(1) State Law Passed that might interfere with a federal law (Go to preemption), or

(2) A Federal Law passed in an area of state regulation.

Congress has the Power to Legislate broadly and prospectively

(a) A law is legal if it arises from one of the exclusive powers delegated to
Congress, or
(b) It is Necessary and Proper for Congress to pass the law to implement one of its
express powers. (Article 1 § 8 Clause 18).
(c) Exclusive Powers to (Article 1 § 8):
1. Tax and Spend for the General Welfare
2. Borrow
3. Regulate Interstate and Foreign Commerce
4. Regulate Immigration and Bankruptcy
7. Establish Post Offices and Roads
8. Establish Patent and Copyright system
11. Declare War

1. Is the Congressional Legislation Legal:

2. Under Commerce Clause:
a. Commerce is distribution and sales
b. Commerce is not production (Kidd v Pearson (1888)
c. Congress May Regulate any Activity which is:
i. Channels of Interstate Commerce (Champion v. Aimes 1903)
ii. Instrumentalities of Interstate Commerce (Hammer v. Daagenhard 1918)
iii. Activities congress could have a Rational Basis to believe in the
Aggregate Substantially Affect Interstate Commerce. (Jones & Laughline
Steele – Sub. Affects, WIckard – Aggregate, Ali’s BBQ – Rat. Basis)
d. MUST be able to show ‘Commerce on its Face’ or Findings of Fact. (Lopez v.
Morrison). This is known as Heightened Scrutiny!
e. CANNOT regulate inherently non-commercial activities (EC Knight 1895).
i. 10th Amendment may bar: Any powers not expressly reserved to the Feds is
reserved to the states and the people.
3. Under Taxing and Spending Power:
a. Congress may spend for the common defense and general welfare.
b. Condition on spending money in states must disclose receipt of Federal Funds clearly
and unambiguously. (Dole)
c. Spending must be for general welfare, not for specific welfare of one person or region
i. Safe Interstate Travel is general welfare.
ii. Can’t tax on export because it will hurt specific regions.
d. Condition Has to relate to the Federal Interest
e. Can’t Violate Any Constitutional Provisions
i. 0 laws have been struck down as illegal under taxing and spending between
1927 and 2006.
4. If Not an Express Power: is it Necessary and Proper?
 Legal Federal Legislation and Acts May Preempt State Law
5. The Supremacy Clause allows the Federal Government to
Preempt State Law in cases of:
a. Federal Legislation
b. Treaties
c. Executive Decisions
d. Administrative Rules
e. Federal Common Law

Federal Preemption under Commerce Clause Power

(6) Federal Passive (5) Federal Active Preemption

Preemption

(3) State Law Preempted if: (7) State Law Preempted if:
a. Dormant Commerce a. It thwarts the will of
Clause congress. (Houston v Moore 1820 &
i. Arises under Black Bird Creek Marsh).
supremacy clause and preempts if: i. National Issue
ii. State laws purport to Inherently in Federal Domain
regulate interstate commerce (Cooley 1851)
iii. Discriminates against b. Contradicts a Federal
interstate commerce in any way Law directly on point. (Southern
iv. Burdens interstate RR 1912)
commerce i. States cannot restrict
civil rights more than the feds.
b. Implied Preemption (Charleston RR).
ii. States can restrict
i. When congressional matters of public welfare more than
intent to preempt is manifest. (Mintz v. feds (Mintz v. Baldwin)
Baldwin)
ii. When federal (8) State Law NOT preempted if:
regulatory scheme so pervasive, or a. Congress chooses to
iii. Federal interest so allow concurrent jurisdiction.
dominant,
iv. There is no room for (Black Bird Creek & Hamilton
state regulation. (English v. GE (1990) View).
1. ex. State
regulation of interstate commerce.
2. Except:
When state is a police power and
has a regulatory effect

(4) State Law NOT preempted if:

a. Legitimate use of state
police powers (NYC v. Miln
1837)
 Federal Preemption Privileges and Immunities Clause

(1) Article IV requires state reciprocity

10th Amendment Limits on Legislative and Executive Action

10th Amendment: All powers not expressly provided to the federal

government are reserved to the states.
(1) Darby: 10th Amend is a mere truism.
(2) National League of Cities: 10th Amend affirmatively limits congresses
power to regulate inherently state activities or to impair their ability to
function in the federalist system.
(3) Garcia: National League of Cities test doesn’t work. The remedy for
states who don’t like federal encroachment is the 17th amendment –
elect your federal representatives and have them change the law. It’s a
political question.
Modern Executive Power
(1) President has to power to:
a. cute and administer the laws
i. In a time of war can take whatever action necessary.
1. Suspend Habeus Corpus
a. Hamdi
i. Presidents power includes the ability to hold
enemy combatants for duration of the war.
ii. However, if enemy combatants challenge
their detention under habeus corpus, they
have a limited due process right to review by
an impartial decision maker. .
b. Hamdan
i. Held that military commissions were
unconstitutional because they were not
authorized by legislation.
ii. Congress then passed legislation.
2. Seize Property – Prize Cases
b. Respond to foreign invasions.
i.
c. Preserve the union.
(2) President has an executive privilege – unless engaging in crimes.

Modern Judicial Review

(1) In Context Interpretation is In
(2) Linguistic Formalism is out
(3) All issues to be decided must have:
a. Proper Jurisdiction.
i. See Rasool v Bush about modern geographic scope.
ii. Court has subject matter jurisdiction to review executive and
legislative action.
b. Justicability
i. Ripeness
ii. Availability of a remedy
1. Political Issues are beyond the scope of the court. The
remedy for individuals is the political process.

(1) Executive Action and Judicial Review of Broad Executive Power

a. Korematsu
c. Steel Siezure

Modern Separation of Powers

(2) Federalism = The relationship between the central federal government and the
state governments.
(3) Sovereignty = Final law making power
(4) Cooperative Federalism is in effect.
a. Federalists believe sovereign power is vested in the people and not in the
legislatures.
b. The people then delegate as they see fit between state and federal
governments.
c. In today’s constitutional environment of Cooperative Federalism, the
federal government has far reaching power, and states have no effective
sovereignty. But the Feds work with the state on local issues that really
should not be regulated by the federal government.
d. Sovereignty was dampened when the equal protections clause of the 14th
amendment was passed.
i. The 14th Amendment has been interpreted narrowly and widely
over the years.
1. First it was held it did not mean blacks were equal to
whites.
th
e. The 14 amendment caused sovereignty issues because of the
reciprocation required under the separate but equal clause of the
constitution.
i. If California passes a law legalizing marijuana or Hawaii allows
gay marriage, do the rest of the states have to honor those
arrangements in their jurisdiction insofar as commerce and other
national issues are concerned?
ii. Such state laws could be struck down on an implied preemption
basis as regulating an inherently federal matter, such as drug
enforcement, or on a dormant commerce clause basis because drug
trafficking is illegal commerce.

(5) Independent Counsel and Separation of Powers

a. Morrison v. Olsen: Investigating the branches of government
i. Maj.: Will allow novel arrangements for novel circumstances.
ii. Min.: Can’t give independent counsel unlimited resources. Will
run wild.
b. Chadda: Legislature cannot take on judicial like powers overseeing the
execution of laws by using veto power. Must re-write laws to effect
change in the executive branch.
(6)