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Constitutional Law Students Outline

Based upon class notes - Loyola University (New Orleans) School of Law

Text - American Constitutional Law- Structure and Reconstruction,

N.B.: According to Prof.:
Constitutional Law is not a common part of routine law practice. However, lawyers
are the "oracles" of legal knowledge for their friends, communities, etc., and so we
must learn ConLaw to be able to guide and teach the public during crises which
arise (e.g. Clinton's impeachment, Watergate, etc.). Basically, we must be able to
determine (and explain to the public) whether the government is following the rules
set down by the Constitution. There is no "rule of law" in constitutional-less
countries. [Prof. claims, mirabili dictu, that this is more serious than everything,
even more important than Louisiana torts!!!]

I. Background:
A. Supreme Court supremacy over the other branches:
1. How did the Supreme Court get so supreme?
a. powers of the courts are delineated in U.S. Const., Art. III (i.e. Congress is
Art. I, most important, followed by the Executive, Art. II), so the judiciary
is in third place - how did it get so powerful?
(1) U.S. Const. Art III, §8:18, e.g., delineates that Congress makes "all Laws,"
so how does S. Ct. jurisprudence (which is "law" in this country) become
so preeminent?
2. Cooper v. Aaron, 358 U.S. 1 (1958) - desegregation case in Arkansas
a. governor and legislature of Ark. opposed federal court ordered desegregation
b. S. Ct. ruled that state legislatures and governors cannot defy the orders of the
federal courts, and that the state cannot ignore U.S. Const. rights and protections
c. S. Ct. ruled that segregated schools violated U.S Const. Amend. XIV
d. S. Ct. cited Marbury as authority that the Constitution was the "supreme Law of
the Land" and "the fundamental and paramount law of the nation" - the federal
judiciary is supreme in the exposition of the law of the Constitution
e. since 1958, the federal courts rule American everyday life, e.g.
(1) regulate the number of urinals in prisons
(2) determine which children go to which schools
(3) determine that you have to have ramps into buildings for cripples
3. judicial review:
a. appellate review - review lower courts' findings of law
b. national review - superintending state courts' actions under the Supremacy Claus
c. interdepartmental review - review actions of other 2 branches of government
(1) the (unelected) judiciary can tell the (elected) executive and congress what
to do - almost a monarchy or oligarchy (like we ran away from in England)
(2) counter-majoritarian difficulty - Marbury sets up the S. Ct. as king of all
and melds the Constitution ("by the People") together with the S. Ct.
(not "by" the People - selected by one guy) into authority
(3) Constitution should always overrule judicial interpretation, but who interprets
what the Constitution means? the judiciary
B. Invalidation of FEDERAL laws: Text, p. 11
1. Marbury v. Madison, 5 U.S. 137 (1803) Text, p. 12
Ps were appointed justices of the peace in the D.C. by (past) President Adams,
and duly confirmed by the Senate. However, (new) SecState Madison refused to send
Ps' commissions to them. They sued in the form of a writ of mandamus, and the issues
ultimately argued before the S. Ct. were:
• Whether the S. Ct. can award the writ of mandamus in any case.
• Whether it will lie to a SecState, in any case whatever.
• Whether in the present case S. Ct. may award a mandamus to SecState Madison.
Before the S. Ct.: The S. Ct. (C. J. Marshall) put the issues in this form: (1) Does P
have a right to the commission he demands? (2) If he has a right, and the right is
violated, is there a remedy under U.S. law? (3) If there is a lawful remedy, is it a
mandamus from the S. Ct. (i.e. jurisdiction)?
Item 1: Since P's office was not an at-will appointment, as of the time the president
signed the appointment, it was official and became a legal right of P. Therefore, it
is violative of a legal right to withhold the commission.
Item 2: The court accepted P's argument, that a secretary, in his capacity as an agent
to the president, was not accountable (since the president had independent discretion),
but a secretary performing his own ministerial duties (as delineated and mandated by
the Congress) was answerable - could be mandated to perform his ministerial duties.
Item 3: As to a mandamus, it was considered settled law from British times that a
public officer could be mandated to perform his duty, as long as no other remedy was
available to the individual to address his damage. The S. Ct. jurisdiction question was
answered by the Court after noting that the constitution itself gave the S. Ct. original
jurisdiction over public "ministers" and the "state [as] a party." However, the Judiciary
Act of 1789 expanded the judiciary's power over that delineated by the Constitution,
hence it was unconstitutional. The S. Ct. had appellate jurisdiction, according to the
structure of the lower courts, etc., and not the broader original jurisdiction delineated
in the Judiciary Act.
Holding: "The rule must be discharged."
[I take that to mean, "Nope, that law ain't constitutional!"]
a. background:
(1) magistrates were appointed by outgoing President Adams (Federalist), and
Anti-Federalists (Republicans) came in (Jefferson-Burr) and tried to get around
the leftover appointments by the opposition
(2) counsel for Marbury et. al. was Mr. Lee, who had been Adams's AG
(3) C.J. Marshall was a staunch Federalist, and they were all scared of Jefferson's
Republicans in power - Marshall's dilemma:
(a) if they issued the writ of mandamus, Jefferson would ignore it and they
would appear weak
(b) if they refused the writ of mandamus, Jefferson's people would "win"
b. if P was an at-will appointee, then the president could cancel his appointment at
anytime after signing it, meaning P would have no right in it - but since it was a
specified term of 5 years (per statute), the signature gave P the power to either
accept or decline the appointment - a legal right which could not be taken away
c. the discussion of Item 3 was the most important part of this case:
(1) in deciding whether the S. Ct. had original jurisdiction, the Court debated the
wording of the Constitution (S. Ct. had power to grant writ of mandamus
against public officials) versus the D's argument that the legislature, in
constructing the lower court system, effectively delegated the S. Ct. to an
appellate level, leaving original jurisdiction to the lower courts
(2) S. Ct. compared Constitution, Article III, with the Judiciary Act of 1789
(3) S. Ct. stated points in their 3rd item:
(a) Constitution is the Supreme Law of the Land, and laws which are
"repugnant to the constitution" are void (a characteristic essential to all
• Constitution was ratified directly from the people - Law of the People
• Constitution was a sovereign act, unlike other types of law
• notion of unconstitutional laws is essentially attached to written
• Constitution is organic, basic, limiting law, and all contrary acts of
the congress etc. are ultra vires (beyond the limits of the people,
since the Constitution is from the people and trumps anything else)
(b) Courts are empowered to decide whether a law passed by the Congress
were "repugnant to the constitution" and therefore "void," i.e. the
courts have authority to nullify legislation and executive action as
• it is the constitutional duty of the court to say what the law is
• court must apply "the law" and ultra vires statutes are not law, so
the courts must stick to the Constitution, not the bad statute
• Constitution is superior to any ordinary act of the legislature
• what this decision doesn't do is tell Congress what to do with their
unconstitutional statute now? Is it a nullity, or just null in this case?
- the only people bound by a court's opinion are the parties at bar
- what goes on with other cases depends on the other two branches
of government (are they going to enforce it?)
- it is the court's responsibility to apply the law to the case at hand
d. NOTE: Marshall dealt with the three questions, entitlement, mandamus, jurisdiction,
in reverse order, compared to the way we look at it today - if he looked at
jurisdiction first, then the court (lacking jurisdiction) would not have to decide on
entitlement and mandamus - however, he did it backwards so they could give their
opinion on the merits, even without jurisdiction
(1) he got to say that Marbury had a right to his commission
(2) he gets to say that the executive is abusing his office - tyrannical abuse - etc.
(3) he gets to opine that the writ of mandamus will lie against the executive
(a) through a writ of mandamus, even the president can be controlled
(4) but then he says that the S. Ct. has no jurisdiction - so Jefferson "wins," but
has to put up with the obiter dicta (the extraneous stuff in the beginning
which lasts in the jurisprudence and later becomes holding) - so the
Republicans wouldn't complain, since they won, but the Federalists get
to lay the tracks for control of their court over the Republican executive
and congress
e. Dred Scott v. Sandford, 60 U.S. 393 (1856)

C.J. Tawny doesn't cite Marbury, since Marbury is not on point
(1) doctrine of Marbury is limited by a judiciary statute and Article III
(2) a statute about the courts which relates to Article III - very narrow
(3) other branches of government can't touch the court on this topic, since
it's about the court itself, not about them (case of a judiciary nature)
- it was thought that only cases under Article III were where the S. Ct.
could exercise dominion, but Tawny saw that this was an Article I
case, not Article III, and so Marbury wasn't applicable
2. Countermajoritarian Difficulty Text, p. 24
a. Note 6: "...government of laws, and not of men." - Marshall, contrasted with
"...we are supreme because we are final." - Jackson (about 150 years later)
(1) is the S. Ct. really final? Look at Amend. V - you can amend the Const. to
change a S. Ct. ruling (e.g. income tax amendment, etc.), or Amend. XI,
in response to a ruling of S. Ct. - so it's not really final, since the people can
amend it away
(2) the Executive can ignore the S. Ct. rulings, as can individuals (e.g. have a
public school graduation in a Catholic church and prayers by a priest - what
is the S. Ct. gonna do???) - Andrew Jackson: "... now let him enforce it."
(3) one problem: Pavlovian training to stop thinking about the Constitution,
since we figure the Court will do that, e.g.:
(a) congressional legislation doesn't debate constitutionality of statutes any
(b) President doesn't worry about constitutionality much (which was why
veto power was created)
(c) anti-flag burning statute - President Bush (41) during his campaign
said it was for the court to decide - if congress passed it and it hits his
desk, he'll sign it and let the court figure it out (which is contrary to
oath to protect and defend the Constitution that government officers
have to take)
C. Invalidation of STATE laws: Text, p. 26
1. Martin v. Hunter's Lessee, 14 U.S. 304 (1816)
Land originally granted from England was passed from Lord Fairfax to Mr. Martin,
and English subject. The assembly of Va. passed a law seizing any lands granted by
the crown, and moved to eject the owner, D Martin, and grant the land to the P,
the lessor, who took possession. U.S. S. Ct. originally reversed the Va. court of
appeals, and the appeal resurfaced to the S. Ct. since the Va. court refused to follow
the S. Ct. mandate and writ of error put in issue whether the U.S. S. Ct. had appellate
jurisdiction over the Va. court.
Before the S. Ct.: Federalist court argued that uniformity of national law was a reason
that the S. Ct. have appellate jurisdiction over state courts (which Republicans
didn't worry too much about). Note that Marshall recused himself (J. Story wrote
the opinion) because he had interest in some of the land in issue, so Federalists
were not too concerned with this case - it wasn't that important. The justification
that §25 of the Judiciary Act of 1789 provided the S. Ct. with appellate power over
the state courts was a textual reading of U.S. Const. Article III to demonstrate that
the federal courts had jurisdiction over "all cases..." Also, Article VI says that the
Constitution is binding on state judges, as well as federal judges. Then he switches to
an originalism argument, that the Framers and ratifiers must have meant the
state courts were to bow to the S. Ct. since there were no lower federal courts in
existence at the time of the ratification of the Constitution. In other words, the
Framers meant for most questions to go through the state courts and end up in the
final appellate level at the U.S. S. Ct.
a. good arguments were made on both sides of this argument
(1) what does "all cases" mean in Article III?
(2) even §25 of the Act doesn't cover all possible cases, only 3 classes of actions
b. Note 3, p. 33: common sense of the matter - O.W. Holmes Jr. felt that if the S.
Ct. couldn't strike down acts of Congress, the country wouldn't be in trouble, but
if the S. Ct. couldn't review the states' law, the country would come to an end
(1) it's more important to the country that state decisions be uniformly
superintended by the S. Ct. than to ride herd on Congress
D. Interpretive methods:
1. different types of constitutional interpretation:
a. textual - plain reading of the text of the Constitution (with cross-reference to
other parts of the Constitution)
b. originalism - what was the original intent of the Framers - look to the
documents and amendments leading up to the final Constitution, and argue
what the original intent is
c. natural law - the Constitution arises in the context of natural rights and
liberties guaranteed (by God), and must be read in that context
d. precedent - dodge argument and stand on the logic and holdings of prior
e. pragmatism - you use any and all means to justify the pragmatic end you want
to achieve
2. 2nd Amendment interpretation: Text, p. 48
a. read these and answer an argument:
STATUTE: Federal Housing Projects Anti-Gun ban:
Congress passes law that people living in fed. projects cannot own guns.
Lil ole lady gets repetitively robbed by thugs, gets a gun, shoots one, and
is arrested for having a handgun in a project. No state violation due to
self-defense. However, she violated a federal statute. Is it constitutional?
Construct the argument after the methods in the book.

