii. Constitution construction/rationale
1. Article 1 specifies limitations on Fed & State
2. Thus if intent was to restrain States, Bill of Rights would have been similar
3. Concern with fed overstepping power (BOR purpose: curb fed authority)
4. Since fed has leading role, more likely to abuse individ rights
a. & states arent powerful enough to infringe on individ rights
e. Dred Scott v. Sandford (1857) pg. 429
i. [Slave suit]
ii. Declaration of Independence did not include the enslaved African race.
2. FOURTEENTH AMENDMENT
a. First direct check on State abuses of individual rights
b. Clauses
i. Due Process
ii. Privileges or Immunities
iii. Equal Protection Clause
3. PRIVILEGES OR IMMUNITIES
a. SLAUGHTER-HOUSE CASES (1873) pg. 433
i. [LA chartered a corp and granted it a monopoly on slaughterhouses; all competing
facilities had to close; butchers brought a right deprivation claim under 14th]
ii. Purpose of 13th-15th amendments: give blacks freedom & rights
iii. P&I
1. Only applies to fundamental rights
2. P&I is constrained, so bigger rights can go here
iv. PorI
1. Protects less than P &I
2. Only protects rights distinctly related to national citizenship (interstate in
character) [redundant given supremacy clause]
3. PorI is very powerful so only limited or narrow rights
a. Concern with state sovereignty
4. Court basically makes this clause meaningless (protect balance of power)
v. Dissent:
1. 14th A says that P&Is wont be abridged by S government
2. This is supposed to protect every citizen from hostile S governments
44

b. SAENZ V. ROE (1999) pg. 440

i. [CA law distinguished b/t S residents in distribution of welfare benefits according to
their length of residency; Cong law in 1996 authorized such schemes] [Limited
maximum benefits to newly arrived residents]
ii. Right to Travel is fundamental (and thus protected by P&I)
1. Right to enter & leave a state
2. Right to be treated as a welcome visitor
3. Right to be treated like other citizens of the S if elect to become permanent
resident (at I in this case)
iii. Congress may not authorize the Ss to violate the 14th A
iv. Dissent: welfare is like tuition or divorce, both of which Ss can put restraints on, so it
should be the same here
c. Shapiro v. Thompson (1969) pg. 443
i. [durational residency reqs for state benefits]
ii. Right to travel is fundamental & thus gets strict scrutiny review
4. DUE PROCESS - INCORPORATION
a. Due Process how to determine?
i. Examine the constitution
ii. Common law
iii. fundamental fairness
b. Incorporation Methodology
i. Old (Palko-Adamson): did the state action at I violate fundamental fairness?
ii. New: is the right implicit in our concept of ordered liberty
1. (Duncan): whether the BOR provision is essential to fundamental fairness
such that it should be made applicable to states?
c. Incorporation: applying rights to the States via the DPC
i. Must state a claim under both clauses (DP + rights clause)
ii. Alters substantive rights jurisprudence
d. Palko (1937) pg. 447 arg for selective incorporation
i. Incorporated in DP is neither liberty nor justice would exist without them
e. ADAMSON (1947). Pg. 448
i. Incorporation theories
ii. Non-incorporation: concerned with limiting S authority
1. Frankfurter reframes it: look at DPC as an entity on its own terms & what
rights does it protect?
2. Test: did process w/o X right offend those canons of decency & fairness
essential to our notions of fairness
3. Concern: We will be dumping the BOR on the Ss - overburdens
iii. Total incorporation (Black)
1. Should incorporate it all
2. Benefit: bright-line; helps individuals immediately
3. Cons: burdens Ss more (federalism!)
iv. Partial incorporation (court uses this)
1. Not always consistent means diff things
2. Test: is the right at issue implicit in our concept of ordered liberty?
f. DUNCAN V. LOUISIANA (1968) pg. 450
i. [no jury trial for a 2-year charge]
ii. H: for serious crimes, states must provide jury trial
iii. Q: what does justice require?
iv. The deep commitment of the Nation to a jury trial qualifies for protection.
v. Compare w/ DJ & self-incrim (not protected by 14th CP)
45

