1.

Things that no gov can do  individual rights

2. Things that fed gov can do  enumerated powers, con gives fed gov
3. Things that state gov can do  plenary powers anything not included in 1 and 2.
Controversy over a national bank (I)
• hugely contentious b/c fell into this grey area. Whether enumerated power or not.
Con does not mention it, but whether to apply narrowly or loosely was the issue.

Madison’s view
 Constitution gives a grant of particular powers only.
 When meaning is clear, the consequences whatever they may be are to be admitted.
 When not clear, consequences may be brought into consideration.
 The clauses of proponents of the bank
o Tax, pay debts, common defense and general welfare
 does not tax
o borrow money on the credit of the US
 does not borrow money
o Pass all laws necessary and proper to carry into execution those powers
does not add anything but clarify
  all refuted by Madison
 1.Explicitly added powers are ok.
“means.. means.. means to the end will encompass the whole political economy.
 2. limited powers can only go one step according to Madison.

George Washington

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 Office of presidency was created for him.
 Won over people who felt uneasy about the power of president.
 Had no sons, important to founding generations.
 Hamilton very closely related to GW. –hated him.

Attorney General’s Opinion (Edmund Randolph)

 Proponents who relied on the preamble make the body Constitution useless.
 If interpret broadly will be too loose.
 Translate proper as a restriction.

Thomas Jefferson’s Critique

 Slippery slope argument: Take a single step beyond the boundaries, no longer susceptible of
any definition.
 Necessary- only the means which are necessary not merely “convenient”

Hamilton’s Defense
 Any means fairly aimed at given ends are acceptable.
 Necessary- does not always mean extreme necessity, instead needful, requisite, incidental,
useful, or conducive to.
 Tax, borrowing money, trade regulation, etc the relationship of bank to such powers is
immediate and natural.

McCulloch v. Maryland

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  Facts: State of Maryland tried to tax the Bank of the U.S. by taxing an official because MD
believed the bank interfered with state-chartered banks. The Bank said the state couldn’t tax
them because the Bank was created by Congress in 1816 and refuses to pay. MD then sues P,
the bank’s cashier of the MD branch of Bank of U.S., winning the initial suit against him.
McCulloch appeals.
 Themes
o Idea of deference (debate has been on for a long time)
o Reliance interest (much money invested, unwise to interrupt)
o What nature the Constitution is:
 MD: only a treaty between states
 Marshall: no, people are sovereign, people have delegated the powers to
exercise sovereignty and redistribute its power back to the people.

 Decision Procedure: First, Marshall asked whether Congress had the power to create the
Bank. Second, Marshall asked whether MD had authority to tax the Bank.
o Power to Create: Marshall says that Congress had the power to create the Bank of the
U.S. Because Article I, Sec. 8 enumerates power, anything not listed in the
constitution is presumably not allowed. But even though Article I does not expressly
allow Congress to create a national bank, Marshall argues that the Necessary and
Proper Clause gives Congress power to create a Bank of the U.S. because a Bank
can help Congress carry out its enumerated powers such as its great powers. While
a Bank is not literally indispensable to regulating commerce, there is no requirement
of absolute necessity in the Necessary and Proper Clause. Because the judiciary is
expounding a constitution, the answer need not specifically lie within the
constitution itself – the constitution is not meant to be exhaustive because it would be
odd if Congress was given certain ends, but prevented the means for carrying them
out because not specifically listed. Marshall argues that the constitution was
written in general terms to help it endure better, so judges ought to fill in gaps
through the Necessary and Proper Means Test.
o State Authority to Tax: Marshall concludes that MD lacks the authority to tax the
Bank of the U.S. because it is an appropriate and plainly adapted means to
constitutionally permissible ends. Therefore, since the Bank was constitutionally
chartered, Maryland’s tax is unconstitutional. Power to tax involves the power to
destroy, and states cannot destroy federal government. Bank of US is representative
of all people, part cannot govern whole. But while Marshall implies he will respect
the other political branches’ policy, Marshall doesn’t clearly answer whether he will
respect other branches’ more narrow interpretations of constitutional law.
o Aftermath: After McCulloch, Pres. Jackson vetoes rechartering the Bank because he
disagreed with its policy and argued it was unconstitutional. But this did not
threaten the judiciary because it over-enforced the Constitution rather than under-
enforcing it.
 Necessary and Proper Means Test: The means are constitutional if: (1) the end is legitimate and
constitutionally permissible and (2) the means are appropriate and plainly adapted to the end.

1. Legitimate and Constitutionally Permissible: The end must be constitutional. For instance,
the end is constitutional in McCulloch because Congress can regulate commerce and support
armies.
2. Appropriate and Plainly Adapted: The means have to be useful and consistent with the end.
In determining what means are useful and consistent, the Court gives Congress broad
discretion and exercises judicial deference because of the counter-majoritarian difficulty.

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 While the Court will not judge the necessity of the means, the Court will prohibit a means if
the means are mere pretext to a truly unauthorized end or the means are unconstitutional.
Therefore, the court will look for in PRETEXT ANALYSIS whether Congress oversteps its
boundaries of authority by intruding on state’s rights. It does this by seeing what the real end
is. Whether Court should look at the purpose or effect of the end is controversial. But under
pretext review, the Court will set aside Congressional work only in extreme cases where the
pretext is obvious. The political safeguards of federalism through the structure of
government will help prevent Congress’ overreaching on the means, as will states
representatives in Congress (especially the senate, where initially state governments picked
senators) exert pressure to respect state interests. Therefore, the federal legislative branch
should already account for state preferences even though judicial safeguards aren’t very
strong because of judicial deference to Congress.

Significance: Marshall was a federalist and, through McCulloch, was able to shore up the
federal government’s status and power, protecting the federal government from intrusion by
the states. What Marshall accomplished was preventing intrusion by states that would single
out the federal government and prevent it from carrying on its business.
Dellinger Memo
20th century memo to President Clinton in 1994.
Under what considerations, may the president decline to execute unconstitutional statutes.
1. presidential oath.
2. making sure laws are faithfully executed
3. deference to congress, see whether statute is constitutional.
4. if President believes Court will decide as constitutional then execute, if Court will decide as
unconstitutional then decline to execute.
• all branches should have authority to judge whether constitutional or not.
5. President can be expressly vigilant on encroachment of constitutional powers of the president.

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 Background
Everyone knew G.Washington would be the first president. After serving two terms, Washington
voluntarily steps down, then everything falls apart.
Party factions, 1796 elections- incredibly closely fought. Adams(federalist) v Jefferson
(republican). Fed: Jeffersonians are demanding a French Revolution, Rep: Feds want to establish a
monarch. 1796 elections, Adams narrowly beats Jefferson, Jefferson becomes VP (2 nd most electoral
college votes).

Sedition Act 1798

never comes before the Supreme Court, it did not have jurisdiction over federal criminal law
(which was in this case) until after Civil War.
Kentucky and Virginia resolutions :written by Jefferson and Madison.
Inherent right of legislators to speak freely.
Why not call it “Treason Act”- treason is defined in constitution (only crime), narrow and limited
scopedifficult to prove and find.
Argument about constitutionality
• meaning about the 1st amendment, whether it prevents prior restraint and subsequent punishments.
• have the right to declare nullification.

Fed response: Bill of Rights is completely redundant to write an explicit protection of political
speech. Will be counter-productive, it might limit the power of people.
Election of 1800 is a major republican land slide, sedition act was one of the major campaign
controversies. Jefferson become President. First transfer of power under democracy. Federalist have
fear of what Jeffersonians are going to do. No armed resistance- remarkable since transfer between two
radically different parties. Jefferson issues president’s pardon to everyone who has been convicted under
the Sedition Act. Bill paying back all the fines with interests that were collected under the Sedition Act.
1804 House of Representatives impeach Chase –Calendar Trial->Ultimately he remains since not enough
votes.

Madison v. Marbury
Judicial Review: According to this case, it means that the judiciary has the final say in
interpreting the constitution.
Background:
 Marbury sued to compel delivery of his commission as a Justice of the Peace after President
Jefferson and Secretary of State Madison failed to deliver it to him after President Adams had
appointed him.
 Under the Circuit Court Act (a/k/a Midnight Judges Act) passed after Jefferson beat Adams
in 1800, the number of federal judges would be doubled and Adams would get to appoint
them.
 Under the District of Columbia Act, Adams gained the power to appoint judges for small,
local matters with only a five-year office. Adams filled both positions with federalists.
 Marbury was one of the federalists to be appointed under the District of Columbia Act.
Marshall was Secretary of State at the time and did not deliver the commission of Marbury
after Adams signed it.
 Jefferson told Madison, the next Secretary of State, not to deliver the commissions. Marbury
sued Madison under a writ of mandamus (an order for a public official to do a certain action)
seeking to order Madison to deliver his commission.
 Dilemma of Marshall
o If Supreme Court rules for Marbury it will not be enforced
o If Supreme Court rules for Madison it will be weakening the judiciary

