CONSTITUTIONAL LAW I OUTLINE.

Kendall

I. MARBURY V. MADISON (1803)

A. JUDICIAL REVIEW IS BORN

-FACTS: Marbury was appointed at end of Adams admin. But the Commission was not
delivered. Jefferson did not want to deliver it when he became President. So, pursuant to
Judicial Act of 1789, Marbury files for a Mandamus action in the Supreme Court to
compel the commission of the order.

-ISSUE: Conflict between Judicial Act of 1789 and Constitution. Art.III, Supreme Courts
Jurisdiction limited only to certain cases and controversies. So does the Constitution
win, or does the Congressional Enactment, which expands authority, win?

-HOLDING: Despite fact that Marbury has a legal right to the commission, and is
entitled to a remedy, he cannot get the remedy by the Supreme Court, because the
Supreme Court does not have Jurisdiction over Mandamus orders.

-Constitution vests judicial power in the Supreme Court, has Jurisdiction over
certain cases and controversies, where it has appellate authority. The 1789
Act tries to expand on that Jurisdiction. Repugnant to Constitution.

-The National Govt is one of Limited and Defined Powers; is limited by the
Constitution. No act by Congress can expand on the limitations. The Constitution
is written, so it must have meaning.

-Per CJ Marshall, the Written Constitution is the single greatest

improvement on Political Institutions.

-The duty and authority of the Supreme Court to declare whether an enactment is
repugnant to the Constitution. Justified by Art. VI Supremacy Clause, and Judicial
oath to uphold the Constitution.

-NOTE: Judicial Review by the Supreme Court is NOT in the text of the
Constitution. Marshall reasons to this conclusion by saying that Constitution is
written, so that it must have meaning. And that meaning is to limit the powers of
Govt. Supreme Court has the authority to determine what is not Constitutional
because it has authority granted by Art.III, as well as Supremacy Clause, and oath
swearing to uphold the Constitution. Argument not all that great, but its the law.

B. CASES ABOUT JUDICIAL REVIEW.

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 -US v. Carolene Products. Presumption is that all Acts of Congress are Constitutionally
valid, with some exceptions, like where a Minority is getting screwed over. Then,
Supreme Court gives it Stricter Scrutiny.

-Martin v. Hunters Lessee. SC remanded a civil case back to the VA Supreme Court, did
not follow the SCs order. Back to SC, rules that their order is binding. Cites the
Supremacy Clause. Reinforces SCs authority.

-Cooper v. Aaron (1958). After Brown v. Bd of Ed. SC cited Supremacy Clause again
when AR laws contravened the desegregation. As result of SC, Eisenhower sent troops to
Little Rock HS to make sure followed SCs order. Reinforced SC authority.

-Cohnes v. Virginia. Same as Hunters Lessee, but a criminal case. VA Supreme Ct didnt
follow SC order. Exception.

II. FEDERALIST PAPERS

-FEDERALIST 37. Per Madison, Interpretation is a difficult thing. 3 Powerful Reasons

for Interpretation of Constitution.
1) Nature of Constitution requires interpretation, and it is difficult.
2) Our senses are limited, inherently flawed, have imperfect feedback.
3) the Nature of language itself is ambiguous.
3 sources of Vagueness:
1) Indistinctness of the object.
2) Imperfection of the organ of conception
3)Inadequateness of the vehicle of ideas.

-FEDERALIST 10. (not covd in class). A strong Union breaks and controls the violence
of factions. Party conflicts lead to disorder. Democracy does not cure factionalism.
Republican government refines popular passions.

-FEDERALIST 44. Limits on State Power and a Broad Interpretation of Federal Powers.
Limit to express powers is not desirable. Complete enumeration of powers not possible.
Implied powers unaviodable. Checks and Balances and the Election process ensures that
Congress will not usurp power.

-FEDERALIST 47. Madison. Accumulation of all powers in the same handsmay justly
be pronounced as tyranny. But this does not mean that these departments ought to have
no partial agency in, or no control over, the acts of each other. Where the whole power of
one dept is exercised by the same hands which possess the whole power of another dept,
the fundamental principles of a free constitution are subverted.

-FEDERALIST 67. Hamilton is reacting to the Glenn Becks of his day, the intellectually
dishonest.

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 -FEDERALIST 69. Hamilton says that President is Not the King.

-FEDERALIST 70. Most relevant power to the Executive. Everyone would agree that
unity of the Executive is one of the best provisions of the Constitution.

III. THE 6 MODALITIES OF INTERPRETATION

1) TEXTUAL. Interpretation by understanding the dictionary meaning of the words used.

-Example(s):

2) ORIGINAL INTENT. Interpretation by understanding the intention of the Founders or

Statute drafters.

-Examples(s):
-US v. Morrison. CONCUR, THOMAS. The notion of a substantial effects test
under the Commerce Clause is inconsistent with the original understanding of
Congress powers and with this Courts early Commerce Clause cases Until this
Court replaces its existing Commerce Clause jurisprudence with a standard more
consistent with the original understanding, we will continue to see Congress
appropriating state police powers under the guise of regulating commerce.

3) STARE DECISIS. Interpret by following a previous decision.

-Examples(s):

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4) PAST POLITICAL PRACTICE. Interpret with a view to non-judicial functions of the
government.

-Examples(s):

5) STRUCTURALISM. Interpret by looking at how decision fits within the framework of

the Constitution.

-Examples(s):
-US v. Lopez. KENNEDY: Of various Structural Elements in the Constitution
Separation of Powers, checks and balances, judicial review, and Federalism only
concerning the last one does there seem to bemuch uncertainty respecting the
existence, and the content, of standards that allow the judiciary to play a
significant role in maintaining the design contemplated by the Framers.

6) CONSEQUENTIAL. Interpret with a view to what the consequences of this decision

might be.

-Examples(s):
US v. Butler. DISSENT, STONE. Majoritys reasoning [in holding the Agricultural
Adjustment Act] would lead to absurd results. The government may give seeds to
farmers, but may not condition the gift upon their being planted in places where they
are most needed or even planted at all. The govt may give money to the unemployed
but may not ask that those who get it shall give labor in return, or even use it to
support their families.

IV. LIMITING JUDICIAL POWER

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A. NO ADVISORY OPINIONS; SUPREME COURT JURISDICTION LIMITED
STRICTLY TO CASES AND CONTROVERSIES.

-Muskrat v. US (1911). SC says that it does not give Advisory Opinions. For SC to have
Jurisdiction, the case requires CONCRETE ADVERSARIALNESS.

B. JUSTICIABILITY.

-In order for SC to have Jurisdiction over a Case or Controversy, the following 3
elements must be present.

1) STANDING. 3-Part Test:

1-Personal Injury (economic or otherwise); and

2-Action must be traceable back to Ds action (no matter how attenuated; recall
the Douglas Footsteps along the River case).
3-Redressability (Ruling in Ps favor will make him whole again).

-Lujan. Use the 3 factors.

-Summers v. Earth Island. The environmental case. SC ruled their injury was no
longer redressable because they had settled.

-Exception: 3rd Party Standing. Eg, if an abortion doctor challenges an abortion

restriction, or where a bar owner challenges a drinking age. 3rd Party must be
within the zone of interest.

2) RIPENESS. Claim must be mature enough so that all conditions must occur to
create required Personal Injury. 2-Part Test.

1-Fitness of Issue for Judicial Review. Further factual development, Concrete

Adversarialness.
2-Hardship of parties of withholding court consideration.

-Lujan v. Defenders of Wildlife (1992). Environmental orgs filed for relief to

enjoin compliance with Endangered Species Act. HOLDING (Scalia): lacked
Standing, no personal injury by P.

-National Park Hospitality v. Dept of Interior (2003). Case not ripe.

3) MOOTNESS. A case must be alive at all stages of Judicial Review.

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 -Azonians for Official English v. Arizona (1997). When employee-challenger left
state employment, her claims became moot since her job-related concerns had been
removed.

-Exceptions: 1) capable of repetition, yet evading review. Abortion cases; when

Claimants status necessarily changes during Appeals process. Roe v. Wade. 2) Class
Action suits with fluid, new plaintiffs.

-POLITICAL QUESTION; an exception to Judicial Review . A Case or Controversy

that satisfies the 3 elements is nevertheless not Justiciable if it is a Political Question. The
power of the Government is within the 3 branches. If the power that is the basis of the
claim is strictly within the powers of one of the branches, the issue is a political question,
not justiciable. Based on Separation of Powers.

The Political Question 2-Part Test is: 1) Where there is a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or 2)
a lack of judicially discoverable and manageable standards for resolving it. Baker
v. Carr.

-Baker v. Carr (1962). Reapportionment case. Issue did not present a non-
justiciable Political Question case

-CONGRESSIONAL POWER TO LIMIT SC JURISDICTION.

-Ex Parte McCardle (1869). Congress repealed law that gave McCardle Jn to
appeal to SC. SCs Jn is granted by Art. III, but it can be lessened by Congress.
Congress has abrogated Jn, which was McCardles case. But McCardle can get
SC Jn by other means. The SC will never let Congress put it out of business.

V. CONGRESSIONAL POWER; MCCULLOUGH V.

MARYLAND (1819).

MCCULLOUGH V. MARYLAND (1819)

-FACTS. MD enacted taxes on national bank as a way to discourage it from doing

business. State agent goes to the bank to collect the tax, the banker says go fuck
yourself, MD makes the banker a criminal.

-ISSUE: Whether the state of MD has the power to exercise the kind of tax it imposed
on the National Bank.

-HOLDING: NO! See below for highlights of CJ Marshalls masterpiece

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 -Constitution was created by the PEOPLE, not the States. Thus, the power of the
national govt is not dependent on the States, but rather was delegated by the
People. Points to the Text, We the People.

-Not all the powers are listed in the Constitution. The nature of the Constitution is
fundamentally different from any other document. It is impossible to enumerate
the every single power granted to Govt for all time. In considering this question,
we must never forget that this is a constitution we are expounding.

-Constitution is a grant by the People to the Govt over 2 huge things: 1) The
Purse, 2) The Sword. These are the means to an end. The Bank here is the
manifestation of those means. So, within US power to incorporate the bank.
Whats the ends? The Preamble, Mission Statement.

-powers extend from St Croix, from Atlantic to the Pacific. Pretty expansive,
exceptional view of the US govt and its powers. US, Hamiltonian view.

-The Necessary and Proper Clause. Placed among grants of power, not its
limitations. It enlarges the Govts power, not diminish it. INTENDED to be a
grant of power.

-Necessary = Convenient. NOT mean as in absolute necessity.

- Let the end be legitimate, let it be within the scope of the constitution, and
all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional. RULE OF THE CASE for what is
constitutional.

-The Power to tax is the power to Kill. And, the power to regulate = kill.