N.B.: This was a real case, but was dismissed before it was ultimately decided (Illinois).

b. crux of Prof.'s argument:
(1) regular Militia - described by U. S. Const. Article I § 8 [15][16] refers to the
nationalized militia, governed by the Congress/government
(2) unorganized Militia - described in U.S. Const. Amend. II refers to the
people (not nationalized), who keep guns for security of the State, not Govt.
(3) so the old lady, being a citizen ("the people") should be allowed to carry

Prof. pearl: Correct bumper sticker: "When guns are outlawed,
only the government will have guns."

D. Limitations to judicial power:
1. Ex Parte McCardle, 74 U.S. 506 (1869) Text, p. 53
Congress passed an act during reconstruction (1867) providing federal courts with
power to grant writs of habeas corpus, to insure that freed slaves would be able to
have just treatment if they were imprisoned by state action. After this, there was
passed a Military Reconstruction Act, dividing the South into military districts
under martial law. McCardle was arrested for disturbing the peace, libel, etc. and
he filed a petition for habeas corpus under the 1867 act. His petition was denied
and he appealed to the S. Ct. that his suspension of a jury trial, etc., was not
constitutional. After oral arguments, Congress appealed that part of the Acts of
1867 that gave habeas corpus appellate jurisdiction to the S.Ct.
Before the S. Ct.: C.J. first addressed jurisdiction and discussed that the very
existence of the S. Ct. was determined by the Constitution, but the Constitution
also empowered Congress to limit and modify the scope and powers of the
S. Ct. jurisdiction. When Congress repealed the act granting the specific jurisdiction
(over this type of case) to the S. Ct., then the Court has no jurisdiction and can't
even hear the case, except to dismiss it for want of jurisdiction.
a. case had huge political significant - Miss. newspaper editor was squashed for
racist incitement to violence, etc. - irony was, P was unreconstructed racist
who used anti-slavery statute to protect himself from anti-slavery authorities
b. unanimous opinion but very short - difficult to determine holding
(1) Article III, § 2 - "judicial Power shall extend to all Cases, in Law and
Equity, arising under the Constitution, the Laws of the United States. . . .
[and appellate jurisdiction] with such exceptions as Congress shall make."
(a) Congress passed the Reconstruction Act, a "Law of the U.S.", so
if they repeal it, the "judicial Power" is gone
(b) if Congress gives it, then Congress can take it away
c. Judiciary Act of 1789 had to be passed before the Constitution was augmented
to provide the numbers and types of judges, the hierarchy, etc. - i.e. the Courts
were dependent on Congress to actually work
(1) under Article II, § 2[2], the Court cannot act unless Congress gives them the
power to work (via the "exceptions" and "regulations" which they make
(2) judicial power conveyed by the people through the Constitution to the
Court, but it did not work until Congress allowed implementation (power
needed to be vested - Art. III has no restraints on Congress power to
fiddle with lower courts, jurisdiction exceptions, etc. - basically plenary
d. narrow reading of McCardle - the act of 1968 was repealed, so the P must come
back under a different theory of law (if you're in federal custody under the
Judiciary Act of 1789, you can appeal directly to the S. Ct. under a writ of
habeas corpus - the Reconstruction Act was aimed at state courts) [last ¶
of case is dicta - racist Court giving McCardle a hint as to reapplying for writ]
e. broad reading of McCardle - the Congress has ultimate power to implement
powers of the Court, even though the power itself is derived from the people
(via the Constitution)
(1) every vesting of power to the Court by Congress was also an exception of
every power not vested in the Court (describing affirmatively is understood
to negate any power not delineated in the affirmative)
(2) Congress can set it up any way they want, so long as they don't violate
the Constitution in other ways (i.e. violate due process, etc.)
f. tripartite government does not operate independently, department from
department - e.g. Pres. can veto Congress, Congress can limit Court,
Court can declare Congress unconstitutional - government is not separate, but
separate with checks and balances
g. Marbury stands for the idea that Congress can't give more original jurisdiction
to the Court than the Constitution gives - Marshall says that Court can decide
constitutional issues that get to them, not that they all should
h. Notes, #5: Text, p. 55
5(a): U.S. Dist. Courts cannot have jurisdiction over school busing cases?
- they don't interfere with Constitution or constitutional protections
- before the Federal Judiciary Act, you would have to go to state court
and the federal statute would still be law of the land - i.e. the
"problem" would not be solved at the federal level, only state level
- core purpose argument - the federal courts have a "core purpose" to
hear constitutional cases
5(b): Deny S. Ct. all cases of State Law regarding prayer in school?
- if you can take away habeas corpus (McCardle) then free speech is
no problem, either
5(c): Deny jurisdiction of any state over abortion statutes?
- Congress has no power over state courts - state courts have to worry
only about whether they follow the U.S. Constitution (Congress
can't order them to do anything)
2. I.N.S. v. St. Cyr, Suppl. p. 2
Haitian immigrant was being deported after 1996 amendments to the I.N.A. of
1952 to change the provision of
On Appeal: J. Stevens held that 1996 repeal of judicial review of deportation
orders (of the I.N.A.) only meant direct judicial review (statutory), not collateral
(habeas corpus) review, as guaranteed by the U.S. Constitution. He wanted to avoid
constitutional difficulties, which he discussed in dicta. He thought that constitutional
difficulties would have arisen if the statute were read to remove habeas review, since
it would violate Article I, § 9[2]. (unless the public safety were affected in times of
rebellion or invasion).
a. J. Scalia's dissent claimed that the decision was goofy. . . .
b. Judiciary Act of 1789 - All Writs Clause bestows all writs (including habeas corpus)
on the courts, i.e. the writ of habeas corpus is set up by the Congress for the
courts, rather than the idea of J. Stevens, that the writ of habeas corpus was a
self-evident law that existed on its own
c. all the writs (writs of mandamus, writs of error, writs of habeas corpus, writs of
certiorari) were given by Congress, and Congress can take them away...
BUT, suspension of the writ of habeas corpus can only be done pursuant
to Article I, § 9[2] (not abolish for everyone or for certain classes, but just
suspend it for certain reasons)
d. Congress can always repeal enabling legislation - Congress giveth and Congress
taketh away (i.e. the Framers understood "suspend" versus "abolish")
e. 4 states refused to ratify the Constitution because it didn't specify the writ of
habeas corpus (anti-Federalists didn't like the writ of habeas corpus being left
up to Congress - but it was, although the Constitution specifies that only Congress
can suspend the writ of habeas corpus, not the Executive and not the Court)
3. Charles B. Miller v. Richard A. French, ___ U.S. ___, (2000) Text, p. 56
Prisoners sued to enjoin the operation of an automatic stay provision of the Prison
Litigation Reform Act of 1995, wherein an existing injunction is automatically
stayed after 30 days of the filing of a motion to terminate prospective relief, if
the court finds that the injunction is not in keeping with the specifics of the Act.
Prisoners contended that the Act was violative of their Eighth Amendment
rights and violative of the separation of powers principle.
On Appeal: Majority court held that the Act did not restrict the Court, but it altered
the law that the Court was applying. The courts monitoring ongoing or prospective
injunctions were not a "final judicial determination" that the Congress otherwise
could not alter.
a. courts issued standing injunctions against prisons to keep their conditions okay
b. PLRA specified narrow standards for issuing and keeping injunctions against
prisons for unsuitable conditions
c. precedent cases:
(1) Plaut - Congress cannot annul a final judgment or it's a forbidden assumption
of judicial power
(2) Hayburn's Case - Congress cannot vest review of the decisions of Article III
courts in officials of the Executive Branch
(3) U.S. v. Klein - according to this court, Klein forbid prescribing rules of decision
to the courts in cases pending before it (i.e. Congress cannot direct the outcome
of a pending case by making up new rules)
4. Justicability - does the matter belong to the "cases" and "controversies" under
Article III of the Constitution, or had the Court refused on their own to handle
some type of case (prudential limitations - e.g. rules about 3rd party standing, etc.)
a Constitution has certain limits
b. Congress can make it harder for the S. Ct. to hear a case, but not relax the limits
of Article III
c. "cases or controversies"
- basically, in the separation of powers doctrine, the Court needs to be able to
check and balance the other branches in cases and/or controversies
(1) adverse parties with injury in fact
(2) Court's decision alters the behavior of parties (binding) - is the world going to
change in anyway based on the decision?
e.g. Bush v. Gore - injury in fact was "I'm not going to be President," but he
never got the recounts to be unPresident, so the Court was premature in its
decision (ripeness)
- so this could have been an impermissible advisory opinion
- Gore's people argued this point (but still lost)
d. types/categories of limitations:
(1) advisory opinions
- Article II indicated that the President needed to get advice from his cabinet,
not the Court
- the Court should be a check on the Executive
- the Court was a "court of last resort"
- the Court's decison should bring about a change in one party's behavior, but
this won't happen in an advisory opinion (nothing changed by the Court, so
no "case or controversy")
- the rest of the following elements serve to exclude advisory opinions from
the mix by insuring there are elements that indicate the matter is not an
advisory opinion
(2) standing
- is the P the proper party to bring legal action
- usually has to be and injury in fact (advisory opinion won't have an injury
in fact, since it didn't happen yet)
(3) ripeness
- is there really a harm yet? a dispute? or do we have to let the facts develop
more (see Bush v. Gore, supra)
(4) mootness - e.g. Laidlaw, infra - if the court can't fix it, it's moot
(5) political questions - discretionary decisions/actions of the other branches
are political questions (permitted by the Constitution) not under the
jurisdiction of the Court
5. Friends of the Earth, Inc. v. Laidlaw Environ. Svc., Inc., 528 U.S. 167 (2000)
D bought hazardous waste incinerator and wastewater treatment plant and dumped
waste into local river. Environmental groups filed suit under the 1972 Clean Water
Act. District court did not enjoin D, since they had come into substantial compliance
(and actually closed and sold the plant during the suit), but awarded monetary penalty
(which went to U.S. Treasury, per statute). App. Ct. vacated order on the basis that
the case had become moot (plant was closed, etc.) and penalty would not redress any
injury suffered by P.
On Appeal: S. Ct. determined that P had standing to sue, because at least one of the
members of the groups lived in the area and claimed loss of enjoyment of the river,
etc., due to the pollution. S. Ct. also decided the case was not necessarily moot, since
effect of closure and compliance on prospect of future violations by D was not
decided by the District Court. Remanded for consideration of whether there was
any possibility of future violations by D.
Standing: 1. injury in fact; 2. causation in fact (by D's actions); 3. redressability