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Politics: Republicans banned Circuit Court Act and 1802 term of Supreme Court. Many worried that the
S. Ct. would strike down the repeal act as unconstitutional. In fact, six days after Marbury was decided,
Marshall said the repeal was constitutional in Stewart v. Laird. Had Stewart come before the court before
Marbury, there would have been a huge political showdown because opponents of repeal act would be
asking for judicial review.
Masterstroke of Politics: Marbury is a masterstroke of politics because Marshall created judicial review in
a context where nobody cared, unlike in Stewart.
Decision Procedure: Marshall establishes judicial review by asking three questions: (1) Does Marbury
have the right to the commission, (2) If so, does Marbury have a right to a judicial remedy, and (3) If
so, is that remedy mandamus from the court?
1. Right to the Commission: Marshall says Marbury had the right to a commission because a right
flows from an appointment being made, and the commission right vests as soon as signed and
sealed.
2. Right to Judicial Remedy: Marbury has the right to a judicial remedy because the president
signing his commission created a vested legal right. The famous Marbury dictum. Marshall
says that when a specific duty is assigned by law, there ceases to be discretion and therefore
an entitlement to a remedy exists. It isn’t true that for every right, there is a remedy. For
instance, the political questions doctrine where the federal courts will refuse to address some
constitutional questions such as foreign policy, which the constitution gives large discretion to the
president for). Marshall acknowledges this political questions exception in his opinion,
recognizing that decisions that fall within political or constitutional discretion are only
politically examinable.
3. Remedy of Mandamus: Marshall’s answer is twofold.
o First, Marshall says that mandamus is the appropriate remedy.
Marshall’s concern, however, is that the executive branch will not follow
the Court’s decision if mandamus is ordered. Because of this fear, we do
not know the limits on the Supreme Court ordering the president to do
something.
o Second, Marshall holds that while mandamus was the correct remedy, it
would not be appropriate for the Supreme Court to issue it because the
Court lacks original jurisdiction because of the conflict between Section
13 of the Judiciary Act of 1789 giving jurisdiction because it lets the
Court issue writs of mandamus to public officials, but Article III, Section
2 of the constitution said this is an area over which the Court has only
appellate jurisdiction. Having established a conflict between the
Judiciary Act and the constitution, Marshall gets to answer the question
of judicial review. He concludes that Section 13 purports to enlarge the
Court’s jurisdiction and is therefore unconstitutional even though this
reading is laughably wrong because Section 13 just gives the Court
power to use mandamus in certain enumerated cases (Marshall just trying
to set up a conflict to establish judicial review). Where a statute
violated the constitution, the courts have the duty to apply the
Constitution as paramount law superseding inconsistent statutes.
Major Holding: Marshall makes two major conclusions: (1) constitutional supremacy and (2) judicial
review.
 Constitutional Supremacy: Marshall concludes that the Supremacy Clause of Article VI makes
the constitution supreme over federal laws, with federal laws subject to the constitution. This is
despite the fact that the Supremacy Clause doesn’t explicitly say what to do when a statute and
the Constitution differ.

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  Judicial Review: Marshall also concludes that it is emphatically the duty of the judicial
department to say what the law is. Therefore, the Court has the final say over whether a statute
is inconsistent with the Constitution. The source of the judiciary’s power over judicial review is
the Supremacy Clause and the oath given to support the constitution (both bad reasons Marshall
makes). The stronger reason is that inherent in the nature of wielding judicial power is the
court’s right to determine the constitution’s meaning. Therefore, the judiciary can order other
branches around through mandamus and its determination of what the Constitution says is
binding and final.
Practical Conclusion: After confirming the Court’s power of judicial review and power over the executive
branch, Marshall rules in favor of Madison. This was the result the Jeffersonians feared would happen in
Laird, but Marshall decided to say the repeal of the Circuit Court Act was constitutional (relieving
Jeffersonians).
Genius: The genius of Marshall was to confirm judicial review in a low stakes case in which the Court
didn’t order anybody to do anything and therefore there was little danger of its order being ignored. The
structure of the opinion was also genius because the court addressed the case’s merits before saying it had
no jurisdiction.

What can justify Judicial Review

 necessary to hold the Union together. (part-whole, whole-part argument)
 fundamental value preservation (judges are insulated from immediate concerns and are rather
concerned with philosophy and etc)
 to make sure democratic process functions properly (participation-oriented, representation-reinforcing
model by J Ely)

a)protects freedom of speech and the press

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 b)protects voting rights
c)protects minorities against defects of process resulting from prejudice
d)protect minorities from “tyranny of majority”.
Powell v. McCormack
Background
 Powell: civil rights leader, National Negro Congress, first black congressmen from any
other state than IL, by the time SC decides his case, he is a sitting representative in House
of Representatives.
 He did what he was accused of. However, much motive to get Powell was racism.
 Two most important constitutional provisions mentioned in case.
 Exclusion/Expulsion question.
 Article 1 Section 5 clause 1: exclusion (judging of elections and
qualifications)
 Article 1 Section 5 clause 2: expulsion (2/3 to expel)
 Powell seeks injunction ordering all the people to do what they would do if Powell was a
member of the house and a declaratory judgment that his exclusion was unconstitutional.
 District Court: dismiss the complaint for no subject matter of jurisdiction.
 Court of Appeals: affirms on justiciability grounds.
Mootness: passage of time makes something that was once a controversy no longer a controversy.
 Mootness claim by House: 90th Congress terminated, nothing can be done.
 Powell’s three things that still make his issue alive
1) whether he was unconstitutionally deprived of his seniority from 90 th
2) resolution of the 91st imposing $25,000 is a continuation of exclusion
3) Powell’s claim for back salary.
 Back salary claim remains viable, thus case not moot.

Speech or Debate Clause

 : Any speech or debate in Congress, members can’t be questioned in any other place
(including court).
 To keep court from intervening with the internal affairs of Congress.
 House: narrow view to only confine to words spoken in debate.
 Court: action dismissed with regards to five members of House, however the clause does
not protect the employees of the House, thus case goes forward.
Good reasoning? Puts employees in a difficult situation.
All they did was what House has told them to do.

Exclusion or Expulsion
 The House wants to treat it as expulsion, because had two thirds of votes necessary for expulsion.
 Court says will treat as exclusion, votes might change depending on what people are voting for
(exclusion or expulsion). What passed by two thirds was a exclusion vote. In addition, a general
idea: people cannot be expelled before taking the seat.

Justiciability
 if court can’t grant effective relief, then shouldn’t take the case.
 All declaratory reliefs can be given by Court, Powell is seeking one, thus justiciable.
 Then the political question.
o Textually Demonstrable Constitutional Commitment: if issue is Constitution clear gives final
decision-making power to either Congress, or Executive, then non justiciable.

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 o House: Art I, 5 gives House the power to determine who is qualified to be a member.
o Court: power to judge qualification is specifically mentioned in the Constitution: age,
citizenship, residency. The Congress can’t add to the qualifications.
Thus, Justiciable.
o Historic perspective: the influential case of Wilkes (pre-constitution), convention debates:
Madison’s quote of the danger of giving power of qualification. No one was excluded until
Civil War (post-ratification).
o Structural argument: Expulsion is a serious power, thus majority is dangerous thus must have
two thirds to expel. Constitution gives expulsion powers(substantive) but a procedural
limitation of two thirds. Exclusion on the other hand, only need majority but must have
substantive reasons.
o Exclusion and expulsion both have limitations: exclusion-subject matter, expulsion-
supermajority.
o General principle of representation: a fundamental principle of our democracy is that people
vote who they want to represent them.
o Be wary of additional qualifications on representatives, they would stand between the
representative and the people.

Congress’ power to enforce 14th Amendment, (How much leeway given to Congress?)
Katzenbach v. Morgan (1966) – To some extent, Congress has the power to overprotect potential
violations of the 14th Amendment. Congress has the power under Section 5 not just to remedy actual
violations of the 14th Amendment by states, but also to use prophylactic legislation if there is a serious
risk that the law was passed or applied in a hateful way. Importantly, the Court therefore allows Congress
some leeway in going beyond remedying what the Court would consider to be unconstitutional violations
of the 14th Amendment, but the Court didn’t say whether there were any limits to how far Congress could
go.
Facts:
o Lassiter v. : Literacy tests are not unconstitutional, does not violate right to vote.
o Voting Rights Act of 1965: prohibited states from imposing English-only literacy
requirements as a condition of being entitled to vote by saying anybody completing the
6th grade of primary school cannot be excluded from voting based on literacy, even if her
primary school was taught in a language besides English. NY’s language requirement at
the time effectively excluded many Puerto Ricans from voting. Congress justified the
Voting Rights Act under Section 5 of 14th Amendment as a way to protect Equal
Protection rights of Puerto Ricans.
Holding (Brennan):
o Congress justified in passing Voting Rights Act. While literacy tests are not per
se unconstitutional under the EPC, the Court says it does not have to find an
actual EPC violation for Congress to remedy in order to uphold the Voting
Rights Act. Under Section 5, Congress has the power to pass prophylactic
legislation as well as remedial of actually occurring EPC violations if Congress
finds that there is a serious risk of the state violating 14th Amendment rights.
Therefore, Section 5 can go beyond what the Court considers actually to be
unconstitutional – Congress can overprotect potential violations of the 14 th
Amendment.
o Brennan’s “ratchet theory” held that Congress could ratchet up civil rights
beyond what the Court had recognized, but that Congress could not ratchet down
judicially recognized rights. The “ratchet theory” essentially set judicially
recognized rights as a support, on which Congress could expand if it so chose.