VI. THE COMMERCE CLAUSE.

-Article I, sec. 8, cl. 3: The Congress shall have Power to regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes. A GRANT OF POWER!!!

-PERIOD 1; THE BEGINNING-1875. Power of national government is broadly defined. The

power to reach into the States to regulate Commerce.

-Gibbons v. Ogden (1824). MARSHALL. NY legislature granted a monopoly to navigate

the waterways of the State, assigned to Ogden. Gibbons was granted a federal license to
navigate the waterways. Gibbons sought an injunction enjoining him from navigating NY
Waters.

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 -HOLDING: The act of a State inhibiting use of navigable waters to any vessel having a
federal license by Act of Congress comes in direct collission. NY monopoly invalid.

-Congress was granted the power to regulate Commerce among the several States.
A Plenary Power.

-Regulate = Kill.

-Commerce = Intercourse.

-Among the Several States = Intermingled with.

-Congress has the power to regulate commerce that only occurs within a States
borders if it affects other States.

-The Daniel Ball (1871). The Daniel Ball was a small vessel operating within a short
distance with MI waterways. Some of the items it carried were destined for outside MI,
or originated outside MI.

-HOLDING: Subject to Federal Regulation under the authority of the Commerce Clause.
Did not matter that only operated within MI.

-PERIOD 2; 1875-1935. Dual-Federalism Era. Concerns over Federal Govt power infringing
on States Power, Federalism issue. End of Slavery, Industrial Revolution. SC struggling with
these different interests

-The Takeaway: Regulate Instrumentalities of Commerce, In-Stream of Commerce

(NOT before or after), and Noxious Articles. Could not regulate anything before or
after Commerce. Using the Direct-Indirect Effect Test.

US v. EC Knight (1895). G-men alleged a conspiracy to monopolize the manufacture of

sugar, tried to prosecute under authority of the Commerce Clause.

-HOLDING: Manufacture is outside the scope of the Commerce Clause. Manufacture

does affect Commerce among the States, but it is an indirect effect. Does not qualify.

The Shreveport Rate Case (1914). HUGHES. TX Railroad Commission prescribed

commodity rates for INTRAstate TX ry carriage. Adversely affected trade between TX
and LA.

HOLDING: Falls within Commerce Power. If Intrastate activity has a close and
substantial relationship with Commerce, it can be regulated.

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 Swift & Co v. US (1905). CHI Stockyards Monopoly case, all within a single State.
HOLDING: can be regulated under Commerce Clause, in the Stream of Commerce.

Police Power.

The Lottery Case (1903). HARLAN. Feds pass law under Commerce Clause making it
illegal to cross state lines with lottery tickets.

HOLDING: Feds can Regulate under Commerce Clause. Lotteries are corrupt, gambling.
Federal intervention help States from keeping these bad elements out. Noxious Articles.

Hoke v. US (1913). HOLDING: The Mann Act, which prohibited crossing state lines for
purposes of sex, enacted by authority of Commerce Clause, is within its scope because it
regulates bad behavior.

Hipolite Egg v. US (1911). HOLDING: Fed. Regulation of commercial Rotten Eggs

within Commerce Power, because it is a noxious article.

Hammer v. Dagenhart (Child Labor Case) (1918). HOLDING: Fed Govt cannot
regulate companies that use child labor under the Commerce Clause. Prior cases
regulated output. Here, they are trying to regulate product from making it into commerce
at all, not within Commerce Power.

Beginning of the End of Period 2; Schechter Poultry v. US (1935). Brooklyn Poultry

guy sold a sick statute, which violated the National Industrial Recovery Act, a response to
the Great Depression.

HOLDING, HUGHES: Enforcement of Industrial Code exceeded the Commerce Clause.

NIRA Unconstitutional. Extraordinary conditions do not enlarge Constitutional Power.
Used the Direct-Indirect Test.

-PERIOD 3; 1935-1995. New Deal Era. Reversion back to the McCullough/Gibbons expansive
interpretation of the Commerce Clause.

-The Takeaway: Substantial Effects Test, Aggregation Principle. Extension of

Commerce Clause to cure societal ills, like Race problems.

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NLRB v. Jones & Laughlin (1936). National Labor Relations Act protected union
organizing under authority of the Commerce Clause, as a response to violent outbreaks of
labor unrest. J&L challenged the Act.

HOLDING, HUGHES: The NLRA is valid under Commerce Clause. Labor relations has
a substantial effect on Commerce. The commerce power is plenary. Cite Daniel Ball,
Shreveport Case. Revert back to Marshalls expansive view.

-But here was Production, same as in EC Knight. So how does SC distinguish?

that employees were engaged in production is not determinative. The question
remains as to the effect upon interstate commerce of the labor practice involved.

US v. Darby (1941). Congress passed the Fair Labor Standards Act, which prevented the
shipment of certain products into Interstate Commerce by companies who did not comply
with hour and wage standards.

HOLDING, STONE: Constitutional exercise of Commerce Clause. Manufacture, by

itself, is not Interstate Commerce. A reversion to Gibbons. But the shipment of products
is commerce, and thus within Congress power. SC likens what is regulated here to
Noxious Articles; Congress may exclude from Commerce articles it believes injures the
public health, morals, or welfare Not an invasion of State power. Turns the noxious
article exception into the rule. Congress may regulate intrastate activities where they
have a Substantial Effect in Interstate Commerce.

-Overrule Child Labor Case, cite its classic dissent.

-10th Amendment does not apply here, it is but a truism.

Wickard v. Filburn (1942). Under the Agricultural Act of 1938, Congress set certain
quotas, which Filburn was subject to. Filburn went over the quota just a little bit to feed
his livestock and for home consumption, which the government busted him for.

HOLDING, JACKSON: Enforcement of the quota here was a Constitutional exercise of

Commerce Power. That the wheat at issue was wholly for home consumption, and that
the activity was of an intrastate character is not dispositive. Filburns acts have a
Substantial Effect on Interstate Commerce because of the AGGREGATION
PRINCIPLE. In other words, if everyone who was similarly situated with Filburn did
what he did, it would have a Substantial Effect on the wheat market, and therefore
Interstate Commerce. So, it is within Congress power to regulate and enforce.

-That an activity is production, or that it is local, is no longer stops regulation

under the Commerce Power.

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Civil Rights Cases.

Heart of Atlanta Motel v. US (1964). Congress passed Civil Rights Act of 1964 under
authority of the Commerce Clause, which says all persons shall be entitled to full and
equal accomodation without discrimination or segregation on ground of race if its
operations affect commerce. Motel here has out of state guests. Challenges
constitutionality of the Act.

HOLDING, CLARK: Valid exercise of the Commerce Power. Using the Substantial
Effects Test. Discrimination by race places burden on Interstate Commerce, since Blacks
cannot get lodging, thus discouraging lodging. Thus, discrimination substantially affects
Commerce. That the motel is local is no matter, still affects Commerce.

Katzenbach v. McClung (1964). McClung, owner of Ollies BBQ, middle of nowhere.

Civil Rights Act, if serves interstate travelers, or if substantial portion of food has moved
in Interstate Commerce, cannot discriminate.

HOLDING, CLARK: Valid exercise of Constitutional authority. Follows Wickard; Ollies

only serves locals and buys only a small amount of food out-of-state, but if aggregate the
effect to all places similarly situated, would have a Substantial Effect on Commerce.

Perez v. US (1971). Perez convicted of making extortionate extension of credit, in

violation of Federal Consumer Credit Protection Act. D argued the Act exceeded
Commerce Power. HOLDING, DOUGLAS: Even if loan-sharking was purely local, it
affects Commerce. Organized Crime, which is all over the country, is financed by such
activities. DISSENT, STEWART: To say loan-sharking affects Interstate Commerce,
Majority must do more to distinguish it from local crime.

Hodel v. VA Surface Mining (1981). Act restricted private surface-mining. Mining Assn
claimed Act exceeded Commerce Power, because regulated use of private lands within
borders of State. HOLDING, MARSHALL: Valid under the Commerce Power. Where
Congress determined that an activity affects Interstate Commerce, courts only need
inquire whether Congress findings are rational.

Hodel v. IN. HOLDING, MARSHALL:Upheld Act; SC can invalidate a Congressional

exercise of its Commerce Power only where it is clear that there is no rational basis for
Congressional finding that the activity affects Commerce. CONCUR, REHNQUIST:
The test is Substantial Effect, not this Rational Basis business.

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-PERIOD 4; 1995-PRESENT. Lopez/Morrison/Raich. Disaggregation and Limiting of the
Commerce Clause.

The Takeaway: Commerce among the several States includes the following: Channels of
Commerce, Instrumentalities of Commerce, and Activities that have a Substantial
Effect on Commerce.

-How determine if an activity has a Substantial Effect? Look at the following 4

FACTORS: Nature of activity (is it local?); economic/non-economic activity?; the
Jurisdictional Link in statute; and Findings, if relation between activity and
Commerce is too attenuated, then probably not within Commerce Power.

US v. Lopez (1995).Congress passed under the power of the Commerce Clause the Gun-
Free School Zone Act, criminalizes possessing a firearm within a school-zone.

HOLDING, REHNQUIST: the Act is NOT a valid exercise of the Commerce

Power prescribed in the Constitution.

-3 categories of an activity that may be regulated under Commerce Clause:

1) use of channels of Interstate Commerce, 2) Instrumentalities, persons,
or things in Interstate Commerce, including things in solely intrastate
activities, and 3) (intrastate) Activities that have a Substantial Relation to
Interstate Commerce.

-Gun Possession within a school zone is neither a channel nor an

instrumentality, so it must fall under 3).

-Whether an activity has a Substantial Effect on Commerce is determined

by looking at the following factors:
1) Is the regulated activity local? (Yes, law enforcement local)
2) Is regulated activity economic? (NO, possession of a firearm is
NOT economic).
3) Is there a Jurisdictional element in the statute? (there is nothing
in the statute that requires the gun crossed state-lines).
4) Any connection between activity and Interstate Commerce?
(Yes, there is between gun possession and Commerce. But, the
connection is too attenuated to have a Substantial Effect on
Interstate Commerce.)

-Cites all the New Deal and Civil Rights cases, so they are still good law.
Just is stopping the expansion of the Power.

-CONCUR, KENNEDY: Of various Structural Elements in the

Constitution Separation of Powers, checks and balances, judicial review,
and Federalism only concerning the last one does there seem to bemuch

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 uncertainty respecting the existence, and the content, of standards that
allow the judiciary to play a significant role in maintaining the design
contemplated by the Framers.

-Federalism = Unique contribution of the Framers to political

science and political theory. Freedom was enhanced by the creation
of 2 governments, not 1.

-By Federalism, this is a State concern, for which power is

reserved for the States.

US v. Morrison (2000). Congress passed Act that provided a federal remedy for victims
of gender-motivated violence by authority of the Commerce Clause. Challenged by D.