- without an injury, there's no dispute
- if D didn't cause P's injury, there's no dispute (at least not here)
- if the court can't fix it, there's no (point to the) dispute
a. strident dissent (J. Scalia) took issue with "feelings" of tree huggers, in absence of
any evidence of harm to anyone (and District Court found as a matter of fact
that no significant harm had been done to the environment by pollution)
b. Ginsberg felt that the merits should not be reached when deciding standing - so
she wanted to avoid Scalia's dissent argument that there was no pollution found
by the fact-finder
c. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) - Court held that P who may
at some future date in some distant place visit an endagered species did not have
standing to seek enforcement of the Endangered Species Act (Scalia opinion for
the majority)
d. qui tam actions - Vermont v. U.S. ex rel Stevens, 120 S.Ct. 1858 (2000) - Court
held (unanimously) that an interest unrelated to injury in fact is insufficient to
give a P standing, but that the interest must consist of obtaining compensation for,
or preventing, the violation of a legally protected right - but in qui tam situations,
the injury to the U.S. (by violation of the statute or whatever) is sufficient, and
the realtor is basically a subrogee of the U.S.
(1) long history of qui tam actions in England and the U.S. is supportive
(2) "cases and controversies" in Article III means those traditionally recognized
and amenable to judicial process
(3) qui tam actions originated in the 13th century when individuals brought action
on their own and the Crown's behalf
e. Allen v. Wright, 468 U.S. 737 (1984) - case that invented causation requirement
- tax-exempt status of (all-white) religious schools - Court decided that there was no
causal connection between tax-exempt statutes and (bigotted) white parents sending
their kids to all-white school (they ruled incorrectly, since the government subsidy
did indeed help white kids go to white schools)
- Court basically rejected true causation-in-fact analysis, and took more of a
common- law proximate causation thinking (it was too remote or indirect)
f. redressability - in this case, the money goes to the government
(1) why does it matter that you have redressability to make a case justiciable?
(what does redressability add to the cases and controveries clause?)
(2) Prof. argues that once causation was "invented" in the 1980s, the concept
of redressability was basically a tap-in, since you can always pay off or
stop the injury... period (if you prove causation, redressability follows)
g. mootness - the allegedly wrongful behavior could not reasonably be expected to
(1) mootness doctrine - deals with whether the wrong is ongoing or not - it is
required by Article III, since if there is no controversy, Article III does not
(2) make sure that as the case goes on, the controversy doesn't vanish (moot)
- if the controversy is gone, the Court's opinion would only be an advisory
opinion (which they don't want)
(3) J. Ginsberg talks about saving money, and after so much judicial costs "sunk"
we keep on with the case to not waste money (so this isn't an Article III
requirement, it's a prudential requirement - they don't want to waste all the
money and effort and come away without a "result")
(a) three exceptions to mootness:
- alleged repetitive wrong evading judicial review (e.g. Roe v. Wade - by
the time the Court works, the pregnancy is already finished)
- collateral consequences (e.g. you've been adjudicated a criminal and you've
served your time and it's all done, but you still appeal/protest, since you
are forever branded a convict)
- defendant voluntarily ceases the activity so the complaint is technically
moot (at issue in Laidlaw)
(b) Ginsberg is wrong (and Scalia's correct) because she calls these cases
exceptions to the mootness doctrine (the usual mootness statement is
that mootness = standing but at the end of the case)
- mootness is more flexible than standing (because of 3 exceptions)
- in other words, if mootness is the same as standing, how can you have
exceptions? you have to have standing or it's unconstitutional
- conclusion: it must not be like Article III, since there are three
long-standing exceptions to mootness doctrine (over 50 years old)
6. Baker v. Carr, 369 U.S. 186 (1962) Text, p. 80
A suit alleging that the state of Tenn. apportioned its numbers of legislatures in an
arbitrary and capricious nature made it to the S. Ct. The Court decided that it had
jurisdiction, and that the Ps had standing, and then addressed whether the issue
was a "political" one, not addressable by the Court, or not.
Before the Supreme Court: J. Brennan held that the challenge to an apportionment
did not present a nonjusticiable "political question," and the claim did not rest upon
or implicate the Guaranty Clause (Article IV § 4) of the Constitution regarding a
republican form of government. Therefore, the right asserted is within the reach of
the Fourteenth Amendment.
a. since the Luther v. Borden case, everyone had assumed that under Article IV
things were nonjusticiable, which Brennan basically overturns, giving the six
factors which now are mechanically regurgitated:
(1) a constitutional commitment of the issue to another political branch
- this is the best correlate to Marshall's decision in Marbury (another branch
has sole discretion)
(2) a lack of judicially discoverable and manageable standards
(3) the impossibility of deciding the question without an initial policy decision
(4) the impossibility of a court's undertaking resolution without expressing lack
respect for other political branches
(5) an unusual need for unquestioning adherence to a political decision already
(6) the potential for embarrassment from multifarious pronouncements by the
various departments on one question
b. J. Marshall (in Marbury) defined nonjusticiability as a matter that is vested in the
discretion of the Executive, while the courts were supposed to hear are those things
over which the law has made a legal duty/obligation that the court can enforce
- it's the duty of the court to declare "what the law is"
- if it's the discretion of the Executive, there is no law (it's up to his will)
b. dissent by J. Frankfurter:
(1) calls the majority decision a reversal of prior opinions
(2) thinks that the Court's (improper) meddling in politics will basically be bad
for morale - the moral high ground is the only "weapon" the Court has (as
opposed to the purse - Congress - or the sword - the Executive)
(a) similar to the public opinion of the Bush v. Gore Court, which basically
is "they're fixed along party lines - depends on who's appointing them"
(3) Federalism concerns - the Court should not get involved in matters concerning
the structure and organization of the political institutions of the States
(4) the Court has a limited fund of political capital to spend, so they should
save it for important topics and situations - don't use up the peoples' good
will and undercut your ability to act when you need to
c. calling it a "political question doctrine" is a little misleading, since every
constitutional law question deals with some political "stuff" or implication
(should really be called the "nonjusticiability doctrine" or some such thing)
(1) always separate the constitutional part (required by Article III) from the
prudential part, which can be changed at will by the court
d. Brennan's majority opinion considers the "political question doctrine" to simply
be applicable to the national government, not the state governments
- he equates the political question doctrine only comes into play when separation
of powers is threatened, powers meaning the 3 branches of the federal government
- this is his distinguishment between Baker and Luther (which is incorrect, since the
facts of the two cases are basically identical)
e. Note 4, p. 88:
(1) Baker basically killed the "political question doctrine"
(2) in the 40 years since Baker, only 2 cases have been "nonjusticiable"
(3) Baker v. Carr - Brennan is only concerned with separation of federal power
(similar to Marbury's discretion concept)
(4) Powell v. McCormick - black representative from Harlem, Adam Clayton
Powell, wasn't allowed to take his seat (1968?) because of allegations of
financial shennanigans, etc., based on the Article I clause that Congress can
decide on the qualifications of the members, etc. to exclude or expell people,
and he sued the Speaker of the House and got to the S. Ct.
(a) Congress argued separation of powers, Article I, Baker v. Carr - i.e. it
was nonjusticiable
(b) S. Ct. says "no" - no discretion vested in Congress - you have to use the
requirements in the Constitution (age, residencey) only - no discretion,
so it's justiciable
(c) basically wiped out what was left of "political question doctrine" except
for what is specifically written out in the Constitution
(d) only in Gilligan v. Morgan (Kent State shooting by National Guard) and
Nixon v. U.S. (Miss. judge tried by Senate for perjury, etc.) did the Court
bow out due to nonjusticiability in the last 40 years - only going by the
specific textual wording in the Constitution
- Article I specifics on Senate trials and training of Select Militia
7. Methodology Court uses in writing opinions: Text, p. 34
a. Keep these in mind when writing test answers. . . .
8. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
At issue was the Seminole Tribe suing under the Indian Gaming Regulatory Act, which
dictated that an Indian tribe could enter into a compact with a state regarding gaming
on Indian land within a state. Florida refused to enter into good faith negotiations, &
the Seminole tribe sued in federal court, as per the Act.
Before the Supreme Court: Court held that Congress lacked authority under the Indian
Commerce Clause if Article I to abrogate the state's sovereignty under the Eleventh
Amendment, and the doctrine of Ex Parte Young didn't apply, because of the intricate
remedial provisions of the Indian Gaming Regulatory Act (in other words, if Congress
would have meant Ex Parte Young to apply, they wouldn't have such complicated
remedies built into the act). Affirmed lower court's dismissal for lack of subject matter
a. the Seminoles could have sued in Fla. state court, after Article VI § 2, which says
that the judges of any state must obey the Constitution . . . .
(see Aldus v. Maine)
b. textually, the 11th Amendment doesn't seem to cover the instant case, since the
"Seminole Tribe" is not a citizen of the state, not a foreign state, etc.
(1) the Court relies on Blatchford v. Native Village of Noatoak, 501 U.S. 775
(1991) to say that they've always considered Indians citizens of the state in
which they live
c. is this case justiciable?
(1) the statute in issue instructs the state government to negotiate in good faith
with the Indian Tribe - is this like a common-law agree-to-negotiate problem
that doesn't rise to the level of real contract . . . . i.e. injunctions do not lie
to force people to follow discretionary activity (no F.R.C.P. 12(b)(6) standing
(2) only way there can be a private right to sue, then, is if Congress expressly
authorizes the private cause of action (specifically telling the governor that
he has to do it or else private individuals shall have expressly a right to sue
in federal court . . . .)
(3) same argument as Marbury v. Madison, can the court compel discretionary
activity? No - so there's no relief/remedy available
(4) for justiciability, you don't reach constitutional grounds unless you're forced
to - you try to decide other grounds (statutory grounds) first
(a) the fact that the majority didn't consider the statutory grounds, you might
think that the court is being activist, and doing this on purpose to expand
the meaning of the 11th Amendment
(b) these are Republican activists working in a conservative direction, to
further conservative agendas - they then go on to talk about the "spirit
of the 11th Amendment" to keep suits against states down

Prof. pearl: "I hate all activists!"