1. Rhetoric has changed

2. Warren court is more protectionist
vi. Problem w/ incorp: waters down content of BOR b/c stakes are higher
g. Mapp (1949): incorporation included both the core of the BOR guarantee and also every detail
of the contours of the guarantee
h. MCDONALD V. CHICAGO (2010) (sup 9)
I. [effective ban on private handguns; municipal reg ordinance, violates 2nd A?]
ii. Test
1. Whether the right to keep & bear arms is fundamental to our scheme of ordered
liberty? OR
2. whether this right is deeply rooted in this Nations history and tradition
iii. H: yes! It passes both tests.
iv. Thomas: should use P or I
v. Stevens (dissent):
1. This is actually a SDP case
2. Interpretation of DP should not be too rigidly historical
a. Historical pedigree is not the exclusive determination for DP
3. Owning a gun is not the kind of liberty recognized by DP
a. DP recognizes liberty interests critical to leading a life of autonomy,
dignity or political equality
4. Federalism! States historically have regulated handguns
5. Wants non-incorporation
vi. Breyer (dissent):
1. How to determine whether fundamental:
a. Look to history (but not only history it is dangerous to exclusively
rely on this)
b. Nature of the right
c. Contemporary disagreement about whether the right is fundamental
d. Extent to which incorp will further other, more basic C aims
e. Extent to which incorp will advance/hinder the Cs structural aims
i. Division of powers
ii. Incorp necessary to ensure the gov treats individuals with
respect?
iii. Help maintain democratic form?
2. Considerations
a. Incorporation alters the C relationship b/t Ss & Fed
i. This is traditionally an area regulated by states
b. Importance of states in this area
i. States reflect local preferences and conditions

46

5. STATE ACTION
a. 14th A only applies to government, not private conduct
i. Only limits the Constitution statutes can target private conduct
th
b. 14 & 15th say no state shall so what does this mean?
i. Problem area: private actors closely related to state government
ii. Consider: privatization of traditionally state areas (e.g. prisons)
iii. Many S action cases involve statutes
c. Purpose/Reason for existence
i. Textual: C directed at government
ii. Federalism: respecting state prerogatives to govern their own citizens
iii. Liberty: sphere of individual liberty free of C norms
d. S Action cases often come down to market forces vs. gov forces
e. State Action Exceptions/Tests
i. Public Function (old test not overruled, but kinda subsumed by nexus)
1. Marsh v. Alabama (1946) pg. 818
a. [company town + jehovahs witnesses]
b. Town being private doesnt matter b/c it has all the features of a normal
town; it serves a public function
2. Limited in NLRB
3. Shopping Malls
a. Logan Valley Plaza serves public function
b. NLRB privately owned shopping center does not serve public function
(strict reading of Marsh), overruled Logan
4. Private entity exercising powers traditionally exclusively reserved to the state
ii. Nexus Test (contemporary)
1. whether there is sufficiently close nexus between the State and the challenged
action of the regulated entity so that the action of the latter may be fairly
treated as that of the State itself (Jackson)
2. entanglement: when the gov affirmatively authorizes, encourages or
facilitates private conduct that violates the C (Chem)
a. Government regulation alone not always sufficient (Jackson)
b. Symbiotic relationships
3. Fact sensitive/case by case
a. Burton
b. Shelley
f. CIVIL RIGHTS CASES (1883) pg. 814
i. [Civil Rights Act 1875 pursuant to 14th A enforcement power; Full & Equal enjoyment
for places available to public, implicates private action]
ii. H: Cong goes too far; 14th A only applies to S action (textual)
1. S police power
2. Concern w/ federalism (encroachment on S power)
3. Note: Cong can regulate private conduct via CC/DCC
iii. Ct: we wont let this new power extend to private conduct b/c it would dramatically
expand Cong regulatory power
iv. Conflict b/t EP & rights of discriminator (e.g. right to privacy)
1. Countervailing rights claims
2. Liberty vs equality
v. Harlan Dissent (816)
1. 13th A: eliminate slavery & its incidents/appendages
2. 14th A gives us rights so doesnt matter who is violating it
a. Based on: purposes/meaning, grant of equal rights of citizenship
47