-HOLDING: NOT a valid exercise of, and exceeds the power in Commerce
Clause. Follows the Lopez methodology.

-Factors for Substantial Effect:

1) Is the activity local? Yes, law enforcement is local
2) Is activity economic? No, Rape is not economic.
3) Jurisdictional element in statute? Nothing in statute claims that
regulation is pursuant to Commerce Power.
4) Connection between Activity and Commerce? Yes, there are findings
that show a connection, but is too attenuated.

Gonzalez v. Raich (2005). Pot users in CA, complying with local law, a wholly local
activity, nothing passes through Interstate Commerce. But, against Federal Law, pot
illegal in almost all circumstances.

HOLDING, STEVENS: Valid under Commerce Clause. No need for a showing of

Substantial Effect; just need to show that Congress had a Rational Basis in
passing legislation. There is such a basis here. Cites to Lopez and Morrison, says
caselaw broader than just those 2. Cites to Wickard to justify regulation of a
purely local activity.

DISSENT, OCONNOR: Federalism: States are laboratories of democracy. We

are losing that here.

VII. THE TAX POWER AND SPENDING POWERS.

THE TEXT.

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Art. I sec. 8 cl. 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general Welfare of the
United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Hamilton vs. Madison. For tax and spend power, 2 had differing views. Hamiltons view
was that the Tax and Spend Powers were not limited by the other powers in govt, but
were independent powers; and that Tax power was an independent way to raise revenue
for General Welfare and Defense.

Hamiltons view has won.

A. THE TAX POWER.

Bailey v. Drexel Furniture (The Child Labor Tax Case) (1922). This case was a result of
the Child Labor Case. So Feds taxed the net profit of firms that employed child labor.
HOLDING: Unconstitutional under the Tax Power. Tax is defended on ground that its a
mere excise tax. But this Act is something more. Its regulatory effects are palpable.

The Takeaway: So long as a Tax is imposed uniformly throughout the US, and it
raises revenue for purpose of General Welfare or common Defence, it is a
Constitutional exercise of power under the Tax Power. It is an extensive power,
with few restraints. Kahriger. Basically the law now is that as long as a tax is
imposed for some purpose to raise revenue, it is Constitutional. Only where there
is no purpose to raise revenue will a uniform Tax be held to be Unconstitutional.

B. THE SPENDING POWER.

THE 4-PART TEST, FROM DOLE. An act is constitutionally valid under the Spending
Power if:
1) Spending power must be pursuant to the General Welfare, with deferrence to
Congress judgment.
2) The condition must actually give States an unambiguous option, so that States
may unambiguously answer the Feds volley.
3) Condition on Federal Grant of $ might be illegitimate if it is unrelated to a Federal
interest; in particular, national projects or programs.
4) Other Constitutional provisions might be an independent bar to conditional grant
of federal funds.

US v. Butler (1935). Agricultural Adjustment Act of 1933 being challenged. Act tried to
balance production and consumption of ag. Commodities by empowering Sec. of Ag. to enter
into contracts with farmersto reduce acreage planted, in exchange for benefits. Farmers
challenged Act (had Standing), attacked the Regulatory aspect of Spending Power.

HOLDING, ROBERTS: AAA an unconstitutional exercise of the Spending Power. True,

Spending Power, per Hamilton and J. Story, is an independent Power from those Enumerated

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 in Art I sec 8. However, But Congress here cannot tax/spend their way around the Commerce
Clause, because power of such regulation is reserved to the States under 10th Amendment.

DISSENT, STONE: Majoritys view would lead to absurd results.

South Dakota v. Dole (1987). SD allowed 19-yr olds to buy beers. Federal statute required
the Sec of Transportation to withhold 5% of Federal Highway $ that would otherwise be
payable to states that have a minimum drinking age below 21. SD wanted a declaratory
judgment, claiming the statute violated the Spending Power.

HOLDING: Act is constitutionally valid under the Spending Power. Followed the 4-Part
Spending Power Test above. Also, Act is not a coercive inducement, only 5%.

So, the Hamilton-view wins in the Spending Power. Expansive power.

VIII. FEDERALISM. National Power as Affecting the Powers of the

States.

A. PREEMPTION. Of State Power by Federal Power.

THE TEXT.

Art. VI cl 2;THE SUPREMACY CLAUSE. This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of he United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.

1. IMPLIED PREEMPTION. Where Preemption is inferred as a matter of

Congressional intent to displace possibly inconsistent State Regulation.

Pennsylvania v. Nelson (1956). Nelson was a Communist. PA arrested him for violating the
PA Sedition Act, which prohibited bringing the Federal Govt into contempt or disrepute.

HOLDING, WARREN: PA Sedition Act is Unconstitutional because it is preempted by

Federal Statute.

The Implied Preemption Rule.

1) Scheme of Federal Regulation is so pervasive as to make reasonable the inference
that Congress left no room for States to supplement it.

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2) The Federal Statute touches a field in which the Federal Interest is so dominant that
the Federal system be assumed to preclude enforcement of State laws on the same
subject.
3) Danger of conflict between State statute and Federal administration of Fed Program.
State involvement may create problems for achieving National goals.

Pacific Gas v. State Energy Resources Conservation and Development Cmsn (1983).
CA Statute said that building a nuclear plant was conditioned on the CA Energy Comsn
finding there would be an adequate capacity for storage of fuel. The Comsn then
imposed a moratorium on building new nuke plants until the US approved a permanent
disposal method. Federal Atomic Energy Act deals with same subject matter. Does the
Fed Statute preempt the CA statute?

HOLDING, WHITE: Fed. Statute does NOT preempt the CA statute imposing a
moratorium on nuke plants. Cites to Nelson, and the pervasive language.

-Field Preemption: When Fed Govt totally occupies a field, or a portion of it, as
in here, the test of Preemption is whether the matter on which the State asserts its
right to act is in any way required by the Federal Government.

-Here Fed Govt does totally occupy the field of Atomic Energy. However, because
CA says the moratorium is based on economics, it is not preempted. If they made
their decision out of safety concerns, then that decision would have been
preempted.

-Here, SC has a Presumption against Preemption.

Crosby v. National Trade Council (2000). MA passed a statute barring State entities
from doing business with any company doing business with Myanmar (Burma). Congress
then passed an act imposing a set of mandatory and conditional sanctions on Burma, and
delegated to Executive Branch implementation of sanctions and to monitor Burmas
progress. MA statute was challenged on basis that it was Preempted by the US Act.

HOLDING, SOUTER: MA Statute is impliedly preempted by the Federal Act. 3 Reasons;

1) MA statute an obstacle to Congressional intent to delegate discretion to President re:
policies with Burma; 2) MA statute exceeded and interfered with Congressional intent to
limit economic pressure to a selected range; and 3) MA statute conflicted with
Executives authority to speak for country.

a. Presumption for, or Against Preemption? Where Court must infer

Congressional intent from conflicting/ambiguous indications (like where
attempt to occupy a Field by a less-than comprehensive regulatory scheme),
the Court often has preferred not to find Preemption. Another factor; is the
issue of traditional National Concern?

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 2. EXPRESS PREEMPTION, by Congress. Congress sometimes includes express
statements in its enactments, to effect that particular categories of State statutes or
decisional law are preempted. Issue is NOT of Congressional Intent, but of the Scope
of the Congressional Act.

Ingersoll-Rand v. McClendon (1991). ERISA enacted a regulatory scheme for private

employment benefit plans. Contains broad and express Preemption Clause: any and all
State laws insofar as they may relate to any covered benefit plan.

HOLDING, OCONNOR: Federal Statute preempts any State action filed. Deliberately
expansive, designed to exclusively make pensions a Federal concern.

Cippollone v. Liggett Group (1992). HOLDING, STEVENS: Cigarette 1969 Legislation

preempted Cippollone from suing in State Court.

C. NEGATIVE (DORMANT) COMMERCE CLAUSE ;

Restrictions on State Power to Affect Interstate Commerce.
Note. A Negative effectof restriction on States flows from the affirmative grant of Power to
Congress. So if Congress declines to regulate an aspect of Commerce, Congress silence is an
expression of intent to leave that area unregulated and protected from State regulation.

THE TEXT.

Art I sec 8 cl 3. THE COMMERCE POWER. The Congress shall have Power to regulate
Commerce among the several States

Art I sec 10. Restrictions on State Power.

Amendment X. The powers not delegated to the United Statesby the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.

1. Historical Negative Commerce Clause.

Gibbons v. Ogden. Original source of the Negative Commerce Clause. Since Congress
power to regulate commerce was exclusive, even Congressional silence constituted a
prohibition of State Regulation.

Willson v. Black Bird Creek Marsh (1829). DE legislature authorized construction of a

dam that blocked navigable waters. The Sally, fed licenses vessel, broke down the dam,
later liable for damages. Issue: Could DE lawfully legislate in a manner that not only
affected Interstate Commerce, but actually obstructed it? HOLDING, MARSHALL:

17
 Upheld the DE law. The dam improved the welfare of the locals, and that is within the
power of the State. This is not repugnant to the Commerce Clause in its dormant State.

How reconcile BlackBird and Gibbons? IMPORTANT DETERMINANTS: 1-Dam

legislation was non-discriminatory, while Gibbons monopoly obviously favored local
interests. 2-Dam justifiable for local interests in health and welfare unrelated to
Commerce, not so in Gibbons.

Cooley v. Board of Wardens of Port of Philadelphia (1851). PA Act required vessels

arriving in port of PHI to receive a pilot. HOLDING: When it is an inherently local
thing, it is permissible for States to impose these regulations on Commerce.

2. The Modern Standard under the Negative Commerce Clause

-If State Statute discriminates against Commerce against the several States, for it to be a
valid exercise of power, it must 1) be an important State interest, and 2) there is no
other reasonable non-discriminatory alternative.

-If Statute is facially discriminatory, it is presumptively unconstitutional. The only

example of it being valid was where the state of Maine prohibited the importation
of bait from other areas, because doing so would cause irreparable harm to the
local ecosystem and the fishing and lobstering economy.

-Pike Formulation. Where State Statute regulates evenhandedly to effectuate a legitimate

local public interest, and its effects on Interstate Commerce are only incidental, it will be
upheld UNLESS the burden imposed on such commerce is clearly excessive in relation to
the putative local benefits. If a legitimate local purpose is found, then the question
becomes one of degree. And the extent of the burden that will be tolerated will depend on
the nature of the local interest involved, and on whether it could be promoted as well with
a lesser impact on Interstate activities.

-So basically, if statute is not facially discriminatory, and the effects on

Commerce are incidental to purpose, SC will uphold the State statute unless it
places an undue burden on Commerce in relation to the local benefits, and if there
is an alternative with a lesser effect on Commerce.

a. Discrimination Against Interstate Commerce.