9. Eleventh Amendment:
a. hastily passed to overrule Fletcher v. Peck to make it impossible for a person of
of one state to sue a state government in federal court
b. Amendment XI (1798)
The Judicial power of the United States shall not be construed to extend to any
suite in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign
c. the 14th Amendment should have clearly abrogated the 11th Amendment
immunities, since it was passed after the 11th Amendment (while the
Commerce Clause of Article I does not, since the Amendment was passed
d. Notes, p. 100:
(a) 11th Amendment doesn't really prohibit citizens of suing their own state,
but that's what the Court is saying from 1890 (Hans v. La.)
(c) If P sued the governor, the 11th Amendment wouldn't on its face cover it,
but the state is still immune - but you get around the language under the
Ex Parte Young Doctrine, where you get injunctive relief based on illegal
action by the individual of the state (legal fiction)
e. exceptions to 11th Amendment immunity:
(1) sue in state court
(2) Ex Parte Young exception
(3) state abrogates its immunity - consents to be sued
- but, a party cannot generally waive jurisdiction, so where does this come
from?!? (Green v. Mansour) - and this is subject matter jurisdiction, not
personal jurisdiction (in personam jurisdiction)
(4) only talks about private suits - federal government can sue the state
(so in Seminole Tribe, the S. Ct. was upset that the Indians were suing in
the place of the Federal Government - hostile to private commandeering
of Federal power by a private entity)

II. Distribution of National Powers:
A. The Congress v. The President:
1. separation of powers/checks and balances:
a. purposes:
(1) prevent tyranny - keep three forms of power in separate hands
(a) Federalist #47 - Madison claims that "the very definition of tyranny" is the
concentration of powers (legislative, judicial, executive) in one hand (like in
England) - but it's also the balancing that's important
(b) this is horizontal separation of powers - equal footing but separate and
(c) Federalism - more of a vertical separation of powers - some powers are for
the Fed and some are for the States, etc. - vertically separated
(2) efficiency - better system than the Articles of Confederation
2. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Steel companies named in a list attached to Executive Order No. 10340, promulgated
April 8, 1952, directing seizure of the plants of such companies, brought actions against
Charles Sawyer, Secretary of Commerce, praying for declaratory judgments and
injunctive relief. District Court granted Ps' motions for temporary injunctions.
Certiorari was granted by the United States Supreme Court after the D.C. App. had
issued stay orders.
Before the Supreme Court: J. Black held that the seizure order was not within the
constitutional power of the President. Court looked for either congressional act which
granted President this power, which did not exist, or wording in the Constitution which
allowed President this action, which did not exist. President's argument, that "broad"
powers of the Commander-in-Chief covered just about anything (since there was a war)
was not persuasive to the Court, which felt that the Founders of the Nation left the law
making power exclusively to Congress. Affirmed.
Steel Seizure Case - what can the President do without congressional authority?
Can the Court step in and solve calibration problems between the Congress
and the Executive? (In this case, we don't know, since the Court acted too
fast. . . .)
a. concurring J. Jackson admitted question of executive power was not very well
spelled out in Constitution, so Court had to do a lot of scholarly speculation based
on the totality of the Constitution, etc.
(1) Court took up case on expedited review, which sort of short-circuited the
possible actions of Congress
(2) S. Ct. was on thin ice when they left the security of popular opinion
(a) if the public opinion would have been pro-labor, and didn't want to work,
the Court could have addressed civil disobedience how? they could have
"gotten the flu"
(b) Truman threatened to draft the steel workers if the didn't work - idle
threat against civil disobedience? who knows. . . .
(c) it would be hard for the Court to make people do anything
b. Truman relied on Article II for his "power" to seize the steel mills - "§ 1. [1] The
executive Power shall be vested in a President of the United States of America."
(1) this is different than in Article I, which says "legislative power herein granted
is vested . . . ." - and then Article I is long, with 10 sections
(2) so this would mean there is inherent and unlimited (if not limited) power of
executive action vested in the President - ALL executive power is given in
Article II (none retained by the States, which Article I does with Congress)
(3) specified A President - no co-presidents
(4) also, note that Truman wrote to Congress twice and they did not answer - so
you can't say the Congress disapproved of this act . . . .
c. J. Black failed to cite any precedent jurisprudence or even historical practices to
support his decision
(1) reference to the failed amendment of the Taft-Hartley Act, which applied to
non-wartime seizures of property - at best ambiguous
(2) N.B.: This is not how you write a blue book test answer . . . .
d. J. Frankfurter's concurrence also fails to cite much precedent or original
(1) he feels like there's a blank slate and we need to look at historical practice
and the President has no authority
(2) unless Congress blesses the President's action, it's unconstitutional - so in the
period between action and ratification the President is acting unconstitutionally
(??? is this right ??? - not logical - e.g. can the president shut down or act on
terrorist activities like taking flight lessons before Congress legislates)
e. dissenters (C.J. Vinson) extensively cited historic precedent of presidents taking
executive freedoms, some of which are exactly on point
(1) he concludes that the President has the same power that other presidents
have wielded
(2) is the President disempowered because of legislative silence - if Congress
disapproves, then the question is settled, but what happens before they approve
or disapprove
f. evidence:
(1) 1799 - Jay Treaty - ratified by Congress, with extradition provisions in it, and
President Adams issues a warrant for someone - C. J. Marshall claims that
President can act until Congress gives him more instruction or explanation
- Congress finally acted on giving extradition instructions in 1852, so under
Frankfurter's theory, the President was acting illegitimately for 53 years
(2) First Neutrality Act - Geo. Washington declared this without Congressional
approval until later
(3) Whiskey Rebellion
(4) Lincoln suspended the writ of habeas corpus during the Civil War (while the
Congress was silent for a while - ratified it a year later, 1863)
g. bottom line:
When Congress says the President can act, then he's got the power. When Congress
says he can't act, then... is he handcuffed? But he's taken an oath to support the
Constitution, so he can act unless he's told specifically not to . . . In fact, if the
Congress tells him he can't do his own Article II work, he has to stop.
(1) Sinclair v. United States, 279 U.S. 263 ()
if the President won't enforce a Supreme Court order, the Congress can pass
an extra-executive order
(2) Truman was right - he asked Congress twice - but they sat on their hands
(3) Current theory ("Stroke of the pen, law of the land, gotta love it!") is that
unless forbid by Congress, the President can work by Executive Order
- modern court looks at Jackson's opinion and Vinson's dissent

Prof. pearl: The Articles of Confederation got it right, by not having a president.
They got away from the problem of electing a king for eight years.