g. SHELLEY V. KRAEMER (1948) pg. 821

i. [racist restrictive covenants, state court enforced the K]
ii. This is S action b/c K is only as good as enforcement power behind it (which is the
state court)
1. S action refers to exertions of S power in all forms
iii. Private actor sufficiently related to the S to view their actions as S action
1. But for the States action, the petitioners would have been able to occupy the
property (cov wouldnt be enforced)
iv. Implication: every private K = s action via enforcement
h. Penn v. Board of Directors of Trust S Action b/c Board of Girard College was an agency of
the state (City of Philadelphia was a trustee, and other trustees were city officials)
i. BURTON (1961) pg. 824
i. [restaurant in gov owned building w/ public parking]
ii. P arg: D is in a gov building!
iii. Blatant discrimination & gov leased to the restaurant owner, so S action (D & State
were interdependent!)
iv. Determining State Action
1. Sift facts & weigh circumstances
2. Degree of state participation and involvement
3. Facts
a. Publicly owned land/building?
b. Dedication to public use?
j. MOOSE LODGE (pg. 825)
i. [Lodge refused service to blacks in its dining room]
ii. State regulation alone (e.g. a license) doesnt equal state action
iii. Key: State must be significantly involved itself with invidious discrimination where
the impetus for the discrim is private
iv. The impetus for the forbidden discrimination need not originate with the State if it is
state action that enforces privately originated discrimination.
k. Reitman v. Mulkey (1967) pg. 826
i. [popular repeal of fair housing laws]
ii. H: this was state action (b/c would encourage/involve the state in private discrim), and
un-C b/c it basically allows for discrim immune from any changes
l. JACKSON V. METRO (1974) pg. 828
i. [privately owned utility, didnt give notice for terminating service]
ii. P arg
1. S sanctioned monopoly (good arg)
2. Regulated by S (But everything is to an extent)
iii. H: No, D isnt a state actor
iv. Test: sufficiently close nexus
1. S didnt create the monopoly, economic forces did! (many S action cases come
down to gov vs. market forces)
2. Gov never affirmatively approved of Ds actions
v. Dissent factors for determining state action:
1. State sanction monopoly
2. Extensive pattern of cooperation b/t private entity & state
3. Service uniquely public in nature
m. Flagg Bros (1978) pg. 830
i. [D sold bailed goods to satisfy a UCC lien, H: not state action]
ii. State acquiescence in a private action doesnt make it state action
48

n. Blum (1982) pg. 831 [privately owned nursing homes receiving reimbursement from the states
are not state actors b/c transfer decisions were made by private nursing home]
i. Even state financial incentives for transferring insufficient to constitute S action
o. Rendell-Baker (1982) pg. 831 [private school w/ income from public sources & regulated by
public authorities is not engaging in state action when discharging employees]
i. Government funding by itself is not sufficient for finding state action
ii. Even though primarily funded by public, the school was not fundamentally diff from
many private corporations w/ contracts w/ Gov
iii. Acts of private contractors dont become acts of gov by reason of significant or even
total engagement in the performance of public contracts
p. DeShaney (1989) pg. 832 [State is not obligated to act to protect against private actors, 14th A
is to protect people from the state]
q. Decisions finding state action to be present
i. Moose Lodge, Jackson, Blum, Rendell-Baker and DeShaney declined to expand the
state action doctrine into new area.
ii. Lugar v. Edmondson Oil Co (1982): Court found the state action requirement satisfied
when a creditor, pursuant to a state law, attached the debtors property in an ex parte
proceeding, alleging that the debtor might dispose of the property to defeat creditors.
iii. Edmonson v. Leesville Concrete (1991): Court held that use by a private litigant in a
civil proceeding of peremptory challenges to exclude jurors on the basis of race
constituted state action for 14th Amendment equal protection purposes.
iv. Brentwood Academy v. Tennessee Secondary School (2001): Court held that a
statewide interscholastic athletics association comprise of public and private schools to
be a state actor because of public entwinement in its management and control,
notwithstanding the Associations member schools were public schools.
6. ENFORCEMENT POWER
a. Clauses
i. 13th A sec 2
ii. 14th A sec 5
1. Gives Cong power to enforce, not power to determine what constitutes a C
violation (City of Boerne)
a. So Cong only has remedial power (corrective power)
b. The power to interpret the C and to define substance of C guarantees
remains with the judiciary (City of Boerne & Garrett)
2. Cong may enact preventative/remedial legislation, subject to the Boerne
congruence and proportionality test
3. Congress may NOT expand the scope of rights or create new ones
4. May only be directed at government conduct, NOT private activity
iii. 15th A sec 2
b. Reasons it Matters
i. This is the only way to abrogate 11th A immunity
ii. But enforcement can include damage provisions, direct penalties, etc.
c. Tension b/t Congress and SC
i. Here, Congress & Ct have concurrent authority to enforce the C
49

d. Big Q: was Congs action substantive or remedial?