City of Philadelphia v. New Jersey (1978). NJ statute prohibited importation of waste

from outside the State. Statute attacked under the Negative Commerce Clause.
HOLDING, STEWART: Statute invalidated under the Negative Commerce Clause. Here,
Federalism vs Commerce. Burden on State to find a more reasonable alternative to
protect local health. Unless all options are exhausted, then such a facially discriminatory
statute will be invalid.

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Fort Gratiot Garbage case (1992). Statute applied to in-staters as well as out-of-staters.
Still held invalid.

Oregon Waste Systems v. Dept of Environmental Quality of State of Oregon (1994).

State of OR levied fees on landfill operators, charged more for out-of-state waste.
HOLDING, THOMAS: Unconstitutional under Dormant Commerce Clause. Commerce
Powers negative aspect denies States the power to unjustifiably discriminate against or
burden Interstate flow of articles of Commerce. This statute is facially discriminatory,
and there are other reasonable alternatives. Balkanization; Court worried about
protectionism, isolationism, consequences would be bad if this happened.

Maine v. Taylor. The Maine lobster and bait case. Only case where a facially
discriminatory State Act was upheld as not violative of Negative Commerce Clause
because big local interest, and no other reasonable alternative.

b. Non-discriminatory Regulation: The Balancing Test. See the Pike

Formulation.

Hunt v. Washington State Apple Advertising Commission (1977). NC statute required all
apple shipments to have certain kind of packaging, neutral facially. WA Apple Growers
sued because the effect of the law was to isolate and protect in-staters interests.
Conferred all the benefits to in-staters, and out-of-staters got all the burden. HOLDING,
BURGER: Invalid under Dormant Commerce Clause.

Bibb v. Navajo Freight Lines (1959). The Illinois mudflap case. HOLDING: Not
discriminatory on its face, but the effects place an unconstitutional burden on Interstate
Commerce compared to the local benefits. All the burden is on out-of-staters to comply.
So discriminatory in effect.

Southern Pacific v. Arizona (1945). AZ statute limited the # of cars that a train could
pull, in order to preserve the safety of its residents. HOLDING, STONE:
Unconstitutional, violates the Dormant Commerce Clause. Not facially discriminatory,
but effect is, because it places all the burden on out-of-staters. The national interest for
Interstate Commerce outweighs the local safety interest.

Pike v. Bruce Church (1970). The AZ Cantoloupe case. AZ Statute requires AZ

cantoloupes to be labelled as made in AZ. Bruce Church wants them packaged in CA bc
no reasonable alternative close-by. HOLDING, STEWART: Use the Pike Rule (duh), say
that the Statute preserves a minimal State interest, compared to the burden it places on
Bruce. Violates the Negative Commerce Clause.

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c. Subsidies to In-State Residents. Subsidies given from the general State Treasury
are legal. Taxing for Revenue is legal. But where the tax revenue from all is
conjoined with the Statute to only In-Staters, then it is discriminatory and violates
the Negative Commerce Clause.

West Lynn Creamery v. Healy (1994). Conjoined tax revenues and subsidies to in-state
dairy farmers. HOLDING, STEVENS: This is a protective tariff, and therefore violates
the Dormant Commerce Clause. It places a burden on out-of-staters for an obvious
benefit to in-Staters by unfairly giving locals competitive advantage.

d. MARKET PARTICIPATORS; States Own Purchases, Sales, and Resources

in the Marketplace. The State is allowed to discriminate by managing its own
resources to benefit its own citizens.

White v. MA Council of Construction Employers (1983). Boston required city-funded

construction projects to be performed by a work force consisting of half Boston residents.
HOLDING: Ordinance is Constitutional. Does not violate Negative Commerce Clause,
because the city is a Participant.

Reeves v. Stake (1980). South Dakota built a State-owned cement plant in 1919, operated
by State Cement Cmsn. Sold to in- and out-of-state customers for 50 years. During
concrete shortage in 1978, stopped selling to out of staters. Sued by an out of State
contractor.

HOLDING, BLACKMUN: SDs sales policy is NOT invalidated by the Negative

Commerce Clause because it is a MARKET PARTICIPATOR. As such, it is not within
the scope of the Commerce Clause, which regulates commerce among the several
States. Nothing in Commerce Clause contemplates the State as a Market Participant. So,
SD policy is valid.

United Haulers Assn v. Oneida-Herkimer Solid Waste Mgt Authority. Govt-owned

trash plant. HOLDING: not violative of Dormant Commerce Clause, market participator.

-Contrast this with all the other cases (Oregon, City of Philly, Ft Gratiot) that
invalidated garbage-related statutes where owned privately.

e. Abandoning the Dormant Commerce Clause? Scalia no likey

American Trucking v. Smith (1990). Scalias dissent, Negative Commerce Clause is in a

quagmire, and takes SC beyond its judicial role.

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 D. THE TENTH AMENDMENT.

THE TEXT.

Amendment X. 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.

a. History.

-The CT Compromise: Bicameral Legislature. Compromised between big and small

States.
-State Sovereignty is Inviolable.

b. Current Law.

10TH AMENDMENT RULE: If a Federal statute applies to many different entities that includes
States (see Garcia), then it is not justiciable. But, if a Federal statute singles out the States (New
York), then the Federal Govt cannot commandeer the States activities, and violates 10th
Amendment.

National League of Cities v. Usery (1976). HOLDING, REHNQUIST: Overruled Wirtz

(which held that Fed. Wage law applies to State employees too). Say that 10th
Amendment is more than a truism. 10th Amendment guarantees that the Federal Govt
does not interfere with Traditional Governmental Functions.
-But what exactly is a traditional govtal function? where draw the line?

Garcia v. San Antonio Metropolitan Transit Authority (1985). Employees of SAMTA,

state-operated public transit system, sued to enforce certain wage and hour provisions of
the Federal Labor Standards Act. SAMTA said that under National Cities, should not be
subject to FLSA.

HOLDING, BLACKMUN: State regulatory immunity to States based on the National

Cities Traditional Govt Function is unworkable, and should be overruled. Federalism is
a Policy, not a Rule, and requires a more fluid approach. And Federalism is adequately
taken care of by the creation of the bi-cameral legislature.

-So under Garcia, to argue that a Federal Statute violates the 10th Amendment,
remedy is to go to Congress, because Federalism was not intended to be
adjudicated, but rather the proper channel is through the Congress. It is intended
to be part of political process, and therefore not justiciable.

New York v. United States (1992). Congress enacts Low-Level Radiation Waste Policy.
Contains 3 provisions, 1 of which is a Take Title provision, which says that if a State
fails to provide for disposal of nuclear waste, it takes title of that waste, and is thus liable
for any damages that it creates.

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 HOLDING, OCONNOR: Unconstitutional, violates the 10th Amendment. Congress
cannot COMMANDEER the States to perform something. States have autonomy that
cannot be infringed upon. Commandeering diminishes accountability, which harms the
People.

Printz. Brady Bill case, applied only to States, commandeering of local law enforcement,
violated 10th Amendment. No longer an agent accountable to the people who elected
them.

E. INTERSTATE PRIVILEGES AND IMMUNITIES

CLAUSE

THE TEXT.

Art IV sec 2 cl 1. The citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.

Paul v. Virginia (1868). The Framers goal for the Privileges and Immunities Clause:
No provision of the Constitution has tended so strongly to constitute the citizens of the
United States one people as this. Object of the clause was to place the citizens of each
State upon the same footing with citizens of other States, so far as the advantages
resulting from citizenship in those States are concerned.
Purpose of clause: to promote Interstate Harmony.

Supreme Court of New Hampshire v. Piper (1985). Piper a resident of VT, passed the
NH bar. But NH Supreme Court rule forbade any non-resident of NH to be admitted to
NH bar. Piper sued by Privileges and Immunities Clause.

HOLDING: Rule violates Privileges and Immunities clause, unconstitutional. Per the
clause, States must accord same treatment to residents and non-residents alike. Piper
being admitted to the NH bar is protected under the clause.

To establish a case under P & I clause, you must show the following 3 things:
1) some inequality in treatment between State-residents and non-State-residents
2) Inequality does not need to be a right; it can be a mere privilege.

If those are established, for the State to win a P & I case, it must show the following:
1) there is a substantial reason for the difference in treatment that furthers a State
interest, AND;
2) discrimination bears a substantial relationship to the States objective, and
there is no less restrictive means to accomplish that objective.

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5 WAYS P&I IS DIFFERENT FROM DORMANT COMMERCE CLAUSE:
1) A corporation does not have Standing under P & I clause.
2) Under P&I clause, the challenger MUST be an out of State resident.
3) P&I only protects interests considered fundamental Privileges
4) Congress cannot waive P&I clause (it can waive dormant comm cl)
5) There is a form of behavior that is not a regulation; that of a Market Participant.
Under P&I, there is no such behavior.

F. THE ELEVENTH AMENDMENT

THE TEXT.

Art III sec 2 cl 1. The judicial Power shall extend to all Cases arising under this Constitution,
the Laws of the US, and Treaties made, or which shall be made, under their Authority; -
between a State and Citizens of another State; - between Citizens of the same State
claiming Lands under Grants of different States, and between a State

Amendment XI. The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.

THE HISTORY, IN THIS ORDER.

-Art III sec 2 cl 1.

-Chisholm v. Georgia (1793). Diversity action by non-citizens of GA against GA. GA

claimed sovereign immunity as defense, but SC upheld damage award for plaintiffs,
citing Art III sec 2 cl 1.

-Passage of Amendment XI (1798). Terms of text prohibited the federal courts from
hearing cases where States were defendants in Diversity Jurisdiction cases.

-Hans v. Louisiana (1890). Amendment XI expanded to preclude suits against a State by

its own Citizens on basis of a Federal Question Jurisdiction.

-Alden v. Maine (1999). SC (Kennedy) held that claims against a State in State Court
was precluded, not on authority of 11th Amendment, but on broader State Sovereign
Immunity.

EXCEPTIONS TO AMENDMENT XI; HOW TO SUE A STATE.

4 ways to sue a State:

1) By waiver/consent of the State (think torts).

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 2) By the Federal Govt suing the State, by authority of Supremacy Clause.
3) Ex Parte Young (1908) Exception. By naming the pertinent State official as the
defendant. In these cases, the State official commits an illegal act ultra vires by
attempting to enforce an allegedly unconstitutional act. Indulges in a Legal
Fiction.
4) By abrogation by Congress, via Amendment 14, sec 5. Allows for Congressional
Act to set aside State Immunity.

Seminole Tribe of Florida v. Florida (1996). Indian Gaming Regulatory Act passed by
Congress, allows tribes to operate casinos after tribes enter into contract with State. IGRA
states that Tribes may sue States in Federal Ct to compel performance. FL claims violates
11th Amendment Immunity.

