EXECUTIVE BRANCH

Article II
o 1 - exec power shall be vested in the president
o 2 - P shall be Commander in Chief of Army and Navy
Power to make treaties (w/ 2/3 Senate approval)
Power to make appointments (w/Senate approval)
o 3 - P shall take care that the laws be faithfully executed (Take Care clause)
Asserting take care power MUST be based on an existing statute P claiming
[P+C] power based on statute that grants him authority
o 4 - P can be removed from office for impeachment/conviction of treason, bribery, high crimes
and misdemeanors
Executive Authority
Youngstown Steel v. Sawyer Article 2, 2 and 3 Trumans seizure of steel mills
o Legislation close but not actually authorizing specific exec action creates presumption against
validity of action
Take Care clause requires some statute giving P authority for EO
Contrast w/Dames & Moore
o Emergency powers NOT inherent in exec branch not implicit in express power vested in P,
exec power NOT enhanced by emergencies
Ps war powers as Commander in Chief limited to theater of war
emergency power tends to create emergencies
o Jackson concurrence framework for analysis
1) express/implied support from C to P = P given most authority possible
only federalism/indiv right objection could invalidate action
2) no involvement from C = P only has own independent powers
includes indifference/silence from C, like here
3) P acting against will of C = P only has express constitutional powers MINUS any of
Cs power over matter
must consider contemporary imponderables facts of case, history, prior rulings on
related cases
o EOs must be based on congressional statute OR Ps constitutional authority
U.S. v. Curtiss-Wright Corp. Article 2, 1, 2 sales of arms to Bolivia
P is sole rep of U.S. in foreign affairs (FA) = inherent powers and large degree of
discretion to P
Act of C not reqd as basis for P action in FA
Dames & Moore v. Regan EO re: Iranian property as condition of hostage crisis treaty

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 o [P+C] power = P has implied powers in foreign affairs
related statutes implicitly approved practice/showed legislative approval
enactment of legislation closely related to question of authority legislative intent to
give P broad discretion
o REVERSES prop from Youngstown that legislation closely related to, but not actually
authorizing, exec action suggests Cs disapproval
Policy considerations higher stakes, international conflict with great
importance/emergency, more need for exec leeway
Medellin v. Texas EO requiring states to comply w/Vienna Convention
o Ps authority to impose policy on states is narrow, even in foreign affairs
Federalism prioritizes states rights
o [P-C] b/c treaty non-self-executing, no legislation by C implementing policies = Ps EO was
unconstitutional
P not allowed to legislate via exec order
Warmaking Authority
Constitutional ambiguity re: allocation of warmaking powers
o C = expressly empowered to declare war, but P is U.S. rep in foreign relations
o Declaration of war appropriate for C big decision requires long deliberation and accountability
Ps powers
o Power to repel sudden attacks
one-off and defensive situations that requires fast action
what about in pre-emption or retaliation?
May be heightened re: terrorism (AUMF and War Powers Act)
o P bound to accept challenge presented by invasion and resist by force w/o explicit
permission by C
o P can use military in case of invasion/to suppress insurrection IF w/C authority
o When theater of war (per Youngstown) is America, what does that mean for Ps emergency
war powers? unsettled issue
Balance between unbounded exec power and enabling P to take decisive action
Hamdi v. Rumsfeld EO habeas violation of detained citizen/EC
o [P+C] for detention (in general) P authorized by AUMF to use military as necessary and
appropriate
Achieves purpose of AUMF even though AUMF doesnt address detention specifically
P does not have inherent authority to detain citizen as EC BUT AUMF gives authority b/c
it achieves legislative purpose
o Citizen EC entitled to opportunity to challenge EC status w/benefit of counsel under due process
when detention is ongoing
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 Process is due to every citizen UNLESS habeas corpus is suspended
Hamdan v. Rumsfeld EO suspending HC, esting tribunals as sole remedy
o Ps exec order violates UCMJs prescription for tribunals = [P-C use of power] =
unconstitutional
C authorized P to est military commissions in Art 21 of Uniform Code of Military Justice
[P+C] BUT they must comply with laws of war
Boumediene v. Bush exclusive procedural review of tribunals to DC Court
o Statute invalid b/c impermissible grant of authority by C to P to suspend HC w/o meaningful
review of facts for detention [P+C] invalid
DOJ Torture and Wiretap Memos
o P has constitutional power as C in C to conduct military campaign intelligence as necessary
component of defense
o AUMF - interrogation permissible, but Q of torture not addressed
o 42 U.S.C. 2000(d)(d) McCain Amendment prohibited cruel, inhuman, or degrading
treatment/punishment by gov of any detainees
o Foreign Intelligence Surveillance Act allegation of terrorism reqs special warrant to obtain info
(but P claimed C in C power to disregard)
Delegation and Control
Delegation for efficiency, transfer of responsibility