i. Cong can make substantive judgments so long as Ct affirms it (thus the law is not
substantive, but remedial)
ii. Cong can definitely use remedial authority
iii. Cong can speak to constitutionality via standards of review [Q]
e. Test
i. Is the right recognized by the court under 14th sec 1?
1. Remember: leg is enacted to remedy rights violations, so the right being
violated must be recognized under 14th sec 1
2. However, Congress can move to protect a right not recognized by the courts,
and then it is up to the court to decide whether it deserves 14th A protection
ii. Is there congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end? (Boerne)
1. Key: what is the level of scrutiny accorded the right?
2. The higher the level, the more likely there are violations and thus Congress has
broader authority to legislate
3. Impact: laws based on sec 5 must be narrowly tailored
f. Level of Scrutiny
i. Why they matter: they are the balancing instructions
1. FN4 brings up the idea that while most laws are presumptively constitutional,
if they impact certain areas they may be subject to stricter scrutiny (see due
process)
ii. Strict Scrutiny (presumptively unconstitutional): gov can only win if
1. X serves a compelling governmental interest AND
2. X is the least restrictive means of achieving this interest
iii. Rational Basis (presumptively constitutional)
1. Some rational basis on which to rest government conduct
2. Based off McCulloch (let the end be legit)
3. When using remedial power, Congs acts analyzed under this
iv. Ct & Cong argue over which level to apply
1. The levels provide thresholds for when action violates a right
g. SC V. KATZENBACK (1966) pg. 846
i. [Voting Rights Act prohibited literacy tests]
ii. If arguing facially must argue that law is always un-C (really hard)
iii. Ct says literacy tests are un-C substantive judgment
1. Thus Ct can say Cong acted remedially when it enacted the VRA
2. Also, VRA was limited in scope (only some cases)
3. And an appropriate means of achieving the end (equality)
iv. Cong can make substantive judgments so long as Ct affirms it
1. thus the law is not substantive, but technically remedial
h. KATZENBACH V. MORGAN (1966) pg. 850
i. [English req for NY voting; Fed Voting Rights Act of 1965 conflicted and prohibited
the req for Puerto Ricans educated in language other than English]
ii. Theory 1: EPC guarantees equal access to gov service, can only ensure this by
exercising voting rights
iii. Theory 2: Cong could have been remedying discrim by NY (broader)
iv. Cong cannot decrease C guarantees, can only expand
1. Problem: competing policy/rights arguments (e.g. abortion)
v. Big Q: whether Cong is limited to remedying what Ct has found un-C, or whether it
can independently interp the C
1. It isnt limited to only Ct declared C violations
50

2. Congress may not reduce constitutional right guarantees

3. Sec 5 grants power similar to N&P (see McCulloch standard) retracted in
City of Boerne
vi. McCulloch Standard (whether the act is appropriate to enforce equal protection)
1. Whether the law may be regarded as an enactment to enforce equal protection
2. Whether it is plainly adapted to that end
3. Whether it is not prohibited by but consistent with the letter & spirit of the
Constitution
i. Oregon v. Mitchell (1970) pg. 856
i. [VRA mandating 18 yo could vote, contests upheld for Fed elections, but not for
state]
ii. State ability to determine qualifications of their voters is essential to the separate and
independent existence of the states (within the C, of course)
j. ROME V. US (1980) pg. 857
i. [redefining boundaries & election methods for vote dilution reasons, AG has to
approve change b/c of VRA to make sure no discrim, AG says discrim effect]
ii. Q: is cong making a substantive law decision? Can Cong say this category of action is
un-C?
iii. Risk of purposeful discrim was so great that remedial leg justified based on less effect
evidence but Ct wont say Cong has substantive power
iv. Dissent
1. Cong is only allowed to enforce appropriate legislation the limitations on state
action that the 13-15 contain
k. CITY OF BOERNE V. FLORES (1997) pg. 859
i. [Religious Freedom Restoration Act; passed in response to OR peyote case,
established strict scrutiny test for laws dealing w/ religion]
ii. RFRA direct only at Fed gov is okay
1. But if Cong can apply this to S.s, it is using substantive C power
2. RFRA unconstitutionally expanded the scope of rights
a. It was also not congruous or proportional
iii. Congress may not create new rights or expand their scope under sec 5
1. If the legislation alters the right, it cannot be enforcing the Clause (invalid)
2. Congress cannot enforce a C right by changing what it is
iv. Test (14th A sec 5)
1. There must be congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.
a. Proportionality = scope
b. But courts really look at congruence & proportionality together
c. w/o this connection, leg may be substantive
d. appropriateness of remedial measures considered in light of the evil
presented
2. This test determines whether the law properly only prevents or remedies
violations of rights recognized by the court
v. Preventative measures may be appropriate when there is reason to believe many of the
laws affected by the Cong enactment have a significant likelihood of being
unconstitutional
vi. Where Cong enactment pervasively prohibits C state action in an effort to remedy or
prevent un-C S action, limitations of this kind (geographic, termination dates, etc.)
tend to ensure proportionality
vii. SOP & Federalism issues
1. Cong is telling Cts they must use strict scrutiny when courts said rational basis
51

l.
m.

n.

o.