9
 According to this “ratchet” theory, Justice Brennan’s opinion allowed for
multiple interpreters of the Fourteenth Amendment, as opposed to just the
judiciary.
Dissent by Harlan.J : Scope of Section 5 of 14th Amendment-only should use power when cases
of remedies

City of Boerne v. Flores (1997) – Congress cannot change the substantive scope of rights protected by
the 14th Amendment. While Congress can use prophylactic legislation under Section 5 to go beyond the
core of remedying past violations of the 14th Amendment, it is limited to congruence and
proportionality between the right protected and the Congressional act.

Facts: Congress passed the Religious Freedom Restoration Act (RFRA), which prohibits the
government from substantially burdening the exercise of religion unless the government can
pass strict scrutiny, justifying it under Section 5. Passed in response to Employment
Division v. Smith where the Court said there need not be any balancing of the government’s
interest against the individual’s interest, even where the ban has the effect of substantially
interfering with an individual’s exercise of his religion (here, OR prohibiting use of peyote,
even for religious reasons by Native Americans).
Holding (Kennedy): Unconstitutional - Congress has no authority under Section 5. While
Congress has the power to enforce the 14th Amendment, Congress does not have the power to
change the substantive scope of protections guaranteed by the Constitution. The Court alone
has the right to define the scope of constitutional rights under Marbury v. Madision.
Therefore, Section 5 is only a remedial power – a power to remedy violations before or after
they happen – not a power to change the substance of the constitution. There is a core of
unconstitutional actions, and Section 5 lets Congress pass prophylactic (preventative) laws
that bar more than just what’s constitutional. But there is a limit to how far Congress can go
outside the unconstitutional core: there must be CONGRUENCE AND
PROPORTIONALITY BETWEEN THE RIGHT BEING PROTECTED AND THE
CONGRESSIONAL ACT. The RFRA fails the congruence and proportionality test because it
was so out of proportion to a remedial or preventive objective that it cannot be understood as
responsive to unconstitutional behavior – it is an attempt to change the substance of
constitutional protections, which only the Court can do. In determining congruence and
proportionality, Congressional findings are helpful.

United States v. Morrison (2000) – Any Congressional legislation under Section 5 must remedy
misconduct by direct state action, not indirectly by giving rights against private individuals.
Facts: Congress passed the Violence against Women Act (VAWA) of 1994 to give women a right
to sue their attackers for civil damages in federal courts. Congress defended this provision on
Commerce Clause and Section 5 grounds.
Holding (Rehnquist): Unconstitutional under both the Commerce Clause and Section 5 of the
14th Amendment.
Rejected under Commerce Clause because of application of Lopez limiting Commerce Clause
legislation to economic activity. No economic, interstate activity in question.
Rejected under Section 5 because VAWA targets the private attacker, not a state actor as
required by Section 5.
Rejected Congress’s argument that courts states failing to take gender-based violence seriously
amounted to state action to violate women’s EPC rights through inaction, and this was remedial
provision to allow women to sue in state court rather than have to rely on prosecutor to bring a
criminal case against the attacker.

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 Main reason for rejecting this argument is that state action is a more immediate requirement
than inaction – for legislation to be justified under Section 5, any action requirement must be
against a state actor, not a private actor.
After Civil War, get Reconstruction Amendments
o Meant to reallocate power
o Take power away from States to Federal Government
o Give new found federal power is first and foremost vested in Congress
o Dred Scott torched political compromise that was holding nation together.
Original meaning was to give Congress broad enforcement power.
o Jones v. Congress’ enforcement power to eliminate “badges and incidents of slavery” with
regards to 13th amendment.
o Katzenbach cases, City of Rome, we see broad interpretations of enforcement power. In
Katzenbach cases: justices refer to McCulloch languages ,”as long as the ends are legitimate,
means are ok”.
o Rhenquist court start to pull back.
o 18 year old voting case,
o City of Boerne (RFRA), Morrison(VAWA): really starts to strike down Congress’ authority.
o City of Boerne: Court tries to protect its own turf. Court does not overrule Jones v. nor
Katzenbach cases. Relies heavily on narrow reading of word “enforce” and encroachments on
judicial and state power.

NAMUDNO v. Holder
Facts
o Section 5 of VRA
o Covered jurisdiction: any confederacy states, plus places where discriminatory patterns
existed.
o Preclearance procedure: needs federal approval for any changes in election procedure.
Really cumbersome and expensive.
o NAMUDNO: ought to be able to bail out, if not Section 5 is unconstitutional.
o Lower Courts: District not an appropriate political subdivision; constitutional.
Court (Roberts):
o Platitude, federalism costs; unequal treatment of States; getting preclearance may cause
states to perform race-conscious actions that could violate Equal Protection Clause.
o Courts reading of Definition of Section 14©(2)- doesn’t apply when the entire state is
covered. Applicable meaning: issue in Sheffield, definition does not apply to the
preclearance obligation of Section 5. NAMUDNO if not a political subdivision for
Section 5, would not have preclearance requirements at all, but lower courts held as it
does. Need congruence here.
o NAMUDNO is eligible to apply for bailout as it is in its nature a political division under
Section 14©(2), whether it wins bailout must be decided later as it goes back to district
court proves the facts that it qualifies.
o NAMUDNO does not get bailout itself but only eligibility. NAMUDNO does not get
what she wants but solving the constitutional question may give it what it wants.
o Refuses to deal with Constitutionality question : Constitutional avoidance.
Dissent (Thomas):
o Federalism has limits.
o Purpose of Section 5: to make sure fed courts are one step ahead of states.
o Only extreme political circumstances that justified such an extreme measure.

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 o Preclearance requirement is broader than 15 th amendment, extends outer limits of 15th
amendments.
o Narrowest reading of Katzenbach, only circumstances of Katzenbach allowed its decision
to follow.
o Victory for Civil Rights! Not a defeat, since such an act is no longer required.

Congressional contempt
o No constitutional basis for punishing nonmember
o McCulloch-like question: how much power can be implied from structural feature of
government?
o Historical; structural; precedential arguments
o First time, this issue comes before court is 1821 Anderson v. Dunn.
o Anderson, Kilbourn, Myers.

Anderson v. Dunn
Facts
o Anderson arrested, let off reprimanded at the House, later sues sergeant-at-arts for assault and
false imprisonment.
o Dunn’s defense: he has legal authority to arrest
o Anderson’s response: actions leading to contempt should be up to normal criminal law.
Court: by making that argument, you have given up your best argument
o No contextual commitment, must derive from implication.
o Necessity argument: structural argument, for the House to do their required job, must have such
authority. Courts have power of contempt, why not Congress?
o It’s important to preserve element of ambiguity in House’s power.
o Congress can’t come up with comprehensive list of things that interrupt their
proceedings, thus make the power more general.
o Court doesn’t put a substantive limitation but procedural limit as to not go beyond imprisonment
and anyone who is imprisoned must be released when congress expires.
o Congressional contempt is civil contempt, where one is purged as soon as one complies.
o Historical argument flowing from English Parliament and colonial legislature.
o Assume that the House of Congress will not abuse its power.
o Structural, historical, deference for constitutional placing of other branches.

Kilbourn v. Thompson
Facts
o Kilbourn refuses to testify regarding a bankrupt bank incident, gets arrested and jailed for 45
days.
o Kilbourn sues Thompson (sergeant-at-arms) for false arrest.
Court
o Congress may not punish a witness for contumacy unless his testimony is required on a matter
concerning which the House has jurisdiction, and that the House may not inquire into the private
affairs of the citizen.
o The nature of this case is clearly judicial, thus should be for the federal court.
Chafetz: this case is the most restrictive case on Congressional contempt Congress clearly has the
authority to get information in order to function properly (to make legislations and etc).
Kilbourn is inconsistent with Anderson and with later cases.
Miers and Bolten Case

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 o Executive branch officers are called before Congress for US Attorneys fired for political reasons
o Under orders of President, they refuse to testify claiming executive privilege.
o House Judiciary Committee seeks injunctive and declaratory relief that Miers and Bolten were in
contempt.
o No executive privilege
o Myers and Bolten must testify
o Court ultimately decides that the case is justiciable and that no executive privilege applies.
o In Kilbourn and Anderson, the clash is between Congress and Court where in Miers, it involves
all three branches.

Executive Power-(Non)Prosecution Power

United States v. Cox
Facts
o Suit under the Voting Rights Act
o Goff and Kendrick, two civil rights leaders, testifying as witnesses.
o Testified that they tried to register to vote, a white person named Jones was able to register. Jones
later denies the claim.
o Cox decides that Goff and Kendrick had committed perjury.
o FBI gets involved, and after investigation decides no basis for perjury. DA gets back to Cox, Cox
tells him to think more, repeats, same result.
o Grand jury tries to find perjury, Attorney of United States refuses to sign indictment. Attorney of
United States found in civil contempt.
o Cox orders Attorney General to appeal before court to answer why he too should not be held for
contempt.
Issue
o Does Cox have authority to do this?

Court
o Rule 48: If there is indictment, and government does not want to go forward, by leave of court
can avoid prosecution.
o Rule 7: If Grand Jury returns the indictment, then Attorney of United States should sign the
indictment.
Judge Jones
o Prosecution is a purely discretion issue, executive has the power to take care of indictment.
o Government doesn’t need to prosecute every issue, need for discretion.
o Federal judge cannot compel Attorney of US to sign indictment, thus no contempt.