Exec agencies implement legislative principles estd by C - policy choices AND execution
An independent agency BY DEFINITION has restrictions placed on who may be appointed takes it
outside immediate control of P
intelligible principle standard C must provide guidelines to which person/body authorized to take action
is directed to conform (typically ANY C guidance is enough)
o no guideposts P has unrestricted power no way to challenge validity
o Panama Refining Co. C gave P power to regulate oil production
C cannot give to P a legislative role clearly articulated in Art. 1
Unconstitutional b/c no exec regulation
o Schecter Poultry Cs delegation of power to trade associations invalid
C cannot give away power to non-government actors
Unconstitutional b/c intelligible principle in statute too vague

Clinton v. City of NY Line Item Veto Act allowed P to cut budget items
o P cannot amend prior legislation by LIV = outside scope of power

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 o C cannot delegate it away (Article 1 7) presentment issue if not returned
Tension: is P is executing LIVA w/properly delegated authority and intelligible principle
[policy originates w/C] OR is P changing will of C by revising drafted statutes [policy
originates w/P]
INS v. Chadha C gave authority to INS but retained ability to veto its decisions
o C statute unconstitutional veto language violates Article 1, 7
o Once power is delegated by legislation, it must be revoked by legislation
o Action is legislative in nature if:
1) It alters legal rights/imposes obligations
2) It originates in Congress
3) Action could only be done by legislation through both Houses and P
o C cannot delegate power to a small portion of itself (i.e. Houses ability to veto INS decisions)
circumvents lawmaking process
o Whites dissent uphold accommodations between two branches ALA they dont violate
separation of powers by aggrandizement/encroachment
Hiring and firing officers additional method of C control
o Article 2, 2 appointments clause
With advice/consent of Senate, P shall appoint judges, officers, etc.
Does not address firing real issue of control
Execution of policy depends on Ps ability to count on subords to be aligned w/his
goals
If agency is independent C can put SOME qualifications on who can be appointed
(including term limits)
If agency is executive C has NO control over WHO is appointed, only over IF they
approve of Ps choice
Buckley v. Valeo P cant exercise power over officers of the U.S. whom he does not
appoint
o Three possible methods of P control of officers:
1) P can fire at will = officers under full control of exec (i.e. Cabinet)
2) P can only fire for cause/articulable reasons (i.e. indep agency heads)
3) P can only fire with C approval INVALIDATED by Myers
Myers limit on removal power improper b/c P had exec control over agency
under take care clause and removal is executive in nature C not entitled to
involvement
Humphreys Executor v. U.S.
o Congress can limit Ps ability to remove officer of admin agency if agency has quasi-
legis/judicial duties [method 2 firing for cause]
Agency is not exercising purely exec power not strictly under P control
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 Bowsher v. Synar Comptroller General had exec/legis duties but under C control
o Cs removal power over CG impermissible allows legislative veto of CGs executive choices
o Stevens concurrence policymaking process must adhere to Art. I C cant delegate unilateral
power to lesser rep (precedent from Chadha)