HOLDING, REHNQUIST: IGRA does NOT grant Seminoles right to sue States here.
The only way for the 11th Amendment to be abrogated is for Congress to enact legislation
under the authority of the 14th Amendment sec 5 (the enforcement clause). CANNOT
abrogate by the Commerce Clause (FIRST IN TIME PRINCIPLE). Here, legislation
not granted by 14th Amendment, so not a valid abrogation of the 11th Amendment.

Fitzpatrick v. Bitzer (1976). Valid abrogation of 11th Amendment, thru 14th Amendment.

G. ATTEMPTS BY STATE TO CONTROL FEDERAL

GOVERNMENT

McCullough v. Maryland. The power to tax is the power to destroy.

US Term Limits v. Thornton (1995). AR passed term limit bill for US Reps. HOLDING:
Unconstitutional, States cannot abrogate power.
-Congressional requirements in the Qualifications Clauses Art I sec 2 cl 2:
Representatives must be 25 yrs old, US citizen for 7 yrs, Inhabitant of State in
which he was elected; and Art I sec 3 cl 3: Same, but for Senators. These
Limitations are exhaustive. People have right to vote for whoever they want. Not
a reserved power by 10th Amendment to alter the qualifications.

Powell v. McCormack (1969). Qualifications Clause case, said then that qualifications in
clause were exhaustive.

Bush v. Gore (2000). Under 3 USC 5, Legislature has the last word. Under Art II sec 1
cl 2: Electors are chosen in a manner as Legislature may direct. Under FL Constitution,
Judicial Review of such manner. HOLDING: 3 USC 5 wins over FL Constitution. This
is a Federalism case, Federal Govt steps on States toes here.

24
H. STATE TAXATION OF INTERSTATE COMMERCE.

Complete Auto Transit v. Brady (1977).

4-Part Test; Tax burdens Interstate Commerce if:
1) Activity that is taxed does not have a sufficient nexus with the State;
2) Tax discriminates against Interstate Commerce;
3) Tax is unfairly apportioned; OR
4) Tax is unrelated to services provided by the State.

IX. SEPARATION OF POWERS.

A. FROM THE BEGINNING; FROM ENGLISH CIVIL WAR

TO DECLARATION OF INDEPENDENCE TO
CONSTITUTION.

-Prerogative: The quartering of Troops in private homes.

-Declaration: For quartering large bodies of troops among us
-Constitution: Amendment III. No soldier shall in time of peace be quartered in any house

-Prerogative: King has dissolved Parliament for many years at a time.

-Declaration: He has dissolved representative houses for opposing his invasion of rights
-Constitution: Art I sec 1 cl 2, Congress shall meet at least once in every year.

-Prerogative: Extra-judicial declarations of judges, without hearing of counsel or argument

in criminal matters.
-Declaration: Depriving us of trial by jury
-Constitution: Amendment VI. Right to speedy trial, By an Impartial jury.

-Prerogative: Forced Loans

-Declaration: Imposing taxes without consent
-Constitution: Art. I sec. 8 Tax and Spend Power to Congress; and Art I sec 9 cl 7 No money
shall be drawn from the treasury except by appropriations made by law.

-Prerogative: Great delays had been used against those in custody

-Declaration: Transporting us beyond seas to be tried for pretended offenses
-Constitution: Amendment V. No deprivation of life liberty or property without Due Process
of Law.

B. CONGRESS AND THE PRESIDENT

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Youngstown Sheet & Tube Co v. Sawyer [Steel Seizure Case]. Korean War. Labor unrest at
steel mills. Truman notified Congress twice that he was going to take control of the steel
mills, Congress did nothing. Action challenged, charged that seizure was not an act of
Congress, or by authority of Constitution.
-Truman responded, had inherent power to act, under his Commander-in-Chief power, and
his power under the Take Care that laws be faithfully executed provision, both Art. II.
-Court Plurality held Truman had no authority to act; Congressional silence is NOT
acquiescence.

CONCUR, BLACK: No Power to Act. TEXTUAL Argument. FORMALISTIC. The order

cannot be maintained on Presidents reliance on the executive power vested clause, the
take care laws faithfully executed clause, or the Commander in Chief clause. A seizure is
for the lawmakers, not the military. The President is not a lawmaker; all legislative power
vested in a Congress. The seizure is a law-making decision, and the President is not a law-
maker.

CONCUR, JACKSON: FUNCTIONAL. Da Tripartite Approach:

-When President acts pursuant to express or implied authorization of Congress, his
authority is at its maximum; included all power he possesses + all powers that Congress
can delegate. If his actions are not Constitutional in these instances, it probably means the
Federal Govt as an undivided whole lacks such power.

-When President acts in absence of either a Congressional grant or denial of authority, he

can only rely on his own independent powers. But Congressional inertia invites
Executive activity.

-When President acts incompatible with express or implied will of Congress, his power
is at its lowest ebb. He can only rely on his own constitutional powers, minus any
Congressional power in the matter.

-Here, no Congressional authorization; and no Congressional inertia, since this field of

activity has been legislated before. So here, President acted incompatibly with
Congressional will.

CONCUR, FRANKFURTER: PAST POLITICAL PRACTICE argument. Constitution is a

framework for govt. Deeply embedded traditional ways of conducting Govt cannot supplant
the Constitution or legislation, but they give meaning to the words of a text or supply them.
-This seizure does not comport with past political practices, after looking at some past
examples of Presidents making seizures, but were with Congressional grant.

DISSENT, VINSON: The President is not a mere messenger. Emergency and immediacy of
threatened disaster create power within Executive to take such measures.

26
 1. THE EXECUTIVE VETO POWER; THE PRESIDENTS QUASI-
LEGISLATIVE POWER. Checks and Balances.

THE TEXT. Art I sec 7 cl 2, Presentment and Veto Clause. Every Bill which
shall have passed the House and the Senate shall before it become a Law, be
presented to the President of the US; if he approve he shall sign it, but if not he
shall return it If two thirds of both Houses vote for the Bill, it shall become
Law.

-President may veto legislation, but may be overridden by 2/3 majority in both
houses.

2. POCKET VETO.

THE TEXT. Art I sec 7 cl 2. If any Bill shall not be returned by the President
within ten days (Sundays excepted) after is shall have been presented to him, the
Same shall be a Law unless the Congress by their Adjournment prevent its
Return, in which case it shall not be law.

-Only comes into play when Congress passes a Law right before it adjourns and
President doesnt sign it. An absolute veto. But in reality Congress always
appoints someone to receive Presidents veto.

3. (STATUTORY) LINE-ITEM VETO. Not Constitutional.

Clinton v. City of New York (1998). Statute gave President the power to line-item veto on
taxing or spending bills. Clinton used power, did harm to New York. Sued, said its
unconstitutional.

HOLDING, STEVENS: Not Constitutional. Past Political Practice and Intent of Founders
and Washington.

4. IMPOUNDMENT. When the President refuses to spend all the money that
has been appropriated, pursuant to a valid Congressional Act. Controversial,
and Constitutionality of measure has never been ruled on by SC. But

Train v. City of New York (1975). SC rejected Nixons claim that Federal Water Pollution
Control Act permitted the Executive to withhold funds, as a matter of statutory
construction.
-Majority of lower courts have not allowed impoundment of funds.

27
 C. LEGISLATURES EXERCISE OF QUASI-EXECUTIVE
POWERS: BICAMERALISM AND PRESENTMENT.

THE TEXT.

-Art I sec 1. All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and a House of Reps.

-Art I sec 7 cl 2; Presentment Clause. Every Bill which shall have passed the House and the
Senate, shall, before it becomes a Law, be presented to the President of the US

-Art I sec 7 cl 3. Every Order, Resolution, or Vote to which the Concurrence of the Senate and
House may be necessary shall be presented to the President of the US; and before Same shall
take effect, shall be approved by him, or being disapproved by him, shall be repassed by two
thirds of House and Senate.

1. THE LEGISLATIVE VETO

INS v. Chadha (1983). Immigration and Nationality Act . Attorney General recommended
the suspension of deportation of Chadha, per statute. It was then, pursuant to statute,
conveyed to Congress; either House of Congress, acting independently from the other House,
had the power to veto the Attorney Generals suspension of deportation. So it was done in
Chadhas case; not submitted to Senate, nor presented to the President. Chadha challenges as
unconstitutional use of power by Congress.

HOLDING, BURGER. Unconstitutional. FORMALIST APPROACH. This violates the

Separation of Powers between the Executive and the Legislature.
-Violates the Presentment Clause.
--Violates the Bicameral Requirement.

CONCUR, POWELL. Yes, unconstitutional, but prefers a narrower Formalist reading of

Congress violating Separation of Powers by assuming a Judicial function.

DISSENT, WHITE: FUNCTIONALIST APPROACH. The statute as it is set up works;

both President and Congress agree with how it works. There is no upset of the balance of
power between the 2 branches. Congress uses the Legislative veto in many instances, it has
become a part of political practice.

D. CONGRESSIONAL DELEGATION OF QUASI-

LEGISLATIVE POWER TO INDEPENDENT
REGULATORY AGENCIES OR OFFICERS.

28
1. NONDELEGATION DOCTRINE. A valid delegation must establish an intelligent
principle to which the person or body authorized to take action is directed to
conform. Otherwise, Congress would not be retaining all its legislative authority.
JW Hampton.
-Nondelegation Doctrine no longer part of the adjudication process.

2. Separation of Powers; delegating functions between the branches.

Bowsher v. Synar (1986). Gramm-Rudman-Hollings Act; purpose is to eliminate federal

budget deficit. Act sets a maximum deficit amount for Federal Spending each year. If
Spending exceeds maximum amount, the Act requires cuts across the board, exempting
certain programs. Each year, the Directors of OMB and CBO estimate amount of federal
deficit. Then, the Comptroller General reviews these reports, and reports his conclusions to
the President. President then orders a sequestration mandating the spending restrictions
specified by the Comptroller General. Sequestration order becomes effective if Congress
cannot change budget on its own Challenged under Separation of Powers.

HOLDING, BURGER: Formalist Approach. Unconstitutional, violates Separation of

Powers. Here, an agent of the Legislature is entrusted with Executive functions, which
violates Separation of Powers.
-Art II sec 2: President appoints officers of the US, with advice and consent of the Senate.
-Here, an officer answerable only to Congress has reserved executive powers.
Comptroller General only removable by Congressional initiative. This violates
Constitution.

STEVENS, CONCUR: Legislative Authority cannot be delegated to an independent, free-

standing authority who is not subject to Art I procedures.

DISSENT, WHITE: Takes the Functionalist Approach. Says that SCs role in Separation of
Powers cases should be limited only to determining whether an Act so alters balance of
authority among the Branches as to pose a threat to basicdivision between lawmaking and
execution powers. Here, not so.