Judge Rives, Gewin and Bell

o Attorney of US must sign indictment->ministerial function.
o But can’t force him to prosecute, by leave of the court may dismiss
court should granted it as long as attorney of US is acting in good faith.
o Openness: idea of publicity; Grand Jury perceived as the voice of the community, break on
executive power; Attorney of US must assist in preparing the indictment and then later decide its
validity to make it public.

Judge Brown

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 o Attorney of US has to help prepare the indictment, but does not have to sign it. Signature is not a
mere authentication as Attorney of US is not in the room when Grand Jury makes decision so
can’t attest to it.

Judge Wisdom
o Agrees with his colleagues that the government must win this case.
o More sophisticated distinction what the Grand Jury does.
o Grand Jury and government act as a check on each other.
o Grand Jury comes from Bill of Rights as a “shield”, to protect people from unfair prosecution.
o Grand Jury should represent local sentiment.
o Government represents national constituency.
o Importance of Grand Jury is a shield not a sword. It may prevent government from going after
someone (protection).
o Distinction between indictment and presentment.
 Grand Jury’s two roles
 Grand Jury indicts a person.
 Initiate investigations on their own and report on that which is called a presentment;
government doesn’t have to do anything with the presentment; but it does get public.
o In this case, the Grand Jury entered a presentment, that does not oblige the government to do
anything.
o It is inappropriate for a federal judge to force a prosecutor to prosecute a case against will
prosecution, a function of the executive branch.

United States v. Nixon

Facts
o 1973 Richardson asks Cox to serve as a special prosecutor in the Watergate scandal.
o Special prosecutor is someone who the justice department hires to prosecute a case when there
may be an internal conflict.
o Cox subpoenas tapes of conversation between Nixon and his people.
o Nixon orders Richardson to fire Cox, Richardson refuses and resign.
o Nixon orders another person to fire Cox, refuses, then Bork fired Cox”Saturday Massacre”.
o Leon Jaworski is hired as special prosecutor and brings indictment against White House officials
including Nixon as unindicted co-conspirator. Jaworski subpoenas tapes. Nixon again refuses to
turn over the tapes and intervenes claiming executive privileges trying to squash the subpoena.
Court
o Justiciability issue
 Argument within one branch-hierarchy of executive branch.
 How can Jaworski do something his President doesn’t want him to do?
 Executive branch gave the special prosecutor full authority to contest the assertion of
executive privilege in the course of investigations related to all offenses arising out of the
1972 Presidential Election. Special prosecutor cannot be removed except for
extraordinary improprieties and without the consensus of the Judiciary committees of the
Senate and Congress.
 Technically, Nixon has the authority to remove special prosecutor. However, the court
wants him to “sweat”.
 Because Nixon has not repealed special prosecutor, justiciability issue is alive.
o Merits of executive privilege

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 Structural concern: effective functioning of executive branch requires President be able to
confidential advise from advisors.
 Court says no national security concern here.
 Judges will perform “in camera” inspection of tapes judges will listen to tapes in secret
then decide what should be admitted into evidence.
 Court wants to use Burr case as precedent.
 Burr wanted evidence to exonerate himself->Marshall tell Jefferson to turn over
evidence.
 If Jefferson doesn’t turn over evidence->charges against Burr will be dropped.
 Jefferson can exert executive privilege but Burr will be set free.
 But in this case, Nixon cannot drop the case, this is Jaworski’s case.
 Instead of going to court, Nixon could have just pardoned all the defendantsNixon still
would have been impeached 

15
Myers v. United States (1926)
Facts
 1876 Statute requiring approval of Senate in order to remove postmaster.
 President Wilson removes Myers without getting advice/consent of the Senate.
 Myers’ heir wants his back salary.
Court
 Constitutional provisions
o Executive power should be vested in the President
o Separation of powers, three articles each dealing with three branches of government.
o Appointments clause of Article 2
 Two kinds of officers
 principle officers requiring consent of Congress;
 inferior officers which power belongs to President alone or to courts.
 Whether officer is principle or inferior depends on legislative clause
creating the position.
 Inferences drawn from Constitution
o Appeal to 1st congress and Madison; power of removal is vested in the President.
 Structurally: Separation of powers is important part of the government. In
cases where not specifically decided, general rule of separation of powers
rules. General rule requires President’s authority to remove his officers.
 President cannot fulfill his duty of overseeing that laws are faithfully
executed without such power.
 Power of removal is incident to power of appointment.
o Counterargument: Nothing in article 2 expressly grants President’s power to remove,
then Congress under article 1 section 8 has power to create this office, it also has
power to remove officers.  this argument proves too much, and Congress has
power to structure every executive office and remove any executive officer, thus
disrupting the balance of three balances (nothing will be left to the executive branch).
o Great principle of unity and responsibility in the executive department: importance of
preserving clear lines of accountability-Madison. We know exactly who to blame
when things go wrong.
o Historical development: 1867 Tenure of Office Act- struggle between Johnson and
radical republicans.
 Disaster: when Lincoln is assassinated, succeeded by Johnson, Congress has
a stronger vision of reconstruction, Johnson vetoes bill after bill. Tenure of
Office Act so that Johnson cannot fire Lincoln’s cabinet officials. Still he
later fires secretary of war, main contention for his impeachment.
 Court says Johnson was right, and Congress was wrong.
 Every President has thought such authority to remove executive
officers.
Holding
 Statute is unconstitutional, President does have power to remove executive officers without the
consent of Congress.
 You cannot stand between President and removal of executive officers
Humphrey’s Executor v. United States (1935)
Facts
 Factually similar case to Myers.
 Roosevelt fires Humphrey, member of FTC.
 Humphrey calls action for back salary.

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 Two questions
 Concern of statutory construction
o FTC Act says you can’t fire himdoes it actually say that?
o “to be appointed for seven years, any commissioner may be removed for inefficiency,
neglect of duty, or malfeasance of office”.
o Can commissioner only be removed for the above mentioned cause, or can President
remove for other reasons?
o Court gives an general answer
 if a statute sets a fixed term, and mentions specific causes for removal, then it
gives strong presumption to those causes.
 Shutleff was an exception as there was not fixed term->if president
can’t remove in that case, then mean a life appointment, of which
there exists strong presumption against.
 FTC was meant to be independent: quasi-legislative, quasi-judicial.
 Court basically concludes for statutory reasons, nature of FTC and legislative
historycannot be removed except for mentioned reasons.
 Concern whether or not the FCT Act is unconstitutional
o Constitutional, distinction between Humphrey’s case and Myers.
o Postmaster is a purely executive officer, while a commissioner is a quasi-legislative,
quasi-judiciary officer.
o Myers relies on a more formalistic, historical argument as where Humphrey’s relies
on practical concerns.
 Humphrey’s – read this case as a reaction to early 20th century changes in
governmentgrowth of bureaucracy, big government.
o Where does the constitution discuss quasi-judicial, quasi-legislative body?

The Appointment Power

 After Watergate, Congress passes many ethic laws, including independent Counsel.
o The Attorney General asks 3 judge panel(appointed by Chief Justice) to appoint
Independent Counsel.
o Independent Counsel can only be removed by Attorney General’s request in “good
faith”.
 Ted Olson was subpoenaed by Alexia Morrison Olson says Morrison independent counsel
is unconstitutional.
In Reseal
Article II, Appointment Clause
 Independent Counsel being a principal officer vs. inferior officer
o Morrison doesn’t report to any one.
o Can’t be removed by President.
o Position doesn’t have a fixed time limit
 But even granting she is an inferior officer, it is unconstitutional.
o No inter-branch appointments.
o Each branch may only appoint inferior officers in same branch as
themselvesintended reading.
o If other reading, each branch can infringe on other branches.
 Limitations on President’s power to remove the independent counsel is also unconstitutional.
o President is vested with prosecution power.
o Independent Counsel violates Myers

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 Congress regards Watergate as a failure, but in reality it was a success of the Special
Prosecutor system.
 Violates Article III – Courts appoint independent counsel, not within the limits of “case or
controversy”.

Morrison v. Olson
Rhenquist
 Holds that Independent Counsel is constitutional, as it does not increase the power of
judiciary nor legislative branch at the expense of the executive.
 Independent Counsel is an inferior officer
o Subject to removal by Attorney General
o Limited duties
o Limited tenure
o Limited jurisdiction
 Inter-branch appointment
o • Appointments are not limited but it is up to discretion of Congress.
 How to get around Myers
o Act puts removal power in executive branch.
o Myers involve power preventing Congressional meddling in Presidential power of
removal where as there is no congressional meddling here.
o No court meddling either.
Dissent by Justice Scalia
 Prosecution is a quintessential executive function
 Court wildly overstate how much power executive has to remove independent counseldoes
not actually give executive the power to remove the counsel.
 Importance of balancing acts in prosecution decisions.
 Inferior/superior officer debate
o She is subject to removal by Attorney General
 She is harder to be removed than most principal officers and is not
subordinate.
o She has limited duties.
 She has full power and independent authority to exercise prosecution and
also given a broad range of expressed powers.
o She is limited in jurisdiction.
 Unlike most principal officers, there is no fixed term. She exercises more
power than the General Attorney within her jurisdiction.
 Necessary condition for inferior officer status that the officer be subordinate to another
officer.
 Real danger of prosecutor without checks as in this case, it’s worse because she prosecutes
people. No checks as to protect from abuse of prosecuting power.
 Unaccountability with regards to Independent Counsel.