Checks or Limits on Executive Power

United States v. Nixon- P claim absolute priv over confidential tapes

o No ABSOLUTE absolute priv accorded on case-by-case basis
Content matters issues of national security/military have more weight
Privilege (of information) v. immunity (from personal suit)
Priv invoked by P but encompasses info w/in exec branch
Results of U.S. v. Nixon
o Mississippi v. Johnson (1867) courts cant issue injunction against P
o Nixon v. Fitzgerald (1982) - P immune from suit for damages relating to actions taken in official
capacity (here, improper filing of gov official)
o Harlow v. Fitzgerald (1982) P aides do not get prez immunity, but qualified immunity
liable only if law was clearly established
o Ashcroft v. Al-Kidd (2011) Qualified immunity protects all but the incompetent or those who
knowingly violate laws
o Clinton v. Jones (1997) P immunity doesnt extend to actions outside official capacity so P not
protected by precedent of Nixon v. Fitzgerald
Court constitutionally auth. by Art. III to exercise judicial review
o Cheney v. U.S. District Court - Ps claim to privilege stronger in civil cases
Impeachment
o Art. II, 4 impeachment for treason, bribery, other high crimes/misdemeanors
Impeachment = indictment, NOT conviction
judgment limited to removal from office
o Art. I, 2 House can impeach officers
o Art. I, 3 Senate tries all impeachment, chief Justice presides, 2/3 concurrence to convict
o different interpretations of high crimes and misdemeanors
1) Only major offenses against gov/abuse of gov power
2) Monstrous private crimes against individuals
3) Whatever House considers to be an impeachable offense
4) Any prosecutable crime

LEGISLATIVE BRANCH
Article 1, 1 - all legislative powers herein granted
8 - lay and collect taxes, pay debts, provide for the common defense and welfare
- regulate commerce among the several states
- constitute tribunals inferior to Supreme Court

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 - declare war, raise and support armies, provide/maintain navy, set rules for military,
activate militia to suppress/repel enemies
- make all laws necessary and proper for executing the foregoing powers and all other
powers vested by Constitution in the U.S. government
9 - writ of habeas corpus shall not be suspended unless public safety requires it
Article IV, 2 supremacy clause - federal law trumps state law (preemption) BUT powers not
enumerated to fed gov left to the states
Federalism = states are entirely separate level of gov, NOT intermediaries btw citizens and fed gov
o Cs powers limited to what is expressly given to it by Constitution (enumerated)
o States have plenary power over anything not enumerated to C or prohibited to states (10th Am)
Regulation of Interstate Commerce
Gibbons v. Ogden - Cs J to regulate commerce does NOT end at borders of states
Initial interpretation = dot v. line model = narrow reach for Congress
o Crossing state lines (i.e. railroads) = commerce v. production (dot) = NOT commerce
U.S. v. Darby 1) manufacture not commerce BUT shipment of goods is C has commerce clause
authority, regardless of local concern motive
2) employment activities affect IC (implications for production, trade, supply/demand,
etc.
o BIG CASE for expanding Cs authority over IC C can regulate ANY interstate activity
that affects IC
Wickard v. Fillburn wheat farmer who exceeded stat cap on wheat production BROAD REACH
o C CAN regulate under commerce clause b/c aggregate effect of activity is significant would
affect supply/demand on a large scale, even if effect is indirect
o C can regulate INTRASTATE activity w/substantial influence on price/market
1964 Civil Rights Act - passed under the BROAD commerce power, not 14th Amendment
Heart of Atlanta Motel v. U.S. hotel (public accommodation) that refused to serve blacks
o Evidence in legislative record shows real affect segregation policies have on national economy
(moral reasons are peripheral)
o Defers to Cs methods as long as there is a rational basis VERY low standard
Katzenbach v. McClung (Alis BBQ) blacks prohibited from eating in restaurant near highway
o Taken in aggregate, effect on IC is significant (same as Heart of ATL)
o restaurants are covered by Title II of CRA if they 1) serve interstate travelers and 2) a
substantial portion of food travels in IC
substantial portion = commerce will be affected AND restaurants are benefitting
U.S. v. Lopez fed statute prohibiting gun possession w/in school zones