P.

2. Need to ensure that the court remains the authoritative interpreter of the C
a. If Cong could define its own powers, C would not be paramount law
b/c it would become easily alterable
th
Sec 5 abrogating 11 A Immunity cases:
Florida Prepaid (1999) pg. 868
i. [Ct invalidated Patent ProtectionAct which had expressly abrogated states sovereign
immunity from claims of patent infringement]
ii. I: was the abrogation a valid use of section 5 enforcement power
iii. Problem: Congress identified no pattern of infringement and definitely no pattern of C
due process violations
iv. Proper sec 5 legislation must be responding to widespread & persisting deprivation of
constitutional rights
UNITED STATES V. MORRISON part 2! Pg. 869
i. EP allows the act
ii. The remedy is directed at private actors and is too broad
1. 14th A prohibits only state action
iii. Congress may not regulate private conduct under sec 5
iv. Outlier for this topic
KIMEL & GARETT (2000) pg. 872
i. Abrogation of 11th A to implement policy
ii. H: the groups discriminated against, dont get strict scrutiny so Cong overreached
1. Also insufficient evidence of a pattern of discrimination
2. The discrimination also may not have been un-C!
LANE, GEORGIA, HIBBS
i. Ct finds for Cong b/c the discrimd groups get strict scrutiny review
ii. Lane: appropriateness of remedy depends on gravity of the harm it seeks to prevent
1. Pattern of disability discrimination
2. Remedy also fairly limited and not too burdensome
3. Dissent: financial considerations almost always furnish a rational basis for a
state to decline to make alterations to remedy discrim
iii. GA: easy case for gov
1. Congress can definitely create private remedies against the states for actual
violations of those provisions (the Q is usually RE broader remedies w/o actual
violations but just patterns/evidence of discrim)
iv. Hibbs:
1. Congress can enact prophylactic legislation that proscribes facially
constitutional conduct in order to prevent/deter unconstitutional conduct
2. So can prohibit a broader swath of conduct to prevent discrim

7. SUBSTANTIVE DUE PROCESS

a. SDP: the 2nd way the court can derive rights (1st is incorp)
b. 14th A provides: incorporated rights & unincorporated rights
i. Background: 14th A created some substantive rights
c. Judicial methodology for evaluating rights claims
i. Big Q: the degree to which the courts should protect liberties
ii. Balance gov interest against competing individual rights + means/ends
iii. Economic due process: rational review (so very hard to win)
1. Presumed constitutional unless it cannot be said to be rested upon a rational
basis
iv. Penumbras and Emanations
d. Problem
52

i. Somewhat arbitrary judges creating rights out of thin air

ii. Most agree that the 14th A protects unique substantive rights, what are those rights?
1. Lochner (but failed)
2. Meyer v. Neb (1923) & Pierce v. Society of Sisters
a. Right to educate your kids as you want is fundamental
iii. Goal: justify an unenumerated right without falling into the Lochner trap
e. LOCHNER V. NEW YORK (1904) pg. 471
i. [labor law w/ max hours for bakers]
ii. S interest: PP (healty) and maybe remedying unequal bargaining power
iii. Ct: the law interferes w/ economic liberties/right to K
1. Only allowed if the interference serves a valid public purpose
a. And in this case, there was none (no unique health problems or public
safety interests)
2. Effect: labor laws are un-C
a. Fed: cant reg b/c of federalism
b. States: cant reg b/c of individ rights
iv. Deriving Right to K
1. Cant let it S PP go too far
2. Part of the liberty 14th A protects
a. Abstract
b. Natural law theory gives us right to K (extrinsic source)
i. Source can be historical, theological, etc.
v. Lochner Test
1. What is the govs justification? Is it an appropriate & legitimate end?
2. The means must have a direct relation to the end
a. Analysis of means is more strict than ends analysis
vi. Holmes Dissent: To say that S doesnt have the power to do this is buying into a
particular economic theory
vii. Harlan Dissent
1. We should be deferential
a. Leg is more responsive to the peole
b. Institutional competence
i. Leg can examine empirical matters; we cant
2. Whether the means are germane to a legitimate end
3. Cts job is to protect individ rights
f. NEBIA V. NEWYORK (1934) pg. 482
i. [NY leg established the Milk Control Board, fixed retail milk prices]
ii. Cant strike down w/ DCC b/c
1. Retail price (SDP) vs. wholesale (DCC)
a. Ct less likely to worry about retail regs b/c more likely influenced by
market forces
b. Retail is disaggregated, localized, etc. (not likely to implicate DCC)
2. CC power restrictive still so DCC viewed a little more narrowly at this point
iii. Economic rights are not absolute
1. If over-emphasize them, then hurt the public interest
2. Govs job is to regulate for the public interest
a. So pub interest > econ rights
3. If the people want to limit econ rights, they should be able to
iv. Test [rational basis]:
1. Is the regulation arbitrary or capricious? (lenient) and
2. Do the means have a real and substantial relation to the end?
53