h. interpretive techniques - assumptions about Constitutional interpretation often
influences the result of the judicial decision-making:
(1) J. Black's - formalist, formalist reading of Constitution, no citation of cases
or history or etc.
(2) J. Jackson's - pragmatic or functionist - how does the government function and
and how it fits
(3) C.J. Vinson's - historical, precedence, etc.
(4) J. Frankfurter's - sort of the same - in understanding the ambiguous language,
you look and see how historically the officials have treated the language
- several of justices (on both sides) agree there are cases where the President can
act independently and with vigor, but all justices concede that once Congress takes
the issue, the President is powerless to act (Article I trumps Article II) and the
Congress can even take the President's power away if they want
- you get suspicious when a justice departs from his usual and customary style to
use another one, to obviously get a preordained result
3. William J. Clinton v. City of New York, 524 U.S. 417 (1998)
City, health care providers, and unions, and farmers' cooperative and individual member,
commenced separate actions challenging constitutionality of Line Item Veto Act after
President exercised his authority under Act to cancel provisions of Balanced Budget Act
and Taxpayer Relief Act. District Court entered order holding that Line Item Veto Act
was unconstitutional because it violated the Presentment Clause of the Constitution
(Article I § 7(2)) and also that it impermissibly upset the balance of power.
Before the Supreme Court: On expedited appeal, J. Stevens, held that Line Item Veto
Act violated Presentment Clause by departing from "finely wrought" constitutional
procedure for enactment of law. Affirmed.
What can the President do with congressional consent? Can the Court (again)
step in and settle power questions between Congress and the Executive?
a. Article 1 § 7(2): Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be prsented to the President of the
United States; if he approve he shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have originated, who shall enter the
Objections at large on their Journal, and proceed to reconsider it. . . .
(1) no actual conflict here, since the Line Item Veto Act was bipartisan and
agreed to by Congress and Clinton - no argument about the Act
(2) Court is attacking an act which everyone liked
(3) Line Item Veto Act provided for an override of a mere majority vote, while
the Presentment Clause requires a 2/3 majority to override the veto
b. J. Stevens declared that cancellation of an item keeps it from "having legal force
or effect," in essense, making the whole statute (minus the cancelled part) a new
bill or law, which had not been approved by Congress
(1) interesting that George Washington felt that you had to send the whole
bill back, not just part of it - if it was perceived by him to be an all-or-none
thing, that's pretty authoritative
(2) interesting that the Confederate Constitution had a partial veto in the
Presentment Clause to include an item veto (same as a line item veto)
because everyone knew that line item veto wasn't allowed in the U.S.
c. J. Stevens distinguished from previous similar acts which allowed the President
discretion at fact-finding, acting in a prescribed manner after something or
another came to his knowledge (e.g. Field v. Clark, where Congress decided the
ultimate course of action, but left it to the President to decide if the threshhold
circumstances had arisen - occurance of particular events)
(1) formalist interpretation
(2) looking formally at the Presentment Clause, he felt that the President can
sign the bill, or return the bill - the line item veto gives an alternate act which
is not in the Constitution (approve part and it becomes law - cancel part)
(3) in effect, the President amends the bill and the amended bill becomes law,
which is impermissible (sole method of amending or appealling is by a new
statute, according to the Constitution)
d. J. Kennedy, concurring, spoke of the threat to individual liberties if there was
taxation without adequate checks and balances
(1) also formalist opinion
e. J. Scalia, dissenting, argued that the Congress' authorization for the President
to cancel a budget item was the same thing as discretion to spend (or not) on
a budget item, which power had been enjoyed by Presidents since the founding
(and then gave examples of Grant, Lincoln, Truman, etc.)
(1) usually a textual formalist, he turns to pragmatic and functional arguments
(2) if the New Deal is constitutional (allowing huge delegation of authority to
the President, e.g. FAA, etc.), allowing "rule" making (not "law" making) to
the President, then why isn't his okay???
(3) if this is unconstitutional, then what about the New Deal regulatory structure
(4) he doesn't make the point of: why do these general taxing and spending bills
get passed in these formats (all complicated and lined)? why doesn't Congress
just give each item a separate bill # and he can sign or return each one, item
by item - because Congress wants these big "Christmas tree" bills passed so
that your pork gets in (kind of hidden) within the big bill - get reelected by
getting stuff for your constituents
(a) so if you go item by item, there won't be a congressional majority on each
individual item
f. irony of the strict formalist approach:
(1) Stevens blesses presidential impoundments - they can be very contentious when
the President refuses to allow Congress's desired spending
(2) here, there is agreement by bipartisan Congress and President in the Act, and
formalistically he can make it unconstitutional
4. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) Text, p.132
Proceedings by the United States against the Curtiss-Wright Export Corporation and
others, under indictment charging a conspiracy to sell arms of war to a foreign
government in violation of a joint resolution of Congress. From a judgment sustaining
a demurrer to the indictment, the government appeals. (D claimed Congress could
not delegate this authority on the President, as it was not specified particularly in
the Constitution - structural or institutionalist argument based on separation of powers.)
Before the Supreme Court: Reversed, and cause remanded. J. Sutherland explained the
difference between internal or domestic and external or foreign affairs, in that the
Constitution was primarily concerned with enumerating and stratifying the powers
referable to internal affairs. Foreign affairs were the province of the sovereignty
which passed from the British Crown to the Union, not the states, when the country
revolted against England
a. Joint Resolution stated that if the President found that prohibition of the sale of
arms to countries at war could help peace, then he was empowered to make a
proclaimation and make it illegal for such arms sales (war going on for several
years in Chaco Province, Bolivia, with Venezuela)
b. if you used J. Black's reasoning from Steel Seizure case, he would look for wording
from the Constitution (absent) or permission from statute (YES - Joint Resolution)
to decide whether the President had this power - he'd say YES, statutorily
c. J. Sutherland talked about sovereignty as though it were land or property, that it
always had to be somewhere, and when the U.S. split from England, the sovereignty
passed from the Crown to the "union" of the states that split and formed the new
country - historical argument (to get around recent S. Ct. cases which dealt
contrarily with domestic affairs - needed to sidestep recent cases and get into
another playing field) but basically becomes a natural law argument (nature of
sovereignty, etc.)
(1) "transatlantic springing sovereignty" - people make fun of this
(2) domestic power, according to Sutherland, specifically give part of their power
to the national government
(3) where was this sovereignty between 1776 and 1781 (ratification of the
Articles of Confederation)???
(4) what happens between 1781 and 1789? etc. - historically shaky
d. since sovereignty with respect to foreign affairs never rested in the states, the
Constitution did not have to portion it out, some to the federal government,
like it did for internal affairs
e. Article II § 2(2) - He shall have Power, by and with the Advice and Consent of
the Senate to make Treaties, provided two thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors . . . .
f. Federalist Papers 57-77, Hamilton defends the "energetic executive" - the power
in the Constitution given the President (not existing in the Articles of
Confederation) - government needed a fast-acting power, rather than law by
committee, esp. in war and foreign affairs situation
5. Dames & Moore v. Donald T. Regan, 453 U.S. 654 (1981) Text, p. 135
President Carter, under International Emergency Economic Powers Act, froze all
Iranian interests in the U.S. after American hostages were taken in the Embassy in
Tehran. P filed suit in USDC (C.D. Ca.) against Iran & Iranian entities, etc.,
for contractual money that Iran owed P. Subsequently, President entered into an
agreement with Iran and the matter was settled, and Executive Order was issued
dissolving all of the effects of the frozen assets, etc., and dissolving any and all
U.S. claims against Iran. P sued, apparently claiming President did not have the
authority to dissolve suits in federal courts. Lower courts upheld the Executive
Orders and P appealed.
Before the Supreme Court: J. Rehnquist considered the issue of whether the
President has authority to suspend claims pending in U.S. courts. He concluded
that the IEEPA and the Hostage Act on their faces did not specifically authorize
this type of action by the President. However, both statutes were evidence of a
looser sense of congressional acceptance of a broad scope executive action in
similar circumstances.
a. Algerian Executive Agreement - ratified by Ronald Regan immediately on
taking office - this opinion was approximately 9-0 (or 8 1/2 - 1/2)
(1) Executive Agreement = agreement between heads of state without any
ratification by Congress
b. in J. Jackson's 3 zones of Executive authority, this one lies in the Twilight
Zone between Congressional approval and Congressional disapproval - but
Congress has a pattern of approving of these types of things, and with their
silence and pattern of acquiesence, we can infer Congress would approve of this
(1) but in the Steel Seizure case, J. Jackson opposed Presidential action - here,
they approved it almost unanimously - Jackson saw silence as bad
(2) called by some as the most sweeping case to date supporting sweeping
Executive foreign affairs power
c. one question not asked: in the spirit of Sutherland's Curtis-Wright opinion,
that sovereignty exists in the Executive, why should foreign affairs decisions
of the Executive turn on congressional approval?
(1) this will be important in the Iraq/Saddam Hussein question now. . . .
B. Executive power:
1. United States v. Richard M. Nixon, 418 U.S. 683 (1974)
President was named an unindicted coconspirator and a 3rd party Rule 17(c) SDT was
issued for tapes and documents relating to his conversations with aides and advisors.
President moved to quash, based on Executive Privilege, etc. U.S.D.C. D.C. denied
his motion and held that the judiciary, not the Executive, was the final arbiter of the
claim of executive privilege. Both parties moved for certiorari before judgment.
Before the Supreme Court: C.J. Burger
a. Fed. R. Crim Proc. 17(c):
b . President claimed case was non-justiciable political question of interbranch dispute,
and that Executive had control of prosecutions (i.e. A.G. office)
(1) Court held that it was Court's power to say what the law is (Marbury)
(2) Court held that President had power to delegate prosecutorial power thru the
A.G. to the special prosecutor's office
c. Re: Executive Privilege
(1) role of the Court to decide whether (by law) President has privilege and what
the scope of that privilege is
(2) nothing in the Constitution precludes an interpretation that gives another
branch power final authority, but Marbury states it's the Court that decides
what the law is (precedent is Marbury dicta - not a holding)
(3) claim of Executive Privilege is still reviewable by the Court (any district
court) - because the courts have to be able to say what the law is. . . .
(4) Court felt Executive Privilege existed and was needed, but:
(a) need for candor between President and advisors
(b) need for confidentiality
(c) constitutional underpinning to confidentiality, but it's not absolute
- must yield to some judicial review
- must have specific reason not to have judicial review (in this case, it
would have been protected in camera review at the district court level)
- balance on a case-by-case basis: need for confidentiality vs. need for review,
(here, need for criminal evidence outweighed executive privilege, and the
President only claimed a general confidentiality, no specifics)
- absolute confidentiality would interfere with judiciary's constitutional
function and interfere with Fifth and Sixth Amendment rights
C. Legislative authority:
1. Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983)
Chadha was in the U.S. longer than his visa and was ordered deported. INS judge
ordered his deportation suspended, but a congressional committee passed a rule
under § 244(c)(2) (Immig. Natur. Act) to oppose his permanent residency. He
appealed and the INS backed him (and the A.G.), and the 9th Cir. ruled that the
§ 244(c)(2) was unconstitutional.
Before the Supreme Court: S. Ct. determined that § 244(c)(2) violated the
separation of powers. Congressional veto circumvented Presentment Clause (§ 7)
and the bicameral congress (§ 1). Very textualist opinion, analyzing the wording
and purpose of the Constitution, affirming 9th Circuit.
a. Congress passes legislative vetos because they don't want to write the detailed
statutes in case they offend someone and lose votes - if they make a vague law
they look good, and they can slap the Executive's hand if something goes "wrong"
and they look better again (congressional courtesy - any one person on a
committee can request a veto and the rest follow by courtesy)
b. in this case, Congress took action against Chadha (and others) for war protests
(anti-Vietnam War marching, etc.) - so someone in Ca. congressional district
was upset
c. J. Powell (concurring) thought this was quasi judicial activity - no general rule
applied, but Congress made specific determinations about specific people, just
like a judicial ruling
d. J. White (dissenting) thought this was quasi executive activity -
e. J. White (dissenting): whether it's by Presentment or not, if the Executive (e.g.
via A.G.) and Congress (e.g. via committee), isn't it the same thing
(1) the whole modern administrative state is a violation of separation of powers
because you have administrative law judges acting executively and executive
branches acting judicially, etc. - you'd have to trash the whole system
f. what does Congress do after Chadha? - how does legislative activity work now?
(1) under the veto power, special interest lobbying was on the tail end (after the
law was passed), and now it has to be on the front end
(2) Federalist #10 and #51 felt that Congress should be more deliberative (i.e.
don't allow sloppy law making, and then allow special-interest to change it
2. Bowsher v. Synar, 478 U.S. 714 (1986)
Congress passed the Gramm-Rudman-Holling Act to eliminate the budget deficit. The
Comptrollwer General (part of the Executive arm) was given certain functions within
the Act to cut spending if deficits went over a certain limit. Congressman Synar filed
suit to declare the act unconstitutional and the District Court held it violated the
separation of powers. Direct appeal to the S. Ct. (secondary to the Act). . . .
Before the Supreme Court:
a. Comptroller General's discretion in applying the law indicates inherently
executive power - this shouldn't lie with Congress or Congress' control
3. Morrison v. Olson, 487 U.S. 654 (1988)
Independent Counsel provisions of the Ethics in Government Acts of 1978 were
challenged based upon separation of powers, since the A.G. pointed out the problem,
but the Special Division (a congressionally-appointed court) could appoint the special

a. Independent Counsel provisions (Title VI of Act) - same statute that led to the
appointment of Kenneth Starr - allowed to lapse in 2000 after it was used
against a democratic president:
(1) how the I.C. is picked (appointed by Special Division court, after A.G. finds
grounds for investigation)
(2) how the I.C. may be removed
(a) for cause, incapacity, etc. - removal by the A.G.
(b) for completion or substantial completion of job - by Special Division
b. Article II § 2, cl. 2 - Appointments Clause:
"[The President] shall . . . nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be established
by Law; but the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments."
(1) divides appointments into Principle officers and inferior officers
(2) Court found that Appellant was an inferior officer
(a) subject to removal by higher Executive Branch official (in spite of any
independence in her job, she was still removable by the A.G.)
(b) only appointed to do limited duties
- contrast this to Ken Starr's far-ranging duties to follow the case of
Clinton all over the country - Prof. thinks this was way too wide, in
comparison to the idea of "limited duties" discussed by the Court here
(c) jurisdiction limited
(d) office of limited tenure
(3) Appellees argued that Constitution did not empower Congress to make inter
branch appointments
(a) facially, Appointments Clause allows "such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments," which seems to allow interbranch appointments
(b) Courts are good choice to appoint prosecutors, since they do it all the
time in criminal cases - not an "incongruous" inter branch appointment
c. separation of powers analysis:
(1) two dangers in separation of powers analysis w.r.t. the President:
(a) does restriction of A.G. in removing the prosecutor interfer with the
President's exercise of Executive funcion?
- in older cases, the Court held that the President should have control
over "purely" executive appointments
- in this case, Court changes their line in the sand to say that the Congress
can set up regulations as long as they don't completely strip the President's
authority to terminate the prosecutor
(b) does the Act as a whole interfere with the President's ability to control
the prosecutorial powers wielded by the I.C.?
(2) similarly vis-a-vis the Court, there is no violation of the separation of powers:
(a) Special Division court has no review power over the A.G. action
(b) Special Division judges cannot preside over the case at hand
(3) why did the Framers have an impeachment mechanism, but the Congress can
just make a law creating a special prosecutor?
(a) if the election of the President is the most important and intense political
even determined by the Constitution. . . .
(b) why shouldn't the impeachment of the President not be the second most
intense political event for the people
d. J. Scalia's dissent:
e. Mistretta v. United States, 488 U.S. 361 (1989) - functionalist opinion that defers
to Congress and doesn't want to look too closely
f. Problems: Text,

III. Congressional Power
A. Necessary & Proper Clause:

U.S. Constitution, Article I § 8 - . . . . To make all Laws which shall be necessary
and proper for carrying into Execution of the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department
or Officer thereof.

1. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1918) Text, p. 201
This was an action of debt, brought by the D in error, John James, who sued as well for
himself as for the state of Maryland, in the county court of Baltimore county, in the
said state, against the P in error, McCulloch (cashier), for taxes under the act
of the legislature of Maryland, from the 2nd Bank of the U.S, which Maryland sought
to tax, under the terms of the disputed statute. Judgment being rendered against
the P in error, upon the following statement of facts, agreed and submitted to the court
by the parties, was affirmed by Ct. App. of Maryland, and appealed to the U.S. S. Ct.
Before the Supreme Court: Congress has power to incorporate a bank. Though the
power of establishing a corporation is not among the enumerated powers granted by
the constitution to the general government, yet such power may be exercised by it
whenever it becomes an appropriate means of exercising any of the powers expressly
granted. This doctrine does not apply to a tax on the real property of the bank, in
common with other real property in a state, nor to a tax on the interest of the citizen
of a state in the bank, in common with other similar property throughout the state.
The state within which a branch of the United States Bank may be established cannot
constitutionally tax it, nor pass any law to control or impede its operations, or the
operations of the parent bank.
a. 1st Bank of U.S. - signed by Washington - expired in 20 years and then debated
in 1811 in Congress about the renewal (charter of 2nd Bank of the U.S.) which
defeated bill - passed a bill 4 years later, vetoed by President Madison - in 1816
it was repassed, and signed by Madison
(1) Madison deferred to legislative and popular arguments that bank was okay
under the Constitution
(2) bank would act as sole fiscal agent for the U.S. - payroll, etc. - notes were
legal tender of the U.S.
b. Maryland - taxed of $15,000 on all banks not chartered by the Maryland
legislature (about $280,000 in today's money), which meant only the Bank of
the U.S. - McCulloch refused to pay the tax
c. first question - Has Congress the power to incorporate a Bank?
- Marshall has to show that the existence of the Bank is legitimate, in order to
then have to proceed to the second question, whether Maryland can tax it
(1) Marshall looks at Maryland as a sovereign state - what does that mean?
(a) Maryland tries to argue that the Constitution came from the states
(b) Marshall says the sovereignty can come from the
- people of each state
- the states themselves
- the people of "the whole U.S." sort of globally
(c) initial Preamble of the Constitution originally was drafted with "We, the
People of ... name each state... " came back from the Committee on
"style" with "We, the People of the United States,. . . ." with no explanation
for the change - they just did it
(d) Article VII has the Constitution ratified by nine states - what about the
other 4 states who had to ratify later? - Marshall implies that the individual
states don't matter, but Art. VII says "for the state so ratifying," meaning
that the other states aren't held to it - so where's the sovereignty???
(2) the fact that making a Bank isn't expressly described in the Constitution,
Marshall says that the "expressly" term used in the Articles of Confederation
was left out to expand on the capabilities under that Constitution, not to
limit them to the enumerated powers- in Marbury, he said that no clause in the
Constitution is intended to be without effect, unless the words require it to be
(a) if this is true, you basically make the 10th Amendment superfluous
(b) Article I marks the great outlines of Congressional power - you can't
have everything enumerated, like a legal code, or the people would not
be able to understand it
(3) Marshall looks to Article I § 9 to say the broad outlines of Congress' power
needed some restriction on particularly important things that were scary to
the supporters of individual rights or people afraid of the Crown's power in
the English system - this is sort of a mini-bill of rights to keep the broad and
expansive power from overwhelming some sensitive areas
(a) Necessary & Proper Clause - Marshall decides that "necessary" doesn't
mean what Maryland thinks (e.g. "vital"), but that it can be convenient
or useful - looking at Article I §10(2) and it says "absolutely necessary,"
which indicates that "necessary" is not an absolute, and must be added to
- Johnson's dictionary of the English Language of the time defined
"necessary" as "needful and indispensibly necessary" - this would
make "absolutely necessary" redundant
- if Maryland uses a narro word for "necessary" then what does "proper"
mean? is it superfluous
(4) Marshall gets into a confusing contradiction:
- if the Necessary & Proper Clause is added to expand, then why do you need
§ 9 to limit the powers... if you needed to expand it
(5) Implied powers means-end relationship:
"Let the end be legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consistent with the letter and spirit of the constitution, are
(a) basically, he was saying "If it's not specifically prohibited by the
text of the Constitution, then it is constitutional."
(b) just after this sentence in McCulloch, he then tries to reassure that Congress
does not have plenary powers
- limitations are - can only use power to perform things entrusted to it
- degree of necessity of the power is discussed "in another place," i.e.
in Congress
- Court can only limit Congress by watching for prohibited actions and
pretextual actions
- did this give unlimited implied powers??? some think so. . . . what's the
point of enumeration of powers after McCulloch?
- Jefferson felt this gave Congress too much power, and mooted the
enumeration of powers - so why do we have an enumeration now?
- Marshall wrote pseudonym articles to the newspaper supporting his
decision here - the enumeration sets up the limits to work under, and
the implied powers are the "fill-in-the-blanks" within the enumerated
powers, i.e. if there were no enumeration, what would the limits on the
implied powers? you need a limit for the means-end test to work under
- so if what Congress does cannot be connected to any enumerated
power, then Congress would be acting as a pretext, which is improper
- Court's job is to watch for pretextual behavior and use the means-end
test to evaluate congressional statutes
(c) Marshall says that the flexibility to decide what the Constitution means
has to be left to Congress (at least in so far as rational basis) to decide
what needs to do - the Court simply decides if the act is not prohibited
and if it has some rational basis (not necessarily the best idea, but okay)
- ". . . it is a constitution we are expounding. . ." - leave Congress the
flexibility to do the work - the Constitution can't cover it all itself
(d) Jefferson actually wanted more judicial activism, and to strike down
the Bank - but Marshall defered to Congress the enumerated and the
implied powers
(6) Concept of Maryland's taxing of the U.S. Bank:
(a) can Congress create a bank? yes - it's necessary, we all agree it's handy,
it's not forbidden by the Constitution
(b) what does Maryland's taxing the bank cause? destruction of the bank - i.e.
diminishes the bank
(c) if one part of government creates something, and another part destroys it,
the highest part on the constitutional ladder wins - in this case, the Fed
i.e. the supreme authority, the Constitution, has to resolve the problem
(therefore the Federal government wins. . . )
(7) Sovereignty argument: if you have sovereignty, you have it only over your own
subjects - therefore, taxing, flowing from sovereignty as it does, can only have
force on the constituents/subjects of the sovereing - the U.S. is not a constituent
of Maryland
- "They [the people of America] did not dsign to make their government
dependent on the states."
(8) Supremacy Clause: Article VI ¶ 2 - . . . This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges of every State shall be
bound thereby, any Thing in the Constitution of Laws of any State to the
Contrary notwithstanding."
- but since here Congress has not enacted a preemptive law contrary to
Maryland's tax, so Marshall had to make an implied immunity from the
Supremacy Clause (using such bytes as "power to create, power to destroy")

N.B.: Good test question: Can California, for good reasons (energy crisis), pass an
energy conservation law which restricts federal building usage? This was a
question on the California Bar last year - it's a good test question. So does this
violate the McCulloch default rule that Marshall argued for implied immunity
of the Supremacy Clause? - Look at Amendment X, also. . . How does this make
sense with Marshall's argument?

(9) After McCulloch, some states tried to get bank taxes anyway with their
militias (e.g. Ohio)
- Bank of U.S started losing popularity, due to corruption
- in 1832, the Whig Congress passed a renewal, but Jackson vetoed it and
returned it to the Senate with a note about constitutiality, saying that although
the Court said the Bank was constitutional, he, the President, felt that it was
NOT constitutional and wouldn't sign it
- the different branches of government can make constitutional decisions
on topics within their own subect matter
- Jackson didn't get overridden, and was attempted to be assassinated by
Richard Lawrence, a house painter who blamed Jackson for the depression
that caused his business to go broke (by getting rid of the Bank?) - but Jackson
thought that the guy was really hired by Whig Bankers. . . .
Prof. pearl: "Most of the great cases . . . come down to a Federalism question."

B. Commerce Clause:
1. Background:
a. center of the debate on Federalism for a number of years is the Commerce Clause
b. issue framed by Jefferson (strict construction of powers) versus Madison (broad
construction) - and 10th Amendment (is it narrow, or can it be used broadly to
strike down other areas)
c. underlying normative issues:
(1) how important is the protection of the state's quasi-sovereignty and federalism
(e.g. is it states rights or federal rights)
(a) opposition to states rights say national legislation is needed to handle
national problems, and our problems today are different from the Framers
so we need to evolve...
(b) federalists usually talk about 3 benefits to protecting federalism:
- protecting federalism is a way to decrease the likelihood of congressional
tyranny - harder to evade a tyrannical federal government than a
tyrannical state government (state tyranny is easier to handle)
- you enhance democratic rule by enhancing federalism (keep government
closer to the people - home rule government) - subsidiarity in Catholic
theology (most effective government at the lowest level - closest to the
people, more able to interact directly with people and effect changes)
- if you allow the states to be laboratories for social experimentation, you
get healthy development of the country (Brandeis' idea - one-size-fits-all
national solution inhibits growth and development) - so when do we
experiment, and when do we stop experimenting since we have enough
data already (and further, who decides? local, court, congress?)
(2) is it the role of the S. Ct. to decide this question, or should it be a political
question for the other branches - does the 10th Amendment work here, or
should this be left to Congress and the President
(a) political safeguards - judicial enforcement of federalism is unnecessary
because states get their benefits through the political process (Wexler)
(b) Commerce Power, Spending Power, Enforcement Power - definition of
congressional powers by the Court (different during different historical
periods - sometimes broad, sometimes narrow)
2. Commerce Clause jurisprudence:
a. early on, through the Marshall era: very little used by Congress, so not much done
until 1880s
b. 1180s-1937 - narrow experssion of Commerece Pwoer
c. 1937 1990s: no limits to the Commerce Power at all
d. definition of "Commerce"
(1) Commerce among the nations,
(2) what does "among the states" mean
e. does the 10th Amendment limit Congress independently