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 o Activities must be economic in nature to fall under commerce clause
no evidence of how gun possession affects IC, has no hooks that give specificity to
regulation, chain of effect too attenuated = unconstitutional
o 3 situations in which C can exercise commerce power
1) channels of IC (shipment of goods)
2) instrumentalities of IC (railroads, highways)
3) intrastate activities that substantially affect IC
o concurrence - education w/in realm of state power upsets federalisms balance of power
U.S. v. Morrison fed statute providing civil remedy for victims of gender-based violence
o Target of fed legislation not an economic activity, despite amount of evidence C presented
o Tort and criminal law are realm of states fed gov cannot provide remedies for state laws
o Application of Lopez standard examine NATURE of activity
Gonzales v. Raich fed ban on pot use in conflict w/CA statute permitting it medicinally
o C can regulate non-commercial intrastate activity IFF failure to regulate could adversely
affect IC
o rational basis test back in play
o Scalias concurrence necessary and proper for C to ban it b/c that is the only way to regulate
it (commerce clause + N&P)
NFIB v. Sibelius - individual mandate portion of Affordable Care Act
o There is no commerce to regulate when people choose not to participate in market
outside the scope of Cs control b/c C can only regulate ACTIVITY
Failure to participate in market removes a person from IC control AND C cant
compel their participation
Sibelius contra. Wickard total inactivity contra. activity outside regulations
threatens constitutional order - private conduct subject to federal control
o Just because fed gov has ability to address a national problem doesnt give it the power to do so
o Ginsbergs dissent - necessary and proper argument individual mandate necessary to
uphold/make viable the entire ACA
Everyone will eventually need health care participation in IC inevitable
Implied Federalism Limits on Commerce Power
New York v. U.S. - Cs nuclear waste disposal statute made states subject to direct fed regulation
o C cant require states to use their own legislative branches to implement federal policy
o C cant make states subject to federal control by coercion
o C cant tell states what to do w/o allowing states to regulate it themselves

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 Accountability problem if fed gov makes legislation that states must enforce w/o say
Printz v. U.S. fed statute requiring state law enforcement officers to run background checks
o C cant compel states participation in federal program
States bear the cost of the unfunded mandate
Bond v. U.S. Bond prosecuted under fed Chemical Warfare Act statute
o If regulation on states is unconstitutional under 10th Am, individuals may challenge statute on
10th Amendment grounds b/c structural limits on fed power cover everyone w/in states
SPENDING POWER
Art. I 8 C shall have power to lay and collect taxesto pay debts and provide for the common
defense and general welfare of the U.S.
o C can put requirements on what states must do to get federal funding
o Spending clause gives C a way to get things done that isnt enumerated in Constitution
Ways to use federal spending to influence state policy:
o 1) $ given directly for a specific purpose
o 2) $ given for a purpose with conditional policies embedded
o 3) $ given on condition of related legislative change
o 4) $ given to compel some unrelated state action INVALID b/c gov couldnt compel action
otherwise
South Dakota v. Dole Fed statute withheld portion of federal highway funds until drinking age = 21+
o 4 general restrictions on spending power
1) must be in pursuit of general welfare
will typically defer to C on this point
2) C must unambiguously condition funding
3) must be related to national projects/federal interest
4) other constitutional provisions may bar conditional grant of funds
o grant of funds can not be coercive states must still be able to reject funds w/o significant
impairment of their functioning
broad ruling, deferential to federal gov
NFIB v. Sibelius - Medicaid portion of ACA
o Conditioning receipt of ALL Medicaid funds on states expansion of Medicaid program
INVALID b/c states cant opt out of expansion w/o losing significant amt of budget
o threat of loss v. hope of gain how to analyze fed govs conditions on funding
How coercive is it?
How significantly is states functioning affected?
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POWER TO ENFORCE CIVIL WAR AMENDMENTS
No state shall = fed government imposing regulations/limitations on states
Enforcement clauses in 13th, 14th, and 15th Amendments = C gives itself ability to enforce provisions
Constitution only allows enforcement against state regulations that show intent, but C has expanded
that to mean effects that result from systematic discrimination, even if effects are unintended
C can prevent 14th Am. violations by regulating state conduct that:
o Might lead to/risk violations (SC v. Katzenbach)
o May correlate with/be evidence of violations that that are hard to prove (City of Rome)
o C believes may actually be a violation even if not proven (Morgan)
Federal statutes must logically relate to violation
o 1) what does Cs statute require?
o 2) what is the constitutional violation that the statute seeks to prevent/enforce?
o 3) How does the statute address the alleged violation? (factual correlation, evidence, history)
o Statutes requirements must be congruent and proportional to the constitutional violation
they seek to protect against (Boerne)
Must prevent violation AND must not be harsher/broader than degree of violation
Requirements that are not C&P redefine limits or type of violation exercise of judicial
power outside the scope of Cs authority
Shelby County, Alabama v. Holder preclearance of voting laws w/o assessment of voting trends
o Remedy is not C&P to the violation at issue statute is impermissible
o Current actions must correspond to current need
Applies the rational basis test
Is it rationally related to legitimate government purpose?
Is there a fundamental liberty interest or suspect classification at stake?
o Dissent Cs power is strongest here C should decide if coverage formula should be amended
Q is only if Cs decision was rationally based legis record meets min reqs
Board of Trustees v. Garrett ADA required states to accommodate disabled people
o If states have rational basis for discrimination against a group outside of the immutable
categories listed in 14th Am., discrimination is permissible
ADA not C&P rational basis for discrim AND not systematic by states
Link is too weak (like Boerne)
Scope of state obligation is beyond what Const. requires