Edmond
 Judges of Coast Guard Court of Criminal Appeals.
 Inferior officer, Principal officer question.
 Officers in question are in fact inferior officers, thus Constitutional.
 Scalia uses the same reasoning as in Morrison.

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The Veto Power
INS v. Chadha
Statutory provision: Three part structure.
1. Generally applicable law to make you deportable.
2. Exception to that law: AG has the discretion to suspend the deportation if been in US for 7
years, and deportation may cause extreme hardship. Must report to the Congress for approval.
3. One House of Congress may veto AG’s suspension.
Background
 Congress does have the power to pass private bills (frequent especially in immigration).
 People with connection may solve their citizenship issue through the private bills.
Facts
 Chadha- student visa which expired, about to be deported; AG suspends his deportation; one
House vetoes his suspension; appeals for unconstitutionality of legislative veto.
 Chadha must show two things in order to win.
o Legislative veto is unconstitutional
o Legislative veto is severable.
Court
 Severability

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 o if can severe a part of law, and still have the other provisions of the law stand.
o Why does the court deal with severability first?
 if not severable, there is no relief for Chadhahe will be deported as the
whole section 244 which includes the AG’s power to suspension falls.
o Court says it is severable, have this severability clause in Immigration and
Nationality Act Section 406.
o Thus, the constitutional question.
 Constitutionality
o Legislative acts require bicameralism and presentment.
o This act is a legislative act, does not have either, thus unconstitutional.
o There are explicit numerated exceptions that do not require bicameralism and
presentment, to which this act does not belong.
Powell’s concurrence
 Court’s decision is too broad, invalidating every use of the legislative veto.
 The problem is that the Congress assumed Court’s function and that it may have exercised
unchecked power, thus unconstitutional.
 Political checks only work when Congress can’t have resolutions that target individuals->
must have bill of general applicability, instead of bill of attainder.

Justice White’s dissent

 Relies on pragmatic, practical reasons; similar to Humphrey’s.
 Legislative veto itself is a result of bicameralism and presentment as it was passed by both
Houses and been presented to the President.
 Congress itself has delegated these powers to independent and executive agencies, thus may
have power to oversee these delegated powers.
 Importance and widespread of use of legislative veto in order to put
checks on executive and independent agencies.
 Status quo view ?
o Status quo antedeportation
o Any assent from this requires overt Attorney General disagreement with deportation
and implicit Congress assent with suspension.
o Thus there is implicit bicameralism and presentment.

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  What would have Congress done, if it doesn’t have legislative veto?
1. Passed generally applicable law and AG can suspend it making the suspension final.
2. Only allow the generally applicable law and thus finalize the deportation without AG’s
authority to suspension.
 Severability is against the intention of framers.

Line Item Veto Act 1996

 Allows the President to sign budget into law, but strike out individual lines from budget.
 Court strikes down LIVA as unconstitutional: President has power to veto bills, not parts of
bills; thus unconstitutional.
 If you treat each line as President may either spend $$ on X, or spend 0 on X this is ok,
constitutional.

The Civil War – Presidential Power during war

Buchanan was Democrat President (came from Pennsylvania, a free state).
 Put blame for secession on North
 Describes Union as “Confederacy”  a throwback to Articles of Confederation
 The Union is an agreement between coequal sovereigns
 The whole shouldn’t coerce the parts (264)
 The government has no authority to prevent secession
Judah Benjamin:
 Consciously echoes Declaration of Independence
 Southern states are doing what colonies did from England
 Southern states are oppressed sovereign entities that can leave the Union
 An appeal to a pre-Constitutional norm
 The rights of the states have been sufficiently infringed upon to justify secession (266)

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 Lincoln’s First Inaugural Address:
 Response to the Dred Scott decision allowing slavery in the Territories  the Supreme Court can
make decisions in individual cases, but this doesn’t mean a Supreme Court ruling dictates national
policy that the President needs to respect
 No state can on its motion lawfully get out of the motion  secession is unconstitutional
 Nature of Union and Constitution do not allow for secession
 A right to secede is almost a logical contradiction  when the seceding party secedes, a part of that
party will secede, and a part of the part will secede, etc.  until there’s no government
 Physically speaking, cannot separate  echo of founding era notion that if you have two hostile
neighbors not separated by physical barriers will lead to war
 Lincoln’s argument is that Constitution reallocates sovereignty  sovereignty is placed in the hands
of the people, creating a permanent, indissoluble union  states can’t secede
 At the end of the address, Lincoln addresses seceding states, says government is in position it will
respond only if these states are aggressors
 Attack on Fort Sumter  Lincoln calls for special session of Congress

Merryman
Background
Suspension Clause (Article I), only emergency provision in Constitution, authorizes Congress to
suspend the writ of habeas corpus during national emergencies. Writ of habeas corpus allows a party to
inquire into legality of detention. Suspension Clause has been used four times in American history
and has always been happened pursuant to legislation authorizing president to suspend the writ.
Facts:
Maryland is key to Union  it is to the north of D.C., Virginia to the South  but Maryland is
deeply hostile to Union, it is a slave owning state  after riot against Union soldiers, Marylanders burn
bridges  Merryman convicted of burning bridges  Lincoln suspends Merryman’s right of habeas
corpus
Chief Justice Taney:
 Only Congress can suspend habeas corpus
 The Suspension Clause appears in Article I  meant to be legislative power
 But Article I is also where you find Veto power…
 Taney grants writ of habeas corpus

But government doesn’t show up to court  government continues to hold Merryman, and
ignores opinion
Lincoln’s response – Special Session July 4, 1861

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 Constitution is silent as to who can suspend the writ (which Taney acknowledges)
 Suspension of habeas corpus is emergency power + Congress is not in session
 Executive must have suspension power especially when Congress is not in session
 Executive has this power in the interstices
 Constitution of necessity – Constitution is not a suicide pact, doesn’t countenance its own destruction
 Lincoln also adds that, even though Congress is not in session, when they resume session, they will
ratify the actions Lincoln took when Congress was not in session
 Constitution creates national sovereignty, not state sovereignty

Milligan
Facts:
 Significant “Copperhead” criticism of war in Indiana  strong Southern sympathizers
 Have pretty good evidence of planned uprising against Indiana governor
 Government is worried jury impaneling will be impossible  no juror will be impartial
 Government uses military courts to try Milligan
Court (5 justices):
 Mere fact that civilian courts are open means you cannot use military commission
 Cannot do this, ever
Chase’s concurrence:
 Congress can pass law for certain trials to be held by military commissions during time of war even if
not in theater of war
 But Congress did not pass such a law  so unconstitutional
But this opinion comes down in 1866, after war was over  releasing these people is no longer
dangerous, won’t lead to collapse of Union.
The Prize Cases
Facts:
 Lincoln orders blockade of Confederate ports and seizure of ships carrying goods to them (271)

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 Foreign ship owners sue  in absence of official declaration of war, President does not have
authority to issue these orders (271)
Court:
 President has commander-in-chief power  he must determine the amount of force the situation
demands
 There is a war  President can blockade ports
 There’s a post hoc blessing of the act by Congress

Emancipation Proclamation 1862

 Why limit? Lincoln frees slaves only in select number of states?
Strategically brilliant  doesn’t alienate slave-holding states that are still in Union, like
Maryland
 Constitutionally? A proclamation freeing all the slaves?
 Legally, slaves are property  5th Amendment says government can’t take property without
compensation.
 Congress could’ve passed an emancipatory proclamation, but this would still constitute taking of
property  meaning Congress would have to compensate slaves owners
 13th Amendment does nationwide what Emancipation Proclamation did locally  obviates the need
for compensation.
 In a narrow way, 13th Amendment amends the 5th Amendment.

1864 election
US is embroiled in Civil War  nevertheless, regular election is held.

Emergency power during War (Executive Power)

Youngstown Sheet & Tube Co. v. Sawyer (1952) – The source of the modern rule on executive power,
especially Jackson’s concurrence’s three-tier framework for understanding assertions of executive power,
which says what kinds of executive actions require legislative authorization. In Youngstown, Black said
that executive power must be Congressionally authorized or fall within the scope of one of the sources of
executive power. Frankfurter’s functionalist approach expands the vesting clause to include historical
executive practices that Congress never protested, accepting that the constitution does not specify
precise boundaries of executive power and saying the best way to understand executive power is how it
has evolved over time. Therefore, Congressional acquiescence can show Congressional approval and
institutional settlement of expanded executive power.

Facts:
 During Korean War, Pres. Truman wanted to seize steel mills because of fear that
steel shortage would harm war effort.
 Truman directed Sec. of State to seize steel mills before threatened strike began.
Recently, Congress had refused to extend executive power to settle disputes by
seizing major industries in the Taft-Hartley Act.
Holding (Black): Exemplifies formalist reasoning.
 Because the seizure of steel mills is an attempt by the president to enact a law and
engage in executive lawmaking, Truman’s actions are unconstitutional because the
executive is not a legislator. Therefore, power to seize steel mills must come from
Congressional grant of power or the constitution.

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  Here, the action of executive lawmaking is not expressly or impliedly authorized by
either source, so unconstitutional action.
 The vesting clause, take care clause, and C-in-C clause do not authorize
Truman’s actions because did none authorize President to act as legislator.
 Take care clause inapplicable because it only requires president to see that
laws are executed, not make laws himself.
 C-in-C clause doesn’t apply because of the distinction between external and
internal affairs. Because seizing steel mills is an internal domestic activity
and far away from the theater of war, it does not fall within the C-in-C
power. Because no clause applies and no Congressional authorization,
Truman’s actions are unconstitutional.