g.

h.
i.

j.

k.
l.

m.

v. In pursuing public good, Ss can adopt any economic theory they choose
1. Cts cant override these policies
vi. Regulating for public interest can implicate any biz
1. So it is not the case that only a specific class of biz are subject to reg
2. No such thing as some bizs affecting public interest and others not
West Coast Hotel v. Parrish (1937) pg. 483
i. [upheld minimum wage law for women; overruled Adkins]
ii. There is no absolute & uncontrollable liberty (and no freedom of K!)
iii. Liberty is subject to the restraints of due process
1. Due Process = regulation which is reasonably related to the subject and
adopted in the interests of the community.
Carolene Products (1938) pg. 485: econ regulations should be upheld so long as they are
supported by a conceivable rational basis, even if it is not explicitly legislatures intent
CAROLENE PRODUCTS FOOTNOTE 4 (pg. 485)
i. Circumstances in which greater judicial scrutiny will be exercised
ii. Presumption of constitutionality less likely when the law:
1. Interferes with textually enumerated rights
2. Restricts the ability of the political process to work
a. Is the law a result of political process or not?
b. Does the law restrict political process (voting, free speech, etc)
3. Discrete & insular minority is being oppressed by the majority
a. Rationale: majority is represented by the legislature, so courts needed to
protect the minority from the majority
iii. Most relevant for substantive rights & EPC
WILLIAMSON V. LEE OPTICAL (1955) pg. 486
i. [Law specifying only two types of physicians could fit lenses, except w/ prescriptions,
claimed violated SDP]
ii. Dont care about reg purpose
iii. Rational basis: Law is valid as long as there is an evil to be corrected and it might be
thought that the legislative measure was a rational way to correct it
1. It doesnt need to be logically consistent w/ its aims to be C
2. It can even be wasteful! It is for leg to balance advantages/disadvantages
Ferguson (1963) pg. 488 [Kansas law only letting lawyers be debt adjustors, H: valid
deference to legislature]
PUNITIVE DAMAGES
i. The only remaining area where heightened due process review exists for economic
liberty
ii. Gore (1996) pg. 489: punitive award violated DP
iii. State Farm: also violated
iv. Phillip Morris
v. Exxon Shipping
GRISWOLD V. CONNECTICUT (1965) pg. 493
I. [CT law prohibits use of birth control violates SDP?]
ii. Majority
1. Penumbra of 1st, 3rd, 4th, 5th and 9th As = right to privacy
a. Right to privacy is a precondition for some of these amendments
2. Penumbras and Emanations
a. Logical b/c C clauses usually have implications
b. Similar to DCC (negative implication)
c. McCulloch & NP implied powers
3. Ban on contraception is really an invasion of privacy
54

iii. Goldberg concurrence

1. Focus on 9th A
a. Not restricted specifically to first 8 As, but not sure how far
i. Vs. NP predicated on effectuating enumerated powers
ii. 9th A doesnt have a similar limitation as NP
b. Test: 9th A is starting point for finding unenumerated rights
i. Then penumbra & emanation
ii. Traditions AND collective conscience
1. Tradition is not the sole foundation
2. So in situations w/o traditional foundation, look to
collective conscience
3. Collective conscience problem: who represents this? If S
leg passes a law, implies support by collective
c. Collective Conscience ways to resolve the problem
i. We dont care about 1 state, but instead the nations
ii. Leg might not always reflect collective conscience
iii. But how can courts judge it
2. Should use strict scrutiny
iv. Harlan Concurrence
1. Big Q: whether the statute violates basic values implicit in the concept of
ordered liberty
a. Non-incorp language
b. Harlan focuses on tradition
i. Maybe his arg is weakened though, but the change we have in
how we view homosexuality (for example)
2. There are limits to the extent to which a legislatively represented majority may
conduct experiments at the expense of the individual
v. Black dissent
1. Maj is using natural law, and they shouldnt
2. The only way to reconcile judicial restraint & rights protection is total
incorporation & BOR doesnt prohibit the CT law
vi. Griswold v. Lochner
1. Different liberties
2. Perhaps problem w/ Lochner wasnt method, but the right at issue
a. Right to privacy is diff from right to contract
i. Disaggregated, impacts fewer, regulation less vital
8. TAKINGS
a. Big Qs:
i. is X a Takings?
1. Actual appropriation definitely takings
2. Regulation leaving no economically viable use yes (Lucas)
3. Permanent occupation takings (Loretto)
ii. Is it property?
iii. If a taking, is it for public use?
1. If not, it must give the property back
b. Takings vs. SDP
i. SDP renders reg/law un-C
ii. Takings: S must compensate, reg/law isnt un-C
1. But does the cost approximate a prohibition on the law
c. Takings vs. Zoning
55