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 C cant regulate individuals under enforcement powers except for 13th Amendment prohibiting slavery in
general not limited to states
o Jones v. Alfred H. Mayer - Private individuals cant race-discriminate in sale of property
o U.S. v. Morrison VAMA struck down because individuals are the target of the statute, not states
legislation is not enforcement beyond reach of 14th Amendment

JUDICIAL BRANCH

The Power of the Court

Marbury v. Madison foundation of judicial power for every right, there is a remedy and it is
emphatically the province and duty of the court to say what the law is

Gave power to the judicial branch re: enforcing limits of each branchs constitutional
authority
Judiciary Acts delegation of power to SC contradicts Constitution invalid
Cooper v. Aaron AK claimed states right to interpret Constitution re: segregation
o Fed judiciary supreme authority re: Constitution = states must abide by SC ruling
o Supremacy clause makes fed judgment binding on all states regardless of indiv state laws
States/other branches can offer MORE protection than SC requires, but not less
Constitution > laws, Supreme Court > state interpretations
Limits on Judicial Power
Political control over SC - amendments, appointment of justices, impeachment, popular opinion
Congressional limits on jurisdiction
o Ex parte McCardle - Art. III 2 - exception clause in Constitution - SC has appellate J, BUT
with such exceptions and under such regulations as Congress shall make
SC can only look into whether Cs divesture of J is constitutional, not motive
C CAN take away SCs appellate J, NOT redistribute it or give original J
Exceptions clause cant restrict SCs core functions (i.e. indiv rights)
Standing
o Lujan v. Defenders of Wildlife alleged injury to conservationist group by ESA revision
must establish that it has standing to bring case before SC can rule on it
Legislation must result in real injury before it can be adjudicated
Weak causal connection no real redressability
Standing not precluded if isnt DO of regulation, but much more stringent reqs
Doctrine of standing grounded in Art. III case or controversy language