Frankfurter Concurrence:
 Frankfurter looks at legislative history to decide whether an executive action is
constitutional.
 To Frankfurter, the rule is that if executive systematically pursued a practice and
Congress never protested before, the practice may be considered a gloss on
Article II powers under the vesting clause because Congress and the executive both
believe it is a legitimate exercise of power and therefore institutionally settled.
 A more functionalist approach than Black’s because what matters to Frankfurter is
how federal government has functioned over time.

Jackson’s Concurrence:
 Exemplifies functionalist approach of stressing checks and balances over categories
of an action.
 Jackson says that ultimately constraining the executive is not the task of the judiciary,
but the legislature in not letting silence over time allow Congress’s power to check
the president diminish – the only way to maintain checks and balances is by Congress
acting rather than relying on courts to step in, and that is good because Congress is
most democratically accountable branch.

Category One:
 President acts pursuant to express or implied authorization of Congress.
 Here, executive power is at its peak because executive has all the power Congress
can give him plus all the power Constitution gives him.
 Actions only unconstitutional here when federal government as a whole lacks power
because of federalism, individual rights, or delegation problems. At some point
after repeated executive claims to power and Congress’s failure to challenge the
claim to power, Congressional silence amounts to implied authorization.
 Here, president has executive and legislature’s powers combined except for a sliver
left to legislature under the non-delegation doctrine. The mood of congress matters a
lot in whether there is implied authorization.

Category Two:
 President acts within the “zone of twilight” without Congressional grant or denial of
authority, but only Congressional silence on that issue or related issues, which to
Jackson does not imply authorization, but the context of pattern of Congressional
acquiescence does matter because eventually it becomes implied authorization.
 Executive actions upheld here depending on the “imperative of the events and
contemporary imponderables.”

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  Here, president has executive’s exclusive power plus whatever Congressional silence
implies. Congress can revoke this Congressional silence, however, pushing
executive power into Category 3 and prohibiting some executive’s action.
 The more often executive power is asserted and Congress fails to challenge the
power, the more likely it is to become a Category 1 case by implied
authorization.

Category Three:
 President acts in contradiction of Congress’s express or implied prohibited
executive action. Here, presidential power is at its lowest ebb.
 Here, president just has executive’s exclusive power and none of Congress’s power.
 Nevertheless, some executive actions are still not subject to legislative regulation.
 For executive to win, Supreme Court has to conclude that executive power
cannot be touched by Congress.

Jackson Holding:
 Here, Jackson said Congress impliedly prohibited Truman’s steel seizures, making
this a Category 3 case.
 Congress impliedly prohibited seizure for national security when Congress
considered giving executive this power in debates surrounding the Taft-Hartley Act
and declined to so.
 Jackson gives great weight to Congress declining to extend the executive this power.
Jackson refuses to recognize Truman’s power under the vesting cause because then,
as a matter of structure, no need to specify presidential power; under the C-in-C
clause because steel seizure involves internal affairs of America.
Necessity Argument: Truman’s last argument is that there is a necessity or emergency power president
has to save country in national emergencies. Jackson rejects this because other than the suspension
clause, there is no express emergency provision in constitution where ordinary legal constraints
do not apply. Slippery slope argument of emergency powers having no definite beginning or end.
Vinson (dissent)
 A claim that President is operating in Zone 1
 In times of emergency, President might be the only one able to answer  Lincoln
suspending habeas corpus
 Vinson doesn’t mention the Taney decision because that decision was entirely
ignored
 Reviews use of Presidential power in the past
 Lots of Presidents in the past have exercised their powers expansively
 What is Congress’ role under this dissent?
 President Truman notified Congress of action, and said that if Congress disapproves,
they can pass law undoing it  but Congress did nothing
 There is some dispute here as to what the “status quo” is  Congress has made some
legislation supporting the war  President has therefore acted with Congressional
approval by doing what he had to do to continue the war.

Bush v. Gore
Background

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 Overvote=looks to voting machine like person voted for two persons.
 Undervote=looks to voting machine like person did not vote for any candidate.
 Florida Supreme Court orders partial recount of 9000 votes in Miami-Dade County=> gore gets 350
votes
 Palm beach does recountgets them to Florida Secretary of State after deadlineSecretary decides
not to count them.
 Bush seeks certiorari from Supreme Court Supreme Court issues stay of Florida Supreme Court
order
 The fact that Court agreed to hear the case on certiorari
 Normally issue a stay only when not issuing would result in irreparable harm.
 Case argued on Dec 11, decided Dec 12.
 Supreme Court hears this case, as Bush argues that there are questions of federal law.
 Equal Protection Clause violation.
 Violates provision of Article II that makes state legislatures in charge of determining how the
state’s electoral votes will be counted.

Per Curiam Opinion

 Equal Protection Clause violation
o Minimal safeguards against violations of using different standards.
o Using more lax standards in recount than in the original count.
 Court admits that Florida legislature has power to decide where Florida votes Gore or Bush.
 6 days after this decision, electoral votes must come down (Dec 18)
 3 U.S.C Section 5 “Safe Harbor” – states should elect electors by state law, and that electors
should be selected at least 6 days before electoral college meeting.
 If we allow full recount to go forward consistent with Equal Protection, then Florida may not
meet the time line for “safe harbor” provision.
o Part recount is against Equal Protection Clause.
o Full recount takes too much time.
However, different technological election methods may give rise to question of Equal Protection
throughout the country.
 Across states, there are different technological methods

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Should Court have stopped the counting?
 No reason to think Florida cares much about safe harbor deadline, when inaccuracies in
voting seem to cast doubt on the legitimacy of state vote.
 Plus, Supreme Court ordered stay on Dec 9Florida could have recounted but court’s stay
prevented.
Rehnquist
 Art II Section 2, Cl1
o Places more power in state legislature than it would otherwise haveany attempt to
circumvent procedure laid out by legislation warrant federal intervention.
o Florida SC did something other than judging when construed the article. Florida SC
has so thoroughly misinterpreted Article.
 Florida SC assert that they were simply following the state constitution.
o In this context, because of Art II statute trumps state constitution.
o “legislature” is to be interpreted as only legislature.
 Remedy
o No time to do this right, thus must stop it.
Stevens J. Dissent
 Taking on remedial section of majority
o Safe harbor is not meant to prevent recounts, state can take advantage of it but not
obliged to do so.
o Its preposterous to say that state legislatures can override state constitution. State
legislatures stand under state constitution.
 Equal Protection Clause
o There is no violation here-->never before called into question the substantive
standard by which a state determines that a vote has been legally cast.
o “intent of the voter” is sufficient.
o Majority view can only be explained by unstated lack of confidence on Florida
Supreme Court.
Souter J. Dissent
 Court should have neither reviewed either Bush v. Palm Beach County nor order stay on
recount.
 The Florida Supreme court has not done anything none court-like.
o Fed court can only step in when FL court is unreasonable.

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  Concedes that there is an Equal Protection violation, but must let recount until 18 Dec.
Ginsburg J. Dissent
 The decision disrespects state judges.
Breyer J. Dissent
 Congress is capable of resolving this problem.
o Art 1 and 12th Amendment state that votes are to be counted in front of the House of
Congress.
o Florida should send two competing slates of electors, then Congress can decide
which slate it chooses presided by head of Senate, VP.
The Commerce Power
Background
 Until 1973, Supreme Court very restrictive of Congressional power.
 From 1973, court starts upholding Commerce power.
NLRB v. Jones & Laughlin Steel Corp. (1937) : Establishes Court’s deference to Congress to
choose the means so long as Congress concludes the regulated activity directly affects interstate
commerce
Facts
 National Labor Relations Act
 Defendant charged for infringing rights of employees.
 D made steel only in PA, but operated steamships on the Great Lakes and sent most of its
product outside PA.
 Seemed like an intrastate activity.
 • Congress gave findings with the Act that the AGGREGATE EFFECT of steel workers
lacking collective bargaining power substantially, adversely affected interstate
commerce by driving down wages, which promoted a national depression by reducing
workers’ purchasing power.
Court
 NLRA constitutional.
 As long as there is an interstate market, Congress can regulate intrastate activity. If
significant impact on interstate commerce, then Congress has power.
 Therefore, the Court holds that Congress can regulate interstate commerce either through the
activity regulating being interstate commerce or the activity being related to interstate
commerce.

United States v. Darby

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 Facts
 The Fair Labor Standards Act of 1938 prevented the interstate shipment of goods by workers
earning less than the minimum wage or working more than the maximum workweek hours.
 D claims that this Act is unconstitutional, Questions Congress’ intent to regulate State’s
minimum wage programs.
 federal government is barred by the 10th Amendment from interfering in matters that are
strictly local, that is, within intrastate boundaries.
 The Act also required the keeping of records to verify compliance; the appellee argued that
this violated his 5th Amendment right protecting him from self-incrimination.
Court
 FLSA constitutional.
 The Court should not do pretext analysis: so long as Congress’ acts regulate interstate
commerce, the motive and purpose do not matter.
 National vs. Federal issue
 Labor relations is a national issue and also federal issue.
 States are incompetent to regulate minimum wage, thus federal issue.