Morrison v. Olson (1988). 1978 Ethics in Govt Act granted authority to a Special Division of
US Court of Appeals, DC Circuit, to appoint an independent counsel to investigate and
prosecute criminal acts by high-level Executive branch officials. Act provided that the
Attorney Generalmust apply to this division of the court for appointment of an independent
counsel whenever an investigation disclosed reasonable grounds to believe further
investigation was warranted; purpose was to make sure no conflicts of interest within
Executive branch would not compromise investigations. Independent Counsel could only be
removed by personal action of the Attorney General, and only for good cause

29
-Act challenged on Constitutional grounds, as a violation of principles of Separation of
Powers; of the Art. II Appointments Clause; and of Art. III re: authority and independence of
the Judiciary.

-HOLDING, REHNQUIST: Act is Constitutional, it does not violate Separation of Powers

principles. Functionalist Approach.

-Not a violation of the Art II sec 2 cl 2 Appointments cl, which says that President
appoints Officers of the US, but that Congress may vest appointment of Inferior
Officers in the Courts of Law, or in Heads of Dept.

-Independent Counsel = Inferior Officer, so appointable by Congress; because

was subject to removal by a higher executive branch official (the Atny Gen.), had
a restricted role, had limited Jurisdiction, and held office temporarily. Also, an
inferior officer could be appointed by the Judicial Branch.

-Appointment did NOT violate limits on Judicial power under Art III, because inferior
officers provision in the Appointments clause was a separate source of Judicial power.
Also, DC Circuits duties did not in any way undermine its authority or independence;
they were prevented from adjudicating independent counsels duties.

-Act does NOT violate Separation of Powers by interfering with Executive Branchs
functions.

-Removal power in the Act is within the hands of the Executive Branch (by Atny
Gen, for good cause), distinguishes from Bowsher.

-Whether the Constitution allows Congress to impose a good cause

restriction on Presidents power to remove an official does not turn on
whether or not that official is classified as purely executive. Analysis in
Removal cases is designed not define rigid categories of employees who
may or may not be removable by the President at will, but to ensure that
Congress does not interfere with Presidents exercise of his executive
power, and his Art II duty to Take care that laws be faithfully executed.

-Here, the good cause standard does not unduly undermine executive
authority.

-So no usurpation on Executive Function by Congress, no Judicial

usurpation of executive functions (appointment of inferior officials not
restricted to the Executive), does not violate the balance of power between
the Branches.

DISSENT, SCALIA: Statute deprives President of exclusive control over an executive

activity, the Independent Counsel performs a wholly Executive Function, that should be

30
enough to find this Act violative of Separation of Powers. The primary check on the
President is Political. It is NOT to take Executive Power away.

Mistretta v. US (1989). Sentencing Reform Act of 1984 created the US Sentencing Cmsn,
an independent cmsn in judicial branch given authority to set and determine binding
sentencing guidelines to Federal crimes. Cmsn made up of 7 members; appointed by
President with advice and consent of Senate. At least 3 members are to be Federal judges.
President can only remove for neglecting duties or malfeasance. Here, D a convicted
cokedealer, challenging constitutionality of Commission, contending that 1-Congress had
delegated excessive lawmaking authority to Cmsn, and 2-Act violated Separation of
Powers doctrine; specifically Art III Judiciary powers by (a) placing policymaking body
in the Judicial branch, (b) by requiring Art III judges to serve on it and share power with
non-judges, and (c) by subjecting them to Presidential removal for cause.

HOLDING, BLACKMUN: Act is Constitutional; does not violate Delegation doctrine,

nor does it violate principles of Separation of Powers.

-Delegation Principle: So long as Congress shall lay down by legislative act an

intelligible principle to which the person or body authorized is directed to conform, such
legislative action is not forbidden. Constitutionally sufficient if Congress clearly
delineates the general policy, the public agency which is to apply it, and the boundaries of
this delegated authority. Here, Congress meets the Intelligible Principle standard.

-Separation of Powers. D contends that Congress, in creating the Commission, effected

an unconstitutional accumulation of power within the Judicial Branch; while also
undermining its independence and integrity; and that Congress has unconstitutionally
required Art III judges to exercise Legislative Authority.

-Location of the lawmaking Commission within the Judicial Branch. Doing so in

not Unconstitutional unless Congress has vested powers in the Commission that
are more appropriately vested elsewhere, or if undermines Judicial integrity.

-Sibbach; allowed for creation of FRCP. Sentencing function is shared

among the Branches.

-Composition of Cmsn; requirement of 3 Federal judges sharing authority with

non-judges. Does not impermissibly interfere with Integrity of the Judiciary.

-Art I sec 6 cl 2, the Incompatibility Clause. No Senator or Rep shall be

appointed to any civil Office under Authority of US,which shall have been
created; and no Person holding any Office under the US, shall be a
Member of either House during his Continuance of Office.

-No mention of Incompatibility with the Judiciary Branch.

Therefore, Constitutionally permissible.

31
 -Judges have, in the past, performed Governmental functions;
Warren on JFK Cmsn, etc.
-Ultimate inquiry: does assignment undermine Judicial Integrity? Here,
NO.

DISSENT, SCALIA: Cmsn is performing a law-making function. Not for Judges. The
balancing approach is wrong; this is Separation of Powers, not Checks and Balances.

E. APPOINTMENTS POWER; AND PRESIDENTIAL

POWER OVER PERSONNEL AND PROPERTY.

1. APPOINTMENTS POWER.

THE TEXT.

Art. II sec 2 cl 2. He [President] shall have power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of
theUS, whose Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may be law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of
Dept.

2. PRESIDENTIAL POWER OVER PERSONNEL AND PROPERTY.

Myers v. US (1926). HOLDING, TAFT: Court held it was Unconstitutional that a

Congressional provision required that certain types of postmasters, appointed by the
President, could not be removed by the President without the consent of the Senate. Since
President was empowered to enforce the laws, he has the responsibility for deciding who
to appoint and which officers should be removed. Congressional limits on Presidents
right to remove officers held Unconstitutional.

Humphreys Executor v. US (1935). Congress may restrict Presidents right to remove a

federal official who holds a quasi- legislative, or quasi-judicial role. Here, involved FTC
official. Said Myers only talked about purely executive officials.

Nixon v. Administrator of General Services (1977). SC upheld Constitutionality of

Presidential Recordings and Materials Preservation Act of 1974, which directed the GSA
to take custody of Nixons papers and tapes, screen them, and return those that were

32
 personal and private. Nixon alleged violation of Separation of Powers; but SC stressed a
flexible approach to Separation of Powers was necessary.

F. LEGISLATIVE IMMUNITY.

THE TEXT.

Art I sec 6 cl 1. Senators and Repsshall in all cases, except Treason, Felony and Breach of
the Peace, be privileged from Arrest during their Attendance at the Session of their respective
Houses, and in going to and returning from the same; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.

US v. Brewster (1972). HOLDING: Speech or Debate Clause did NOT preclude

prosecution of former Senator for accepting a bribe. Clause does not protect all conduct
relating to Legislative process; only against inquiry into acts which occur in the regular
course of the legislative process.

Hutchinson v. Proxmire (1979). HOLDING: Press releases and newsletters are not
subject to legislative immunity.

G. EXECUTIVE PRIVILEGE FOR CONFIDENTIAL

INFORMATION.

US v. Nixon (1974). Pres. Nixon named as an unindicted co-conspirator to defraud US and

obstruct justice. Special Prosecutor subpoenaed his tapes. Nixon challenged, claiming
Executive Privilege.

HOLDING, BURGER: Executive Privilege does NOT apply in this case. Executive Privilege
is not a right in and of itself. To use it, must be in furtherance of a National Interest; like
National Security, or something like that. Otherwise, in a conflict between the Judiciary
Branch and a claim of Executive Privilege standing alone, Judiciary Branch will win.
Criminal Justice is more important than keeping a secret not in furtherance of any National
Interest.

1. EXECUTIVE IMMUNITY AGAINST DAMAGES LIABILITY.

Nixon v. Fitzgerald (1982). Nixon wrongfully fired Fitzgerald. HOLDING: President has
absolute Immunity against suits for damages for being sued for acts as President.

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 Harlow v. Fitzgerald (1982). Harlow is the official who carried out Nixons order to fire
Fitzgerald. HOLDING: Presidential aids have qualified immunity; incur liability if conduct
was wilful and wanton.

Clinton v. Jones (1997). Action arose out of conduct before President Clinton was elected.
HOLDING: Executive immunity did not apply in this case; Immunity does extend to conduct
that occurred before became president. So, Paula Jones suit allowed to proceed.

H. PARDON POWER.

THE TEXT.

Art II sec 2. The President shall have the power to grant Reprieves and Pardons for Offences
against the United States, except in Cases of Impeachment.

I. FOREIGN AFFAIRS.

1. TREATY POWER.

THE TEXT.

Art II sec 2. The President shall have Power, by and with the advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur.

Art VI. All Treaties made shall be the Supreme Law of the Land.

Missouri v. Holland (1920). Migratory Bird Treaty Act. Missouri claims that Act, which
came from Treaty, infringes upon its sovereignty, as reserved in the 10th Amendment.

HOLDING, OWH: Statute and Treaty are Constitutionally valid. So long as a Treaty does
not contravene any express prohibitions listed in the Constitution, it is Supreme Law of
the Land.

2. EXECUTIVE PROCLOMATIONS AND

AGREEMENTS.

US v. Curtiss-Wright Export (1936). HOLDING: Joint Resolution falls wholly within the
realm of Foreign Affairs. Before the Constitution, there was the Union. States never had the

34
 power to operate internationally. The President is the sole organ of the Nation in its external
relations, and its sole representative with foreign affairs. Notwithstanding Treaty, Senate.

3. EXECUTIVE AGREEMENTS BASED ON UNCLEAR

CONGRESSIONAL AUTHORITY

Dames & Moore v. Regan (1981). The Iranian Hostage case. Hostages were released
pursuant to a negotiated deal between the President and Iran people. Part of the deal was that
Iranian assets in the US would become unfrozen, and that all trials would then be resolved in
tribunals. Creditors objected, claimed that President is unconstitutionally infringing on their
rights of contract.

HOLDING, REHNQUIST: Constitutional. Youngstown analysis controls here. Presidents

actions here fit somewhere between explicit Congressional authorization and explicit
Congressional prohibition. IEEPA and Hostage Act delegated broad powers to President; no
evidence of contrary legislative intent.

a. LIMITS OF EXECUTIVE POWER.

Medillin v. Texas (recent, Bush2 era). International Court of Justice said US violated 51
Mexican nationals were entitled to reonsideration of State court convictions because of
States failure to inform them of their consular rights. W asked Texas to comply, they said no.
HOLDING: Texas is not bound to the Ruling because it was never implemented by the
Congress. W claimed that under Dames & Moore, he had the authority to settle foreign
claims by Executive Agreement. But here, there is no long standing acquiescence, so does
not satisfy the test.