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 1) actual, imminent, concrete injury in fact
o type of injury matters particularized, beyond general public effect
2) causal connection btw conduct and injury must be fairly traceable
3) likelihood of redress from requested relief
Congress may not create standing by statute for suits by people who dont meet
constitutional requirements (no citizen-suit provisions)
Avenue of remedy: Court (protect indiv rights) v. Congress (protect public interest)
o Clapper v. Amnesty International govs surveillance practices challenged
Claiming current injury invalid if based on hypothetical future harm
Future injury too speculative may not occur or be causally linked to specific
statute being challenged
Burdensome measure taken voluntarily do not manufacture standing
o Windsor defense of DOMA brought on U.S. govs behalf re: recovery of tax from IRS
If party has some obligation to fulfill based on judgment party has standing
Agreement on outcome does not preclude standing as long as injury exists
o Hollingsworth v. Perry authority to defend Prop 8 given based on state law
State cannot create standing by giving away right to represent states interests
Representative must still have cognizable particularized injury
Political Questions and Non-Justiciability
o Questions political by nature or submitted to exec by Constitution/laws can never be made in
court not proper for the Court to address (Marbury)
o Specific parameters for what makes a question political rather than legal (Baker, Zivotofsky
Sotomayor concurrence)
Court reluctant to interfere if no judicially manageable standards exist, especially in
foreign affairs
political question = governmental, refers to executive or legislative issue
recourse = petitioning for legislative change
o Is there a limit on the actor who is being challenged and by what authority are they permitted to
make decision?
If limits exist = legal Q to determine if limits have been surpassed
o Baker v. Carr misrepresentation and dilution of voting power in TNs unrevised voting districts
Constitutional requirement for states to redraw districts = LEGAL Q
Six elements that define political Qs non-justiciable
1) Textual constitutional commitment of issue to other branch
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 o Concrete, constitutionally required that Court abstain
2) No judicially discoverable and manageable standards for Court
o no standards refers more to helpfulness than existence
3) Impossible to decide without policy determination made by other branch of gov
o mushier concept
4) taking case would show lack of respect for other branch
5) unusual need to adhere to prior political decision (i.e. war)
6) potential embarrassment to gov as a whole if different answers given to one
question (i.e. foreign affairs)
Items 1 and 2 carry most weight
Items 4-6 are prudential concerns should be considered together and advise cautious
action, not complete prohibition
Court stakes out territory of legal question
Burden is on to show issue is political Q, not legal Q
o Powell v. McCormack House tried to exclude Powell after reelection for bad behavior
LEGAL Q Does Constitution allow the House to exclude a member? (Who decides?)
Not Should Powell have been excluded? (underlying political Q)
Answer: House does NOT have authority to add qualifications beyond what is
enumerated in Constitution
o Nixon v. U.S. - Impeached judge trying to collect salary for his life tenure
Ruling - Art. I 3 Senate has sole power to try all impeachments as it sees fit = political
Q, not legal textual commitment to other branch (Baker standard #1)
o Goldwater v. Carter P invalidated treaty w/o congressional intent
Political Q b/c Constitution is silent no judicially manageable standards = non-
justiciable
Powells concurrence Legal Q, but case is not yet ripe
o Zivotovsky conflict btw statute and State Dept policy re: Israel as birthplace
Constitutionality of statute limiting Ps authority to recognize foreign governments status
on passport is separate from foreign policy issue and NOT a political Q
No textual commitment to another branch, no lack of judicial standards
Sotomayors concurrence - emphasizes primacy of first 3 factors of Baker elements
[P-C] situation = exec trying to circumvent legislation
o Ripeness and mootness
Appended to standing is the case READY to be heard?
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 To have standing, injury must exist
Case is not ripe if injury has not yet occurred
o Affects concreteness of injury standard
Case is moot if it is brought too late (aka settlement or judgment has occurred)
o No ability or need for redress
o Roe v. Wade s claim technically moot b/c she was no longer pregnant,
BUT alleged harm would be repeated if Court didnt rule

LIMITS ON STATE POWERS

Art. VI supremacy clause order of authority = Constitution federal laws treaties state laws
states can raise 10th Amendment objection re: any congressional action not enumerated to C
preemption = when federal laws control/override states
o 1) express = federal statute explicitly states that C exerts preemption power
o 2) field Cs statute so comprehensive that it creates ceiling which states cannot build upon
o 3) conflict clash btw state and federal law so one cant comply with both
Q of preemption always resolved by analyzing congressional intent
Preemption only comes into play when analyzing validity/permissibility of a state law based on if
Congress has already made legislation about the issue
o Clash between fed gov and states FED gov is raising issue to invalidate a state law
AZ v. U.S. (field preemption re: immigration policies)
o C established delicate balance w/its policies that additional state legislation disrupted AZ laws
are obstacles to what C is trying to achieve
C intentionally left empty spaces in legislation, NOT meant to be filled in by state law
o Scalia dissent states must be able to wield exclusion power to protect sovereignty
o Thomas dissent preemption should only stand when there is direct conflict, not just field
o Alito dissent C did NOT intend to occupy field leaving empty spaces was intentional so
states could supplement
dormant commerce clause
o C has express grant to regulate IC states DONT get to regulate it if C has addressed issue
states CAN regulate commerce for its citizens health and safety, but not to gain econ
advantage at expense of other states (protectionist policies disallowed)
must show legitimate evidence of health/safety concerns
o two ways a state may inappropriately interfere:

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 1) law creates a facial distinction between goods based on their origin (City of
Philadelphia)
2) law is even-handed BUT operates to burden out-of-state interests disproportionately
Facial discrimination
o City of Philadelphia v. NJ law precluding instate landfills from accepting OOS trash
cant create an in-state benefit by excluding out-of-state participants in market w/o direct
evidence of particular harm
states burden to show discretion re: origin is related to legit interest
Facial discrimination is presumptively unconstitutional (instate v. OOS)
o Maine v. Taylor state showed that origin of goods is directly related to environmental concerns
statute served a legitimate local purpose which could not be served as well by an
available non-discriminatory means
o West Lynn Creamery, Inc. v. Healy MA general milk tax subsidized MA milk producers
nondiscriminatory tax plus local subsidy program unconstitutional
Scalia concurrence continuum of validity
1) discriminatory tax = invalid
2) non-discriminatory tax w/exemptions for insiders = invalid
3) non-discriminatory tax put into segregated fun for rebates to insiders invalid
4) subsidy for insiders paid from general state funds = valid
Market participant doctrine - states may discriminate when they act as market-participants,
rather than as regulators, because they are creating commerce rather than restricting it
o Acting like private companies, subject to the same opportunities/competition
o Hughes v. Alexandria Scrap Corp. MD buying junked cars paying bounty for MD plates
if state participates in market, it can make policies that favor citizens/residents
o South-Central Timber Development v. Wunnicke AK could not impose downstream
conditions on the timber-processing market as a result of its ownership of the timber itself
Limits market-participant doctrine to permitting state-imposed burdens w/in its
own market, but not peripheral/related ones
Non-discriminatory laws w/disproportionate burden
o South Carolina v. Barnwell S.C. statute prohibiting large trucks on state highways
Balancing benefit to state from prohibition (i.e. safety) vs. burden on IC
Did state legislature act w/in its province and is regulation reasonable?
Is safety concern REAL? court will probably defer
o Southern Pacific v. AZ AZ statute limited trains to a certain number of cars
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 burden on IC was significantly higher than the benefit to AZ = unconstitutional
State was not incurring a proportional amount of the costs of the law
No distinctive safety benefit from statute
Affects how carriers operate out of state too beyond scope of state authority
o Hunt v. Washington State - N.C. statute re: apple grading on containers
burden on particular OOS interest is high w/o any real reasoning/effect behind it
Benefits NC apple crop while harming WA apple sales indicates discriminatory intent
o Kassel v. Consolidated Freightways Corp. - IA statute prohibiting use of certain length trucks
unconstitutionally burdens IC state could not ID strong safety reasons AND exemptions
made it seem discriminatory against other states
How to analyze dormant commerce clause cases
o If a statute discriminates on its face (protectionist intent rebuttably presumed), it is
unconstitutional UNLESS:
State is acting as a market participant (because state can choose its market partners)
Hughes; Reeves; Wunnicke
State shows 1) state interest justifies distinction based on origin AND 2) no feasible
alternative exists
Philadelphia v. NJ; Maine v. Taylor
Very rare for this to be effective
o If a statute is even-handed but imposes incidental burdens on interstate commerce (no
protectionist intent presumed), it is constitutional UNLESS:
Challenger shows that the benefits of the statute are not real and do not outweigh the
burdens on commerce
If these elements exist, it casts doubt on the non-discriminatory nature of the
statute
Southern Pacific; Hunt; Kassel

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