i. Breadth/particularity of how the burden falls

1. If small, more likely compensable takings
2. If broad, more likely non-compensable
ii. Types of land/usage
1. Constraints on non-injurious use of land maybe takings
2. Constraints on injurious use of land not takings
d. Possessory Takings
i. If the government confiscates or physically occupies -> taking
ii. LORETTO (1982) pg. 587
1. [cable boxes in apartments, NY law]
2. Rule: gov authorized permanent physical occupation (even minor) = takings
3. Reasoning: unique character of permanent physical occupation
4. Counter-arg: extremely minor imposition that could actually benefit
e. Regulatory Takings
i. Factors (case-by-case) (Penn Central pg. 586)
1. Goal: balancing public gain against private harm
2. Economic impact of the regulation on the claimant
3. The extent to which the regulation has interfered w/ investment-backed
expectations, and
4. The character of the governmental regulation
a. If physical invasion, probably takings
b. If interference to adjust benefits/burdens, probably valid
ii. Principles
1. If regulation leaves no reasonable economically viable use of property, then
takings
2. If it simply decreases the value of the property (but leaves uses), no takings
iii. Regulation is NOT a takings when:
1. The use isnt part of the title
2. The regulation prohibits noxious uses (Schoene Red Cedars pg. 583)
iv. Pennsylvania Coal v. Mahon (1922) pg. 581
1. If the regulation goes too far -> = takings
2. Dissent: regulation of use isnt inappropriate just because it deprives the owner
of the only profitable use of the land
v. Penn Central (1978) pg. 586
1. H: not a Takings b/c D still had economically viable use of land
2. Balancing test/factors (see above)
vi. LUCAS (1992) pg. 588
1. [lucas bought plots, SC passed a law a few years later preventing him from
building b/c of erosion concerns]
2. Debate over injurious/non-injurious land use
3. P arg: S has gone further than necessary to accomplish its purpose (overly
broad)
4. Ct: S reg denies P all economically viable use of land, so takings
a. But if those regs exist at time land is bought, then not taking
(reasonable expectation of use?)
f. Regulatory Takings Timing
i. First English (1987) pg. 590
1. If the gov regulation is sufficiently burdensome to qualify as a takings, then the
S must pay damages for the temporary taking
ii. Palazzolo (2002) pg. 590
56

1. Propery owner could challenge a regulatory taking restriction on his property

imposed prior to his acquisition of it
iii. Tahoe-Sierra (2002) pg. 590
1. Temporary development bans will be evaluated on case-by-case basis under the
Penn Central test (not using Lucas)
2. H: no takings in this case (purpose outweighed the temporary burden)
g. Regulatory Takings Conditions on Property
i. Test:
1. Essential Nexus: is the relationship b/t the end to be achieved (legit state
interest) and the condition close enough to substantially advance the interest
2. Rough Proportionality: there must be rough proportionality between the
condition and the impact of the proposed development in nature and extent
a. The burden must be roughly proportionate to govs justification
ii. NOLLAN (1987) pg. 591
1. S interest: visibility & beach access
2. Ct: wants a nexus b/t purpose and imposed condition (fails here)
3. Diff in framing of purposes leads to diff analysis
a. Public access vs. beach access
4. Nexus: there must be a strong connection b/t the condition and the government
interest
iii. DOLAN (1994) pg. 592
1. [P wanted to increase store & parking lot size, S required conditions]
2. Exactions/Conditions Test
a. Passes nexus
b. Fails rough proportionality
h. Public Use
i. Purpose: necessary prereq to govs exercise of takings power (413)
ii. Berman v. Parker (399) broad conception of public welfare; eliminating blight
qualifies and private may be given to private to effectuate Congresss purpose
iii. Midkiff (570)
1. so long as the taking is rationally related to a conceivable public purpose, it is
not proscribed by public use clause
2. Only the Takings purpose, and not its mechanics (e.g. private to private) must
pass scrutiny under Public Use
iv. KELO (2005) pg. 572
1. I: public use?
a. Remember: gov can only take property for the public use
2. Ct: public use may be satisfied even if being turned over to private dev b/c
there re public benefits
3. As long as the takings is rationally related to a conceivable public purpose,
then it is properly a taking because it is for the public use
a. Basically, so long as there is benefit to the public -> public use
9. CONTRACTS CLAUSE (Art 1 sec 10)
a. K Clause: no law impairing an obligation of contract
i. Only applies to states AND
ii. Only if S/local gov is interfering w/ existing Ks (Ogden v. Saunders)
1. States can regulate future Ks
iii. Challenges to Fed interference w/ K must be brought under DPC
iv. Purpose: to prevent States from using authority in a rivalrous fashion
b. Gov interference w/ private K only invalid if:
57