J. WAR AND PEACE; GUANTANAMO.

THE TEXT.

Art I sec 8 cls 11-16, 18. Congress shall have power to [11] Declare War, [12] to raise and
support Armies [13] to provide and maintan a Navy, [14] to make rules for the Government
and Regulation of the land and naval Forces, [15] to provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections, repel invasions, [16] to provide for
organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be
employed in the Service of the US [18] To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers

Art II sec 2 cl 1. The President shall be Commander in Chief of the Army and Navy of the US,
and of the Militia of the several States

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RULES FROM THESE CASES:

MILITARY TRIBUNALS; they are allowed in the following 3 circumstances:

1) When Martial Law is declared
2) While in Enemy Territory, and
3) On the Battle Field.

GENEVA CONVENTION, COMMON ARTICLE 2:

1) Right to have facts determined in a Tribunal; and

2) Defendants have the right to be present

Woods v. Cloyd W Miller (1948). Congress passed Housing and Rent Act of 1947,
continued rent controls that were imposed during the war. Challenged by LL, said that
Congress did not have power under the War Power to pass statute. HOLDING,
DOUGLAS: War Power does not end with hostilities, but extends to remedy the evils
which have arisen from its rise and progress. Domestic regulations permitted under the
War Power under Congress War Power, can continue even after fighting stops.

1. Gitmo Cases

Rasul. Foreign citizen captured in foreign land. HOLDING: Habeas Relief is available.
Guantanamo is essentially the United States; longterm lease, control. Captured citizens
nations are not at war with US.

Hamdi. US citizen. HOLDING: Due Process applies here. No person shall be

deprived

Hamdan. Got a Military Tribunal. HOLDING: President lacked authority to impose

military tribunal, not approved by Congress, violated the Geneva Convention.

Boumediene (2008). Constitution protects detainees habeas corpus rights. Not held
outside the US, as govt claims; Gitmo is functionally American property, and it is not a
battlefield.

X. STATE ACTION PRIVATE ACTORS AND THE 14TH

AMENDMENT.

A. BASIC PROCEDURAL STRUCTURE OF DUE PROCESS AS PROTECTION

AGAINST STATE ACTION.

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-Due Process Clause only applies to State Action; NOT to Private Conduct. Private
individuals are free to discriminate.

-Sometimes, hard to draw the line between State and Private Conduct.When Private
Conduct is somehow intertwined with Government Action, Court must decide if
action is really attributable to the State. 4 Theories of State Action by Private
Actors:

1. THE GOVERNMENT FUNCTION DOCTRINE. A private person

engaged in a governmental function may be treated as a State actor. Broad test
for Government function; where private acts which have any parallel function
conducted by the State.

-Stricter view: functions traditionally and exclusively performed by

the State.

a. Expansion; the White Primary Cases.

THE TEXT.

Amendment XV. The right of citizens of the US to vote shall not be denied or
abridged by the US or by any State on account of race, color, or previous
condition of servitude.

Amendment XIV. No State shall make or enforce any law which shall abridge
the privileges and immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.

Smith v. Allwright (1944). Blacks were excluded by statute from the electoral
process within the Democratic Party. HOLDING: Violated the 15th Amendment.
Political Party a private entity. Still, State Action, conducted primary by power
delegated from the State.

Terry v. Adams (1953). Involved a private and voluntary Political organization

called the Jaybird Association, which excluded Blacks from the organizations
pre-primary elections. HOLDING: Jaybird Partys actions are unconstitutional,
they are doing precisely what the 15th Amendment seeks to prevent.

Marsh v. Alabama (1946). The town of Chickasaw is owned by a corporation; so

it is technically private property. However, it practically functions as a public

37
municipality; public roads, ingress and egress. Marsh distributes Jehovahs
Witness literature while on the sidewalk, told to stop, then arrested for Criminal
Trespass. D says she has a 1st Amendment right. Town says they are Private. She
says STATE ACTION!

HOLDING, BLACK: That the town is owned by a private company is no matter

here. It functions in every other way as a governmental entity. Therefore, this
constitutes State Action. Important here; factors that align Town with a
governmental actor. Too many here not to find State Action.

b. Contraction. Shopping Center cases and utility company.

Logan Valley Case (1968). SC extended the Government Function doctrine to

cover a shopping center. Here, union members were picketing a market in the
shopping center. Per Marshall, the shopping center sidewalk is like the business
block in Marsh. Shopping Center is open to the public to the same extent as the
commercial center of a normal town.

Lloyd Corp v. Tanner (1972). Court limited Logan Valley application in holding
that a shopping centers refusal to allow a Vietnam protester was NOT State
Action.

Hudgens v. NLRB (1976). Same deal, union protesting on shopping center

property. Conflict between 1st Amendment and Property rights. HOLDING:
Logan Valley is overruled, Shopping Ctr refusing protesters is NOT State Action.

Jackson v. Metropolitan Edison (1974). D, a private utility company, cut off

Jacksons power after she didnt pay her bills. P is suing Edison, claiming that her
power should not be shut off until she has notice, a hearing, and a chance to pay
the amount due. Edison said that they dont owe her that because they are a
private company. Jackson says that this is State Action because they are
performing a State Action; they are heavily regulated by the State, they provide a
necessary service, and they run their business only because of a State-conferred
monopoly.

HOLDING, REHNQUIST: Edison is not a State Actor, they are not performing a
Government function. Yes, they are a Monopoly in a heavily-regulated field. But,
there is not a nexus between the State and the action, such that action of
Edisonmay be fairly treated as an action of the State. This is a Public Function,
but there is no obligation, or delegation of State power, to do so.

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2. SYMBIOTIC RELATIONSHIP BETWEEN STATE AND PRIVATE
ACTOR. When the Government is entangled in a private activity, the Court
has found State Action. State support of private activity may show State
Action. But, a bit murkier waters beyond that.

Burton v. Wilmington Parking Authority (1961). Here, Burton, a Black guy, goes
to Eagle Coffee Shop. He is refused service because the owner is a racist. Eagle is
a lessee of Wilmington Parking Authority, a state-owned parking garage, who
depends on the rent money from Eagle in order to function. Burton says
discrimination, under the 14th Amendment. Eagle says theyre a private company.
Burton says State Action.

HOLDING, CLARK: Refusal to serve Burton bc of his race was State Action, and
violated the 14th Amendment. Construction of the garage was a State Action;
revenues go to the State. Land is publicly owned, dedicated to the public use.
Supported by Govt $.

-Relationship between Eagle and Parking garage: they conferred into each
other mutual benefits via lease agreement. Plus, in state-owned building.
Indicates a degree of State participation. State is a joint-participant. Falls
within scope of 14th Amendment.

Norwood v. Harrison (1973). SC enjoined MS from lending textbooks to

segregated private schools. The State does not violate 14th Amendment merely by
providing any state services that benefit a private school that discriminates. But
here, textbooks are a basic educational tool and are provided only in connection
with schools. They are not like general services, like water and electricity, which
the government provides to schools as well as other entities.

-This opinion doesnt really go with any of the theories; but it most likely
goes to the original intent of the drafters of the 14th Amendment.

Moose Lodge No 107 v. Irvis (1972). Moose Lodge is a private club, owns the
building. They kick out Irvis, a Black guy. Irvis sues, saying they violated his 14th
Amendment rights. Moose Lodge says no way, were private. Irvis says State
Action, owing to the fact that they operate by a liquor license given by the town.

HOLDING, REHNQUIST: No State Action here. Distinguished from Burton

because D owns the building here. The license does not encourage or foster
racism, nor does it make the State a partner in the clubs enterprise.

NCAA v. Tarkanian (1988). Tark was fired after the NCAA threatened sanctions
on UNLV if it did not fire him. Tarkanian sued claiming he was denied Due

39
 Process. NCAA said we dont owe you due process, Then Tark said STATE
ACTION! claiming State Action by the NCAA, a private entity which is an
organization of independent schools from all over the country.

HOLDING: No State Action here, NCAA is not a State Actor, they were merely
the impetus for him getting fired. Here, the State Actor was UNLV, and the NCAA
the private actor; kind of backwards. Here, NCAA is a private actor that is in fact
at odds with the State Actor. No symbiotical relationship here. Even if saw NCAA
monopoly, Edison tells us that a monopoly alone is enough for State Action.

Lebron v. Amtrak (1995). Lebron wanted to lease a billboard at Amtrak station

for the purpose of talking shit about the Coors family. Amtrak denied, saying they
didnt allow for political ads. Lebron said Amtrak was denying him his 1st
Amendment Right. Amtrak said they are a private actor so they could do whatever
they want. Lebron said STATE ACTION! due to the close relationship Amtrak
has with the Federal Govt.

HOLDING, SCALIA: Amtrak denying Lebrons right is State Action, because the
relationship between Amtrak and Govt is so symbiotic and mutually beneficial
that its actions are like those of the State. Here, Amtrak was created by statute, for
the furtherance of federal govt goals, six of 9 Amtraks directors are appointed by
the President 4 with the advice and consent of the Senate. This is State Action,
especially when the right that is being denied is the 1st Amendment.

Richardson v. McKnight (1997). A privatized prison held to be a State Actor

subject to liability.

3. STATE ENCOURAGEMENT, ENFORCEMENT, OR APPROBATION.

State encouragement/enforcement of a private activity may also amount to
State Action.

Shelley v. Kraemer (1948). This one is an outlier, not really followed much. Black
family wants to buy a house that is subject to a restrictive covenant based on race.
Neighbors sued to enforce the covenant; all involved here were private parties.

HOLDING, VINSON: This is a State Action. Restrictive covenants themselves are

not State Action. But, the action of the States to which the 14th Amendment
references, includes action of State courts and judicial officials. Here, State has made
available the full coercive power of the State to discriminate. That is against the 14th
Amendment as State Action.

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Reitman v. Mulkey (1967). CA Proposition 14: There can be no laws by this State or
any municipality therein that prohibit discrimination in buying, selling, or leasing of
property rights. Here, Black family was denied a lease because of their race. They
sued the lessor claiming they were discriminated against, he says he can discriminate
because he is a private actor, they say STATE ACTION! because he is encouraged by
the State Law.

HOLDING, WHITE: Denial of the lease was State Action. Here, Prop 14 establishes
a private right to discriminate on grounds which would be unavailable under the 14th
Amendment should State Action be involved. Yes, the State was allowed a neutral
position with respect to private discrimination. Prohibited State involvement could be
found even where the state can be charged with only encouraging.

Flagg Bros v. Brooks (1978). Plaintiff puts stuff in storage, doesnt pay the storage
fee. So, per NY law, storage co sells her shit without any notice. She sues, saying that
the bailees selling of her stuff is a deprivation of her Due Process and constitutes
State action, because the law encouraged the conduct.