U.S. Constitution Article I § 8(3):
The Congress shall have Power . . . . To regulate Commerce with foreign
Nations, and among the several States, and with the Indian tribes. . . .
a. since they listed those 3 things, what does Commerce mean - drafters included
three things so as to cover the various possibilities
b. under modern post-New Deal interpretation of "Commerce," if you drop out any
one of the triad, you don't change anything (e.g. if you scrap "among the several
states" - you still cover growing wheat in Iowa, since the price of the wheat has an
impact on foreign trade, so the foreign Nations clause would still get you there. . . .)
c. any definition of "commerce" should make sense as applied to either of the three
entities I§8(3), foreign nations, the states, and Indian tribes

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

4. Text, Note 5, p. 214: Difference between a federal system and merely a decentralized
unitary government? - sort of a structural argument
In a federal system, the authority comes both from the federal and the state
government, whereas in a decentralized state, the lower branches of government
merely act as delegates of the national governemt - authority resides in the
federal system
a. Hamilton - Federalist #84 - you don't need a "bill of rights," since the whole
Constitution is a list of enumerated rights that act as a bill of rights - enumerated
limited powers will have the same result as a bill of rights
5. Gibbons v. Ogden, 22 U.S. 1 (1824) Text, p. 215
Livingston & Fulton got exclusive rights from the State of NY to use NY waters for
steamboat commerce. Gibbons ran two steamboats, the Soudinger and Bellona, between
Elizabeth, NJ, and NY, and Gibbons, who was in with Livingston & Fulton, sued for
injunction to stop Ogden. The injunction was granted and Ogden worked his way into
an appeal before the Supreme Court.
Before the Supreme Court: S. Ct held that the decree of the Court of New York, which
perpetually enjoins Thomas Gibbons, the appellant, from navigating the waters of the
State of New York with the steam boats the Stoudinger and the Bellona, by steam or
fire, is erroneous, and hereby reversed and annulled.
a. C.J. Marshall's opinion - discusses how the states changed in character when they
became states under the Constitution, with enumerated powers, etc. - the extent
of the change is the issue (the strict or liberal construing of constitutionally
enumerated powers)
(1) finds that there is no source within the Constitution of the rule as to how to
interpret the necessary and proper clause (liberal or strict)
(2) Constitution enumerates, but does not define - to settle the issue, you have to
define the word "commerce" and the word "regulate" and the term "among the
several states"
(3) Ogden argued that "commerce" meant buying and selling, exchange of
commodities, etc. ("cum merce" - Latin root "with merchandise") but did
not include navigation (in particular, they were ferrying people, not
(a) Marshall disagrees and makes an original understanding argument that
commerce must include navigation (so this meant that it didn't have to
be actual trade in merchandise, it could be any navigation)
- this was a victory for free trade (no state monopoly on steamboats)
- this threatened S. Carolina, since they "traded" in slaves (humans) and
were fearful this left the door open for federal regulation of slave trade
(b) Marshall also makes a textual argument - does "commerce" exist anywhere
else in the Constitution? - Section 9: ... No Preference shall be given by any
Regulation of Commerce or Revenue to the Ports of one State over those of
another. . . - so commerce must include navigation, since this other clause
(the Excise Clause) shows that commerce has to do with navigation
(4) "among the states" - navigation/commerce among states
(a) must concern more states than one - intermingling of states in commerce
(b) can't stop at the boundaries of each state, but can go into the interior
or nothing would work - commerce between two states cannot take place
outside of the states (counters the argument of NY Chancellor) - it's not the
location that makes it interstate commerce, but it's the transaction itself,
whether it occurs between the states
(c) in commerce with foreign nations, you must continue to have federal
jurisdiction when the foreign vessel comes into a state (at the end of its
voyage, e.g.)
(5) "regulate commerce" - what does "regulate commerce" mean?
(a) "to prescribe the rule by which the commerce is to be governed"
(b) Marshall has to define what regulation means, so he can prevail against the
argument that the right to "regulate" the navigation lies within the state's
(c) J. Johnson (concurring) states that a power over commerce is given to the
federal government (by the states via the Constitution) and is plenary
(d) Marshall, however, says there is commerce within the states that is for the
states alone, and Marshall distinguishes inspections from "commerce"
- everything not granted to the federal government constitutes the "Reserve
Police Power of the States"
- he talks about concurrent powers (e.g. taxes) which both state and
federal government can use, in their respective jurisdictions - but Article
VI always has Congress' laws preempting state laws (Supremacy Clause) if
states pass laws on the same topic as national laws
6. Wickard v. Filburn, 317 U.S. 111 (1942) Text, p. 225
Farmer grew wheat and did not pay taxes specified by the Agricultural Adjustment Act
of 1938. He sought declaratory judgment that thte wheat marketing quotas specified in
the Act were unconstitutional, at least as applied to him, because they violated the
Commerce Clause or the Due Process Clause of the 5th Amendment.
Before the Supreme Court: J. Jackson stated that the character or scope of "commerce"
sort of changed over the years, yielding to practicality. Basically, Congress has power
to regulate that which "exerts a substantial economic effect on interstate commerce . . .
irrespective of whether such effect is . . . 'direct' or 'indirect.'" Wheat is a problem, so
Congress has the power to regulate it for the national good. Whether this Act was the
best way to do that or not is a political question, not a judicial one - as long as it is
not violative of the Constitution, "the wisdom, workability, or fairness of the plan or
regulation" is not the Court's concern.
a. the argument that wheat grown for one's own local consumption should not fall
under the ambit of the Act is defeated by the reasoning that stockpiling or using
one's own wheat has an affect on the wheat in commerce (because if you have lots
of your own, you don't buy any from anyone else)
(1) "aggregation theory" - the aggregation of all the trivial effects add up to a
substantial affect on interstate commerce (price of wheat, etc.)
(2) is there anything under an aggregation theory that can not be regulated by
Congress - not much, in terms of limits. . . .
b. "It is the essence of regulation that it lays a restraining hand on the self-interest of
the regulated and that advantages from the regulation commonly fall to others. The
conflicts of economic interest between the regulated and those who advantage by it
are wisely left under our system to resolution by the Congress under its more flexible
and responsible legislative process."
c. Wichard is distinguished from Gibbons by the fact that here, the Court was dealing
with actual economic transactions, and the issue was how far down the rabbit hole
Congress could go regulating it (wheat industry), whereas in Gibbons, it was an issue
of what scope "commerce" actually covered (and did it include navigation) - Wichard
addresses the "substantial economic effect" on commerce, while Gibbons addressed
what commerce actually was
d. Note 1; p. 235: Wheat is a commodity, so maybe noncommodities can't be regulated
- Heart of Atlanta stands for no, since Heart of Atlanta doesn't deal with any type
of commodity, it deals with interstate commerce of people
7. Heart of Atlanta Motel, Inc. v United States, 379 U.S. 241 (1964)
Motel in Atlanta that catered to an interstate (~75%) clientele filed suit to contest the
constitutionality of Title II of the Civil Rights Act of 1964, since motel did not want
to rent rooms to Negroes. (Title II was the section on public accomodation - the Act
covered voting, federal programs, employment, etc.)
Before the Supreme Court: J. Clark
a. Act relied on the 14th and 15th Amendments, the Commerce Clause, and the
Necessary and Proper Clause as grounds for it's power
(1) 14th Amendment was more logical to use for this matter, but the wording
of the Amendment starts with "No State shall. . . ." and you could make the
argument that this wouldn't cover private action
- a number of precedential cases (Civil Rights Cases) "gutted" the 14th
Amendment to get private concerns out from under the "No State shall. . . ."
(2) Commerce Clause - Court devises a "rule" for application of the Commerce
(a) does Congress have a rational basis for finding that the activity/enterprise
in question affects commerce
(b) if it does, are the means Congress selected to eliminate the evil reasonable
and appropriate
(3) applying Wickard aggregation theory to the travel of blacks gives support to
a significant relationship to interstate commerce
(4) Katzenbach v. McClung, 379 U.S. 294 (1964) - Ollie's Barbecue case - the Court
held that the white-only restaurant have somehow been connected by Congress
to depressed per capita spending by African-Americans, which presumably
affects commerce
(a) cf Wickard, Heart of Atlanta - no proof here of the trivial effect on interstate
commerce, in fact, the antidiscrimination policy will have a deleterious effect
on interstate commerce (since sales will go down if blacks are let in)
(b) Court changes the standard of review - Court invents the rational basis
test which means the Court is unconcerned about the accuracy of the
economic arguments of the parties (and they accept the U.S. argument,
even though it's backwards)
(c) a black guy owns Ollie's now (Birmingham) and there are good t-shirts
(d) from now on, the Necessary and Proper Clause has a role to play in order to
argue for power to regulate people instead of just commerce itself under the
Commerce Clause, and the McCulloch doctrine starts to come in, too, to
regulate morals, rather than commerce.
(5) Boynton v. Com.of Virginia, 364 U.S. 454 (1960) - case involved a black bus
passenger who was refused food because of his color, and he was arrested for not
leaving the premises of the terminal. The Va. S. Ct. upheld his conviction, and
U.S. S. Ct. (J. Black) reversed and remanded, holding that bus terminal and
restaurant were operated as an integral part of bus carrier's transportation service
for interstate passengers, Negro bus passenger on interstate trip had a federal
right as an interstate passenger to be served without discrimination by restaurant
(a) this linked race to Congressional power via interstate commerce
8. United States v. Lopez, 514 U.S. 549 (1995)
D was convicted in the District Court of possessing firearm in school zone in violation
of Gun-Free School Zones Act, and he appealed. 5th Cir. reversed and remanded with
directions, and government petitioned for certiorari review.
Before the Supreme Court: C.J. Rehnquist, held that Gun-Free School Zones Act,
making it federal offense for any individual knowingly to possess firearm at place that
individual knows or has reasonable cause to believe is school zone, exceeded Congress'
commerce clause authority, since possession of gun in local school zone was not
economic activity that substantially affected interstate commerce. Affirmed.
a. Court summarized the categories of activities the Congress could regulate under
the Commerce Clause:
(1) channels of interstate commerce
(2) instrumentalities of interstate commerce (even if the threat was from
intrastate activities)
(3) activities having a substantial relationship to interstate commerce
b. Court commented that Wickard was "perhaps the most far reaching example
of Commerce Clause authority over intrastate activity. . . ."
(1) Bryer's dissent - there are things that cannot be regulated under Wickard
e.g. family law, etc. - but why not, since family dysfunction can ultimately
have an economic affect on interstate commerce
(2) Rehnquist's majority - wheat you use at home has an effect on wheat commerce,
but gun-toting in a school zone has no effect on commerce - the criminal
statute in question has nothing to do with "commerce" or any other economic
enterprise - statute is no part of a larger economic regulatory activity
- no requisite nexus with interstate commerce, and without some conncection,
Congress cannot "regulate" the "mere possession" of firearms
(a) also no express congressional findings to connect to commerce
(b) historically the states have authority in schools, etc., etc.
(3) government argued that guns in a school zone affected interstate commerce by
(a) raising insurance costs, spread throughout the population
(b) reduced willingness of individuals to travel within the country (unsafe)
(4) Lopez doctrine - basically they won't grant a general police power to the U.S.
government of the sort retained by the states
c. J. Thomas (concurring) - specifically wants to rethink the argument so as to not
to give Congress/U.S. any police power, which it has none
d. J. Stevens (dissenting) - guns can be articles of commerce and also be used to restrain
commerce, so Congress should be able. . . .
e. Note 2, 246 - Federal antichurch burning statutes had a hard time under Lopez
9. United States v. Antonio J. Morrison, --- U.S. ---, (2000)
Student at Va. Tech was attacked and raped by male students, causing emotional
distress, etc., etc. She filed complaint under School's Sexual Assault Policy, and
D Morrison was found guilty by the school and suspended for two semesters, but
the School's senior VP and provost set aside the punishment. Girl then sued school
and attacker for violation of Title IX of the Education Amendments of 1972, and
School defended on the grounds that it was unconstitutional. U.S. appealed the charge
of unconstitutionality. [§ 13981 of the Act was part of the Violence Against Women
Act of 1994, which allows liability for anyone who commits a gender-motivated crime
against women - an "animus based on the victim's gender."]
Before the Supreme Court: C.J. Rehnquist argued that every law enacted by Congress
must be based on one or more of the enumerated powers. Court cited Lopez to show
that the Violence Against Women Act was unconstitutional. The Court refused to allow
Congress to regulate noneconomic, violent criminal conduct based solely on the
conduct's aggregate effect on interstate commerce. The Constitution requires a distiction
between truly national and local problems.
a. reasons that seem to be most important here:
(1) sexual violence is a criminal activity which is not a commercial activity (like
Lopez and guns)
(2) jurisdictional element missing - no interstate connection, all local
(3) congressional findings were not enough for the court to find it constitutional
(4) obliteration of distinction between national and local authority - state's police
powers traditionally handle this type of criminal activity - no national necessity
for Congress to horn in here because of a lack of state law (or any problem with
states not able to carry out the burden/coordinate due to the nature of the crime,
e.g. terrorism)