Wickard v. Filburn (1942)

Facts
o The Agricultural Adjustment Act (AAA) provided express limits on growing wheat.
o Congress’ goal in the AAA was to limit supply and thereby increase wheat prices for
farmers.
o D claims that he grows so little wheat that his actions do not affect interstate commerce,
so the AAA preventing him from growing wheat for his own consumption is unconstitutional.

Court
o Argument that Congressional regulation can also affect demand along with supply side.
o Even intrastate, local, non-commercial activity if your activity has substantial effect on
interstate commerce.
o The effect is measured by aggregating the isolated instance of intrastate activity and
assuming lots of similarly situated individuals were doing that activity across the country.

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 o If aggregate effect can be substantial, then prosecutable under federal statute by the
Congressional power of interstate commerce regulation.
very expansive reading of commerce clause
o Think about internal/ external factor.
After Wickard, Congress has two options regarding the grounds for Civil Rights Acts
 14th Amendment
 Commerce Clause
Problems
 14th Amendment:
o Distinction between “private” and “state” action14th Amendment only regulates
“state” not “private” acts.
o Courts have to overrule earlier Civil Rights Cases
Court ultimately chooses to adopt the Commerce Clause basis.
Heart of Atlanta Motel v. United States (1964)
Because of the qualitative and quantitative impact of racial discrimination in letting hotels, Congress can
regulate it under the commerce clause by aggregating the acts of discrimination, even if the hotel lets
only to people from within the state. Congress’s actual purpose in passing a statute is irrelevant: once
the Court concludes that the regulation falls within commerce clause authority, it doesn’t matter why
Congress exercises that authority.
Facts
 Civil Rights Act of 1964 included hotels as places of public accommodation for which
discrimination was banned based on its negative effects on commerce.
 Heart of Atlanta was a motel that participated in the hotel industry and refused to rent to
blacks.
 It was located near two interstate highways and 75% of occupants were from out-of-state.
 The motel also advertised nationally.
 Congress included findings in the Civil Rights Act that said racial discrimination negatively
affected interstate commerce in the aggregate.
Holding: Constitutional.
 The Court holds that the burden of racial discrimination in letting hotel rooms has a
qualitative and quantitative impact on interstate commerce.
 Qualitative impact is reduced national efficiency and burden placed on blacks traveling
nationally.
 Quantitative impact is decreased interstate mobility for blacks.
 The fact that Congress’ real purpose in the Act was a desire to enact social policy and a moral
agenda is irrelevant. Therefore, further overrules Hammer.

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  Because of the aggregate effect of discrimination, Congress can regulate race discrimination
in letting of hotel space even if hotel only serves intrastate guests.
 Because aggregating yields a constitutional end, the Court need only review the means. And
the means are constitutional because the court gave weight to Congressional hearings
surrounding the act in which Congress found discrimination did in fact negatively affect
interstate commerce, even though not all these findings appeared within the Act and
emerged only in legislative hearings.

Katzenbach v. McClung (1964)

Court gives deference to congressional findings that discrimination by restaurants affected
interstate commerce and requires only that there be a rational basis for the means chosen. Also stands for
the aggregation principle expressed in Heart of Atlanta to allow Congress to regulate what seemed to be
local activities at a restaurant far from interstates and with few out-of-state customers. Because a
substantial portion of food came from out of state, Congress could regulate discrimination at the
restaurant (Ollie’s).
Facts
 Alabama restaurant
o Local clientele, local supplytenuous connection
o But this question is not a race to the bottom
 By not discriminating, exists economic interest
o This is a weak argument under Commerce Clause.
o Substantial portion of food came from wholesaler who buys much from outside
Alabama.
Holding: Constitutional.
 Main reason is because the aggregate of restaurants like Ollie’s discriminating
would significantly affect interstate commerce, and the weight given to
Congressional testimony concerning the substantial effects in the aggregate of
racial discrimination by restaurants.
 Race discrimination causes less food to be sold interstate.
 The court implies that the nature of Ollie’s business is relevant for whether
there’s a requisite connection to interstate commerce.
 But the most important reason is that the targeted activity - Ollie’s discrimination
- in the aggregate reduces interstate travel by blacks and causes Ollie’s to buy
less from wholesalers.
 While the Court does not suggest that an entity like Ollie’s engaging in interstate
commerce can be regulated about anything as an entity, it does hold that the
effects of the activity are subject to regulation.

Criticism: The legacy of the civil rights cases and Wickard effectively ceded the ground that there is a
certain line of purely local matters and left nothing of pretext analysis. Pushback is that Congress can
regulate everything under the Commerce Clause in an interconnected economy.

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Steward Machine Co. v. Davis (1937)
Facts
 Social Security Act: taxes employers, give 90% back as long as meet state-run unemployment
scheme.
 State must create its own scheme meeting Fed government requirement.
 The purpose is to give incentives for states’ unemployment compensation plans to meet
minimum federal criteria.
Court
 Constitutional because it does not amount to coercion because the states want to create good
unemployment schemes, but were afraid that acting on their own to create one would place
their firms at a competitive disadvantage.
 The employer has to pay the tax anyway, so no coercion on employer.
 Not a coercion, but an inducement.
 “Race to the bottom” concern
 States have discretion, perfectly free to reject this scheme.
 While duress is necessarily coercive, Congress is free to give inducements. However, the
condition Congress demands cannot be wholly unrelated in subject matter to activities fairly
within the scope of national power and policy (therefore, Cardozo implies a certain
germaneness concern). Unemployment is a national problem. Therefore, the germaneness
concern is satisfied.
Power to tax= Power to destroy?

Limited Commerce Power

United States v. Lopez (1995)

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Facts:
 Congress passed the federal Gun-Free School Zones Act of 1990 which made it a federal
crime for a person knowingly to possess a firearm within 1,000 feet of a school, in a school
zone.
 Struck down by a lower court.
Court
 Unconstitutional.
 Government ’s 2 main arguments
o Crime impedes interstate commerce
o Education affects interstate commerce.
 Rehnquist
o 3 categories that can be regulated so long as they are economic activities.
 channels of interstate commerce
 instrumentalities of interstate commerce
 activities that have substantive effect on interstate commerce.
 Substantial Effect Factors: Three factors bear on the third category
(1) the activity being an economic activity
(2) the presence of a jurisdictional element
(3) the attenuation of connection between regulated activity
and interstate commerce
o Conception of commerce: something of economic activity.
 But, Section 922 is a criminal statute.
 Links are too attenuated.
o If concede with government’s argument, then too much power is granted to the
Congress.
 Kennedy
o Concerned with clear line of accountability.
o Government’s argument blurs the lines.

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 o Education is a traditional concern of the states.
o “laboratories of democracy” argument
 This act impedes on state’s ability to experiment.
 Thomas
o Interested in overturning cases like Jones v.
o Commerce was used in contradiction to “manufacture” and “agriculture”- only thing
fed government can regulate is shipment of goods, not production.
o If we understand “commerce” to mean everything that affects commerce then, Article
I section 8 is redundant. We should not read the constitution so that it will make
another clause meaningless.
 Stevens’ Dissent
o 1937 switch repudiated the switch.
 Souter’s Dissent
o Reasserts this tie between education and commerce.
 Breyer’s Dissent
o Appendix: studies showing guns effect on education and economic health.
o His claim needs too many steps.
 to what extent does the decision actually do anything?
 Later overturned, Act applies to guns that has traveled interstate it is constitutional.
o Thus, Lopez is purely symbolic->Court stands up for federalism.
 Are guns at school, national or federal problem?
o Breyer’s appendix suggests that the guns in school are a national problem. But is it a
federal problem?
 Does states have incentives to allow guns into schools to attract people into
schools? No, want to drive these people out of state.

Gonzales v. Raich (2005) (Stevens): Loosens regulations on the substantial effects category by
broadly defining economic activity and addresses limitations on Congress’s regulations of
instrumentalities and channels of interstate commerce. Raises the question of why given the
interconnectedness of the economy should Congress not be able to regulate more under the Commerce
Clause. Leaves Morrison and Lopez intact, leaving it uncertain what Congress can do today under
the commerce clause.
Facts:
 Congress passed the Controlled Substances Act banning sale, purchase, trafficking, and
possession of marijuana.

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  California passed its own Act saying that possession, purchase, or growth of medicinal
marijuana is legal if the person has a doctor’s note saying the patient is in pain and need is.
 This is a preliminary suit claiming that Congress exceeded its power under the commerce
clause.
Holding: Constitutional.
 Congress’s Act is an economic activity, which Stevens broadly defines as those relating to
the production, distribution, and consumption of commodities.
 Here, there is consumption of a commodity. Stevens says this case is closest to Wickard
because of the connection between personal production of marijuana and the national market
for marijuana in the aggregate if a person produces more marijuana than needed and sells into
the market.
 Additionally, Stevens says Congress can regulate local, intrastate activity if it concludes
that failure to do so would undercut the regulation of the product’s interstate marketing.
 And here, failure to regulate personal growth of marijuana undermines attempts to end
national market in marijuana, so Congress can regulate its local, intrastate growth and usage.
 Lastly, Stevens implies that the more comprehensive Congress’s regulatory regime, the
more congress can do. So if Congress passes a national regulation banning the sale of guns,
Congress can pass gun-free school laws.

Concurring Opinion (Scalia): Shockingly, Scalia concurred.