HOLDING, REHNQUIST: No State Action here. State acquiescence is not enough

for State Action.
-No real discrimination here, as opposed to Reitman.

Batson v. Kentucky (1986). SC prohibited prosecutors in a criminal trial from

exercising peremptory challenges based on race.

Edmonson v. Leesville Concrete (1991). HOLDING, KENNEDY: Developed a 2-

Part Test to determine if private conduct is State Action, thus subject to the 14th
Amendment. 1) whether the deprivation resullted from the exercise of a right or
privilegehaving its source in State authority; and 2) whether the private party charged
with deprivation could fairly be described as a State Actor.

4. ENTWINEMENT THEORY. See below for application of this theory.

Brentwood Academy v. TN Secondary School Athletic Association (2001).

Brentwood Academy, high school, a member of TSSAA, which controlled all inter-
scholastic athletics in TN. TSSAA found that Brentwood violated recruiting rules,
penalized them. Brentwood sued for deprivation of procedural due process, TSSAA
responded that they are a private entity and are not subject to the 14th Amendment.
Brentwood says that their conduct constitute State Action.

HOLDING, SOUTER: TSSAAs conduct is State Action. Said that TSSAA hired a lot
of State employees. Members are mostly public schools. TSSAA used to be public

41
 until recently. Because of pervasive Entwinement between TSSAA and State school
officials, their conduct is subject to the 14th Amendment.

DISSENT, THOMAS: This Entwinement business is pretty new; we only follow

the 3 Categories, this is a new category here.

XI. THE BILL OF RIGHTS AND THE STATES DUE

PROCESS.

A. INCORPORATION DOCTRINE.

-The Bill of Rights, on its face, only limits Congress. So, how is it that now, many
of the Bill of Rights apply to the States?

-Because the 14th Amendment Due Process Clause, which is a limit on STATE
power, has incorporated the Bill of Rights.

-3 Views on Incorporation of the 14th Amendment Due Process Clause:

1) TOTAL INCORPORATION (J. BLACK). That ALL the Bill of Rights

should be incorporated by the 14th Amendment. Not followed.
2) SELECTIVE INCORPORATION. SC has adopted this view, holds
that some amendments in the Bill of Rights are NOT incorporated by the
14th Amendment
-Amendments NOT incorporated:
-5th Amendment Grand Jury Provision.
-7th Amendment right to jury trial in Civil Cases.
3) NO INCORPORATION (J. HARLAN). The correct view. Argues
that the Due Process Clause in the 5th Amendment does not incorporate
all the other amendments in the Bill of Rights. The language in the 14th
Amendment is exactly the same, it should therefore carry the same
effect; that is, NO incorporation. Basically, Due Process under this
theory means basic fairness. J. Harlan would always concur in these
cases and come to the same outcome as the majority, but by using his
rules. Not followed.

Duncan v. Louisiana (1968). HOLDING, WHITE: Due Process Cl in 14th Amendment

incorporates the right to a jury trial in criminal cases; right is fundamental to American
scheme of justice.

Johnson v. Louisiana (1969). CONCUR, POWELL: By holding that 14th Amendment

incorporates jot for jot and case for case every element of the 6th Amendment,

42
 derogation of Federalism principles that are basic to system. It deprives States the
freedon to experiment with adjudicatory process that are different from federal model.

B. PROCEDURAL DUE PROCESS.

THE TEXT.

AMENDMENT XIV. Nor shall any State deprive any person of life, liberty, or property, without
due process of law.

-Procedural Due Process: Guarantees that any deprivation of life liberty, or property must
not be arbitrary or capricious. Limits States from erroneously depriving person of a
protected interest.

Board of Regents v. Roth (1972). Un-tenured Assistant Professor alleged that universitys
decision not to re-hire him without a hearing deprived him of a property interest.

HOLDING: NO Property interest in un-tenured position. If there were a protected right,

court would have to look outside the Constitution, to State law, to ascertain whether
interest is protected. Here, Roth had a mere Expectancy. To get 14th Amendment
Protection, he needs a PROPERTY ENTITLEMENT.

Arnett v. Kennedy (1974). Works for Fed Govt. Statute says that before discharged for
making defamatory comments. Not at-will. By statute, he was entitled not to be
discharged except for cause; but same statute said that he was denied a pre-termination
hearing.

HOLDING, REHNQUIST: No Deprivation. His rights are in the statute, have to take the
bitter with the sweet. (Later overturned).

Bishop v. Wood (1976). Fired cop without a hearing alleges that he was denied
Procedural Due Process of Property interest, and his Liberty interest, because now there
is a stigma in the community. HOLDING, STEVENS: No deprivation; no property
interest, but a mere expectancy. Sufficiency of Property interest must be decided with
reference to State law. No deprivation of liberty interest, no public discourse of the
matter.

Cleveland Bd of Ed v. Loudermill (1985). Loudermill lied on application about never

being a criminal. By statute, he can only be fired for cause, and only after an
administrative hearing.

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 HOLDING, WHITE: Rejects the bitter with the sweet rule. Once it is determined that
the Due Process Clause applies, the question remains; what Process is due? THE
ANSWER TO THAT IS NOT IN THE STATE STATUTE.

-So, Deprivation of a Property ENTITLEMENT entitles you to a hearing;

Deprivation of a Property expectancy will not.

Daniels v. Williams (1986). Prisoner fell on a pillow because of accident. Says he was
deprived. HOLDING: Negligence is NOT a deprivation.

But, Davidson v. Cannon (1986): Deliberate Indifference/Recklessness DOES count as a

deprivation.

1. SO, WHAT PROCESS IS DUE?

-DUE PROCESS = SOME KIND OF A HEARING. Almost never means a trial.

Matthews v. Eldridge (1976).

3 Factors that determine whether entitled to a hearing:

1- Private Interest
2- Risk of erroneous Deprivation by denial of protection requested, and
3- government (public) interest; efficiency, order.

Bd of Curators v. Horowitz. The hearing was the letting go of the student by the
experts, ie her professors.

XII. THE ENFORCEMENT CLAUSE IN CIVIL RIGHTS

AMENDMENTS.

THE TEXT.

Amendment XIV sec 5; Amendment XV sec 2. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.

-Enforcement Clauses: Additional grants of power to Congress.

-Legislation passed by grant of Power.

-Freedom to Contract.

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-Right to Real and Personal Property
-

South Carolina v. Katzenbach (1966). Voting Rights Act of 1964. Passed by authority of
Enforcement clause in Amendment XV. So.Car. challenged constitutionality of
enforcement. HOLDING: Constitutional. The Enforcement clause is a plenary power,
think McCullough.

Katzenbach v. Morgan (1966). VRA of 1964 stated that all Puerto Ricans who finished
6th Grade could vote. NY State law stated that all voters needed to know English. NY
challenged, cited Lassiter, which held that the NY Literacy statute was constitutional.

HOLDING, BRENNAN: VRA is constitutional, NY Statute is NOT. Enforcement clause

is an enlargement on Congressional power. Congress is authorized to enforce prohibitions
with Legislation.

-NY: Enforcement should be read narrowly.

-SC: Under the VRA Legislation by authority of Enforcement Clause, Congress

may prescribe Prophylactic Measures to ensure that there is no undermining the
legislation.

City of Boerne v. Flores (1997). Religious Freedom Restoration Act, enacted under
Enforcement Clause, prohibits govt from substantially burdening a persons exercise of
their religion, unless govt can show 1-compelling govt interest, and 2-least restrictive
means of furthering govt interest. Boerne denied church a zoning permit to expand
church bc its a landmark. Church suing under RFRA.

HOLDING, REHNQUIST: RFRA is not Constitutional under 14th Amendment. Sec 5 of

14th Amendment is a remedial power. Congress does not have the power to amend the
Constitution.

-What about Morgan?? Morgan is still good law. But, its application is limited;
the Statute can still be a Prophylactic measure, but it must be Congruent and
Proportionate to the injury.

Bd of Trustees of University of Alabama v. Garrett (2001). 2 State employees sued State

under Americans with Disabilities Act, which prohibits certain employers, including
States. Here, suing Alabama. ALs defense is 11th Amendment immunity. Plaintiff
claiming that Immunity is abrogated by the 14th Amendment Enforcement clause.

45
 HOLDING: Congress abrogation of the 11th Amendment was NOT Constitutional. Yes,
Congress intended to abrogate the 11th Amendment. But, it did not act within a valid grant
of power.

-Sec 5 legislation that reaches beyond substance of sec 1 must be congruent and
proportionate to the injury prevented and the means adopted to that end.

-So 1st, identify scope of the Constitutional right at issue (use Rational Basis
standard), and then determine if Congress identified a pattern of Unconstitutional
employment.

-Here, no findings that States have been discriminating against cripples.

So the Act here is NOT proportionate and congruent.

NV Dept of Human Resources v. Hibbs (2003). Family and Medical Leave Act allows
for unpaid time to be taken for variety of reasons; created a private right of action against
employers, including States, for denial or interference of this right. Here, Hibbs was an
NV employee, had dispute with boss over FMLA leave, was fired. Suing per MFLA, NV
claiming 11th Amendment Immunity.

HOLDING: Suit against State is Constitutional. Congress abrogation of 11th Amendment

is valid. Follows the City of Boerne test. FMLA is a prophylactic remedy. FMLA purpose
was to remedy gender-based discrimination, which is prevalent in the workplace.
Therefore, FMLA remedy is proportionate and congruent to injury.

XIII. ENFORCING 13TH AND 14TH AMENDMENT AGAINST

PRIVATE CONDUCT.

Under Color of State Law; 14th Amendment.

US v. Price. MS cops lead civil rights workers to 15-member mob, where they get beaten to
death. Charged ALL with federal statute

HOLDING: Yes, extension of State Action, acting under Color of Law because cops took
the victims to them.

US v. Guest (1966). Federal Statute, which punished private citizens who conspire to injure,
oppress, threaten, or intimidate any citizen in free exercise or enjoyment of any right or
privilege secured to him by Constitution or US laws. Here, Ds kept Blacks from using public
facilities, and from keeping them from travelling freely on instrumentalities of Interstate
Commerce.

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HOLDING: Upheld as valid. Allegation includes State involvement, ok to survive dismissal.
Also, Constitutional right to travel Interstate Commerce.

ENFORCEMENT OF 13TH AMENDMENT AGAINST PRIVATE ACTION.

Jones v. Alfred H. Mayer (1968). Federal Statute: No discrimination to contract. Applied to

ALL citizens, not just State actors. Here, D discriminated agaisnt P bc he was Black.

HOLDING, STEWART: Valid under enforcement clause of the 13th Amendment.

Discrimination from Contract is a Badge of Slavery; and thus is covered by 13th
Amendment. A Relic of Slavery.

Extension of Civil Rights Act. To all ethnic groups who are discriminated against.

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