c.

d.

e.

f.

i. There is substantial impairment of the contract AND

ii. The law fails to reasonably serve a significant and legitimate public purpose
iii. Note: gov interference w/ gov Ks receives greater scrutiny b/c distrust that gov is
acting in its own self-interest (e.g. US Trust)
Test for local gov interference w/ private K:
i. Is there a substantial impairment of the K?
ii. If so, does it serve a significant and legitimate public purpose
1. E.g. El Paso
iii. Is it reasonably related to achieving the goal?
HOME BUILDING V. BLAISDELL (1934) pg. 595
I. [Mortgage extension law modified lenders K rights]
ii. Considerations for determining whether the change exceeds K clause
1. Emergency & constitutional power
2. Historical setting
3. Court precedent
4. Principles of construction
iii. State integrity is the foundation, so may abrogate Ks to protect the state
iv. Rationale
1. Ks are only as good as the ability to enforce them, and this is done by the gov
a. Thus private economic rights must be subordinate to Gov health
2. Also, the law is temporary
v. Dissent
1. It is during emergencies when Ss most likely to modify Ks
2. Modifying Ks = completely changing obligations
3. First principle K, then state power (converse of majority)
US TRUST V. NEW JERSEY (1977) (598)
i. S cannot use its authority to increase its power in violation of K clause
1. When activity as private market actor, must conform to K cannot abrogate it
to get around an obligation
ii. Rule: An impairment of S obligations may be C if it is reasonable and necessary to
serve an important public purpose, but complete deference is not appropriate when the
Ss self-interest is at stake
1. Higher scrutiny if gov interfering in a gov K
SPANNAUS (1978) pg. 599
I. [pension act]
ii. H: law is invalid b/c it works a severe, permanent and immediate change in the K
relationship (wasnt narrowly tailored emergency legislation like in Blaisdell)
iii. K clause necessarily implies retroactive burdens

58

Organization

Federalism
o Federal Preemption: Supremacy Clause
Express Privilege (We are legislating)
Implied Privilege
Field Preemption: Court will find when scheme is so pervasive, or there is a
dominant federal interest; catch-all test
o If field preemption, entire field is precluded
Conflict Preemption: If it is impossible to comply with both state and federal.
o If state law impeded Congresss approach
o Surgical Analysis
o Congress may waive preemption
o Dormant Commerce Clause: States cant regulate what Congress has the power to regulate.
Must be some constitutional thing.
State law that discriminates on interstate commerce is per se invalid
Facial Discrimination
Facially-neutral: Look at context/effects
o Discriminatory taxes/fees/rebates.
Undue Burden Analysis/Pike Balancing Test-If incident effect is clearly
excessive, it is invalid.
Market Participant Exception
Waiveable by Congress
Rights Doctrines (Economic Substantive Due Process + Takings)
o Economic Substantive Due Process While not dead, its strongly disfavored
Substantive Rights (Nebia): Congresss power to regulate trumps private economic
interests.
Rational-Basis Test: As long as some rational reason
o Takings Clause:
If government forecloses injurious use of property, it is a taking
Regulatory Takings
Lucas: Per Se Takings
Nolan/Dolan: Conditions imposed
Regulation-Proportionality
Public Use-Kelo
Hybrid-Federalism/Rights
o Contracts Clause
o Privileges Immunities Clause (Art. 4 sec 2)
Rights conferred by the states.
Only protects fundamental rights,
No market exception
States must show substantial reason
CAMDEN PROBLEM
59