 Scalia said that the Necessary and Proper Clause makes it okay to regulate intrastate activities
that don’t affect interstate commerce subject only to a McCulloch limitation that the means
must be necessary and proper. A substantial effect isn’t needed – just a means that is plainly
adapted to the end.

Dissent (O’Connor):
 Concerned that Raich leads to a slippery slope allowing Congress to regulate anything under
the guise of comprehensive regulation because more government means greater ability to
regulate.

Because of this case, Lopez is interpreted to be more symbolic.

Congressional Regulation of State Governments

When can the federal government actually regulate the activities of the state themselves?
Maryland v. Wirtz
 Fine for Congress to extend Fair Labor Standards Act for state employees.

National League of Cities v. Usery (1976) : later overruled by Garcia

Issue

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 Does the federal Fair Labor Standards Act (FLSA) apply to state and local governments
acting as employers in specified areas under FLSA such as state hospitals?
 Does Congress have power to regulate states as employers?
Holding: Unconstitutional.
 Under the Commerce Clause, Congress cannot regulate states in areas of traditional state
governmental functions.
 Strikes down Fair Labor Standards Act as applied to state employees. Overrules Wirtz.
 Argument that Congress’ Commerce Clause is limited.
 Congress cannot regulate those activities that are essential to State’s existence.
o Regulating employees is fundamental to the functioning of states.
 Turns on essential functions.
o Problematic since fundamentals of federalism gives states certain discretion to make
their own decisions.
 “laboratories of experimentation”
 10 Amendment is affirmative limitation on Congressional powers.
th

 Dissent
o 10th Amendment clarifies everything not granted to fed government is left for the
states, not to withdraw power from the fed government.
o What are “essential” functions?
Garcia v. San Antonio Metropolitan Transit Authority
 Overrules National league of Cities.
 Reaffirms that Congress may regulate state actors.
 National League of Cities
o Unworkable in practice: hard to agree on essential, traditional state function.
o Unsound in principle: even if results are consistent, it would just be judicial
preference for traditional state practices over non-traditional practices, and states
should be equally free to engage in activities that citizens of today choose for the
common good – thus, it’s unsound to assume that federalism contains an inherent
preference for traditional practices.
 Protection of states should be focused on political/procedural safeguards and not from
judiciary.
o States are represented in national political process.
o Election, senatorial representations.

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  Dissent
o No consistency with precedents.
o Powell
 Mere fact that the Court flip-flopped on this issue is a good argument against
the majority.
o Rehnquist
 Actively looks forward to the day which he will flip-flop back to his ruling in
National League of Cities.
o O’Connor
 Essence of federalism. Separation of power, must respect states’ sovereignty.

Gregory v. Ashcroft
Creates Gregory Plain Statement Rule for upsetting in non-trivial way the balance between federal and
state power state power. Back to “essential state” functions. (National League of Cities)
Facts
 Provision of fed law prohibiting age discrimination ; provision of State law (MI) stating
judges must retire at certain age.
Issue
 Whether the Age Discrimination in Employment Act (ADEA) overturns Missouri’s
mandatory retirement rule for judges at age 70.
Court
o No, does not overturn.
o Because federal constitution creates a regime that takes state sovereignty seriously,
hence creates Plain Statement Rule.
o Not a constitution decisiondoes not say ADEA violates Constitution.
o Constitutional concerns lead us to adopt a certain rule of statutory interpretation. We
need to have a super clear statement of intent from Congress before we apply the
statute encroaching upon state action.
o ADEA does not apply to public officers, which includes state judges.
 Fairly implausible to call judges to be called “policy –makers”.
 Need a plain statement that judges are included in ADEA. If not, would read
the ADEA as excluding judges.

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  White’s Dissent
o Majority is doing what is opposite of Garcia.
 No – statute doesn’t apply here because it has a carve out for appointees that work at a policy
making level, which includes state judges.
Concurrence+Dissent(White)
 Disagrees with Plain Statement Rule.
o Relies on precedents that states must find protection from congressional regulation
rather than judiciary; Judiciary’s determination of tradition is unsound in principle
and unworkable.
 Plain Statement Rule is unnecessary in ruling of this case.
 Majority is doing what is opposite of Garcia.
Dissent (Blackmun)
 Courts should not try to identify traditional areas of state authority, so majority does what it
said it shouldn’t do in Garcia.

New York v. United States

Congress cannot force a state’s legislature to enact a certain statute or regulate in a certain manner
because of the concern of Congress lacking political accountability.
Facts
 Only three sites in country accepting radioactive wastes.
 Congress wants to create scheme in which each state is responsible for own radioactive
waste.
 Low-level Radioactive Waste Policy Act (1980).
 Three incentives
o Monetary
o Access
o Take title provision
 If states have to create facilities by some deadline, states will take title to the
waste.
 NIMBY problem (Not in my back yard)
 As deadlines approach, NY, and the counties designated for sites file suit for
unconstitutionality of Act.

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Court
 Broad statement of Tenth Amendment.
o Underscore federalism.
 This case not like Gregory case and etc.
 Broad principle: Congress may not commandeer the states.
o “Anti-Commandeering Principle” – Congress can’t dictate the states what to do.
 Congress may bribe the states, encourage them to adopt certain actions.
 Clear lines of accountability
o If Congress can commandeer, then what will look like exercise of state power (thus
take the blame), but it was the Congress who ordered the state to do it.
o Where Congress tries to bribe, the state has the ultimate choice to adopt or not, thus
clear lines of accountability.
 Take title provision is unconstitutional
o Congress can’t 1) commandeer states to create waste sites, 2) or force states to take
title to the wastes.
 NY state officials closely involved in crafting this program?
o It’s not enough because federalism is meant to protect the rights of individuals, and
no matter the consent, an unconstitutional plan cannot be ratified.
 Republican Guarantee Clause
o Held to be nonjusticiable since mid 19th century.
 Severability issue
o Take title provision is severable, the two other provisions point to the same direction.
o Thus strikes down just the Take title provision.
White (primarily dissent)
 “Unjust Enrichment” type of argument
o NY accepted the fed-state agreement, now after reaping benefits by using the sites for
seven years, wants to allege it unconstitutional.
o Took full advantage of the bargain which other states have given up, then NY sue
their part of bargain cannot be met.
 Attempt to return to Garcia standard

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 o Federalism is a matter of political process, process is fine in this case.
 Congress may directly regulate the producers of the waste, thus may amend the statute to
make NY dispose waste, take title, and prohibit NY from shipping waste out of its state.
Stevens
 Nothing wrong with commandeering.

Printz v. United States

Congress cannot force a state or local government’s executive officials to implement federal law
by commandeering them, even if the compulsion is temporary.
Facts
 Brady Act required Chief Law Enforcement Officer (CLEO) of every state to perform background
checks on potential gun purchasers.
 This Act contemplated federal officials eventually running background checks, and the
commandeering of state sheriffs because they are already positioned to do these checks because all
states regulate the purchase of guns.
Court
 Unconstitutional,
 Congress can tell state judges to tell what to do.
o Constitution specifies this: Supremacy clause.
o State judges are used to applying laws from other jurisdictions.
 This does not mean Congress can commandeer executive officers.
o No reason to think that Congress did have this power.
o President is the sole authority vested with execution of law, and if Congress may
commandeer executive officers, then this takes away President’s power.
Thomas
 Entire act is unconstitutional, Commerce Clause doesn’t allow this law to pass (no interstate
commerce involved).
Stevens dissent
 Historically, state judges performed many functions that exec officers perform right now 
thus no inconsistency.
 The accountability argument is not as strong as majority thinks it is.
 Would it better for state officials to carry out actions rather than fed officials?

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 Souter dissent
 Executives are used to being told what to do.
 Legislatures don’t take orders.
 It’s not problematic to tell state executives what to do.

 Fed government cannot commandeer neither state executives nor legislatives. Rather must
“bribe” them.

U.S. Term Limits Inc. v. Thornton (1995)

In Powell, saw clear statement that Congress couldn’t add qualification to membership in
Congressdoes this same issue apply to States?
Facts
 Amendment 73 of Arkansas Constitution, ratified by State-wide referendum.
o 2 terms in Senate, 3 terms in House  name can’t appear on ballot.
Court (Stevens)
 Egalitarianism=everyone should have equal right to run for office.
 Popular sovereignty=people should be able to vote for whom they want.
 Ratification history argument
o Silence in drafting by Founders-> no authority to States.
o If Constitution allowed term limits, then surely the Constitution would have said so.
 Patchwork of state qualification would undermine national popular sovereignty.
Kennedy (concurrence)
 Federalism assures States from unduly interfering with federal working.
Thomas (dissent)
 States can do whatever Constitution is silent about.
 Ironic that majority discusses popular sovereignty-> 60% of Arkansas voted for this
Amendment.
 Thomas’ view on popular sovereignty
o Who cares if we have uniform qualification over the country?
 Why shouldn’t we let each state impose whatever qualification they want to?
o Why should we have federal qualifications?
 Whole country has interest in making sure that no unqualified candidate
becomes a representative.
 Thus, states may add their own qualifications, they will be voting for the
candidate anyway.
 Thomas’ view on Egalitarianism
o There’s no such thing as egalitarianism in elections.
o Huge advantages for incumbents (90% reelection rate)
o Thus Amend 73 may make an election more equal.

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