Prof. pearl: Rehnquist reads precedents extremely precisely, like a Legal Research &
Writing teacher from hell, and very acurately distills their meaning.
- Some precedents are pretty sloppy, and Rehnquist distills them to their
essence to find the doctrine of the case.

b. Rehnquist's motive for reading the precedents carefully is, Prof. thinks, that he
wants to hold Congress to it's enumerated powers, whereas the Warren and
Burger courts allowed Congress to do whatever it wanted
C. Other Article I Powers:
1. Taxing and Spending: Article I, § 8, cl. 1 power
a. taxing - Marshall: "The power to tax is the power to destroy."
b. spending -
c. "General Welfare Clause" modifies the taxing and spending clause - if there was a
stand-alone General Welfare Clause, the Congress would have carte blanche to do
almost anything it wants, if the case can be made for the "general welfare"
2. South Dakota v. Elizabeth H. Dole, 483 U.S. 203 (1987) Text, p. 257
State of S.D. had a drinking age of 19 for beer (3.2% EtOH). Congress passed a 1984
bill to withhold (through SecTrans) a percentage of highway funds from states which
had a drinking age limit less than 21. S.D. sued the U.S. (through the SecTrans, Dole)
seeking declaratory judgment that the Act violated the 21st Amendment.
Before the Supreme Court: J. Rehnquist wrote that pursuant to Art. I § 8, cl.1, Congress
could attach conditions on the receipt of federal funds, in particular to further broad
policy objective. Powers not within the enumerated powers may be furthered by use
of conditional grant of federal spending, subject to several general restrictions. The
majority held that this application of the spending power was constitutional.
a. things to consider regarding restrictions - federal spending:
(1) must be in pursuit of the "general welfare" - and Congress is in a better position
than the courts to decide what's within the general welfare (it has better fact-
finding powers, feed-back from the people, etc.)
(2) must be unambiguous - allow the states to make knowing choice (as to whether
to take the money or not - it's a voluntary thing, so they need to know the plan)
(3) may be illegitimate if it's not related to a particular national project or program
(4) may be affected by other independent constitutional bar - "Unconstitutional
Conditions Doctrine"
b. in this case, S.D. did not argue against the first 3 considerations, but the 4th - in
particular, if the 21st Amendment independently barred the federal government
from forcing the States in this way
(1) Amend. XXI, § 2 - The transportation or importation into any State, Territory,
or possession of the United States for delivery or use thereof intoxicating
liquors, in violation of the laws thereof, is hereby prohibited.
(a) directly restrict's Congress' commerce power as to one commodity, alcohol
(b) so the indirect control via funding is the question in this case - majority says
it is okay to do this
(2) Court argued that prior jurisprudence dictates that an "independent constitutional
bar" means that Congress cannot force the States to do anything which is in
itself unconstitutional, not that Congress cannot indirectly achieve through
conditional spending that which it cannot achieve directly
(a) this may violate constitutional governing authorities
(b) but this does not violate constitutional rights
(3) here, if S.D. raised its drinking age to 21 (in response to Congress carrot)
it would not be an unconstitutional infringement on anyone
c. S.D. also argued coersion - the Court reasoned that losing only 5% of federal
highway money did not rise to the level of coersion (or "pressure turn[ing] to
compulsion") - this was "mild encouragement" for the States to raise the drinking
age to 21, but it's still the state's choice

N.B.: It would be a good test question to argue what level of loss would be coercive.

d. J. Brennan - dissenting:
(1) argued that 21st Amendment gives the powers to regulate alcohol to the States
(2) question is, does the wording of the 21st Amendment only allow prohibition
of alcohol into the States, or does it actually give permissory power to the
States - i.e. a State can make itself dryer, but can it make itself wetter (in
opposition to federal law, e.g.)
e. J. O'Connor - dissenting:
(1) argued that delineated items 1, 2, and (arguendo) 4 were met, but that a
national minimum drinking age was not reasonably related to the purpose for
which the Congress was appropriating the money in question (highway funds)
(2) interstate highway construction - if drunken drivers are the issue, to get safe
use of roads, why limit it to teenagers, and not just everyone - too "attenuated
or tangential [a] relationship" to the aim of highway safety
(a) couldn't the federal government condition the funds on moving the state
capital close to the highway, to facilitate accessibility to local government
(b) couldn't the federal government condition the funds on moving the state
capital away, to keep from having too much traffic on the new highway
(3) O'Connor feels that the line should be drawn at whether the spending requirement
is a condition on the grant, or a regulation - namely, does the requirement
specify how the money is to be spent to effectuate the grant, or is it not really
related to the actual achievement of the grant
(a) conditions are okay pretty much anytime - we can tell you how to spend it
(b) regulations are okay only when they are within Congress delegated
regulatory powers - e.g. can't tell States how to work their own police power
3. Treaty and War Powers:
a. difference between making war and declaring war
(1) declare war - Congress' Article I power - but Congress can't make war
(a) Article I, § 8, cl. 12 - no appropriations of a Army for over 2 years
(b) Congress can cut the money to the Army off at 2 years and undercut the
President, if they wanted to
(c) in 1941, U.S. declared war on the Japanese Empire
(d) shortly thereafter, Hitler declared war on us. . . . then we declared war back
(e) Declaration of War - sort of like a Joint-Resolution of Congress or a
declaration of Congress which declares war - but is there really any particular
formality for "declaring" war, or can Congress' continued funding of the
hostilities (e.g. Viet Nam) be considered a tacit declaration of war
- formalism v. instrumentalism - do you need a document, or just actions
(2) make war - Presidential power, Article II - executive authority argument is that
the President can "make war" for reasons of national security, etc.
D. Power to enforce reconstruction amendments:
1. Enforcement Clause - "enforce by appropriate legislation":
a. contained in 13th, 14th, 15th, 19th, 24th and 26th Amendments
b. scope of the enforcement powers is the question
2. "The Civil Rights Cases", 109 U.S. 3 (1883) Text, p. 264
A number of civil rights cases dealing with blacks and various disadvantages and
mistreatments were consolidated and used as a jumping off point for discussion of
the issue of the scope of enforcement power of Congress of the 14th Amendment.
Specifically, Act Cong. Mar.1, 1875, 18 Stat. 335 was in issue (all persons shall be
entitled to full and equal enjoyment of the accomodations and advantages of inns,
public conveyances, etc., and imposing penalties upon any person who shall violate
said act).
Before the Supreme Court: J. Bradley held that the Act was unconstitutional, since
the 14th Amendment prohibits State action, not private action. Therefore, the U.S.
Congress has no basis (in the 14th Amendment) for interfering in private action, only
action of State law. So the Congress can act under the 14th Amendment to prohibit
only State action, not private wrongs. Therefore, the Act is unconstitutional.
a. The Civil Rights Act of 1875 was one of the last reconstruction laws that came
out after the Civil War - it's very close to the Civil Rights Act of 1964. . . .
b. U.S. Const. Amendment XXIV, § 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.
. . . § 5. The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
(1) Prof. thinks that since the 1st sentence doesn't "require" state action, then
the argument should have been made that state action did not disqualify the
(2) J. Harlan (dissent) - claims that state action is the inaction of allowing the
discrimination, and because the inns and common carriers are agents of the
state based upon their licensing (i.e. not completely private - they're regulated
by the state to be public accomodation)
(a) Harlan also notes that Congress could use the Commerce Clause and the
Necessary and Proper Clause to pass the Civil Rights Act in another way
(broad hint for Congress - but by that time, after the election of 1876, the
Democrats in the South had gotten reelected and times were different and
"negro-phobia" was back in the North, too, according to Prof. - so the
Act would have been repealed by Congress anyway if it was constitutional)
c. Jim Crow Laws - relegating blacks to the back of the bus, etc., are state action,
so how did those still work after the Civil Rights Cases - separate but equal lets
people be treated equally (same benefits), but they're just kept separate, so it
doesn't offend the 14th Amendment by unequal treatment under the law
3. Truax v. Corrigan, --- U.S. --- (1921), overruled on other grounds . . .
Labor law, later superceded by statute - all classes and all persons need to be protected,
and government omissions are the same as government action. If the government
fails to protect the rights of citizens, it violates the Truax Doctrine.
a. this would support the state sanction idea (state sanctions the private action by its
own inaction)
4. Plessy v. Ferguson, 163 U.S. 537 ( 1896) Text, p. 645
Separate but equal doctrine from a La. case where the La. law required separate but equal
accomodations on railroads. Octaroon plaintiff was kicked out of first class because it
was a white car, etc. He sued, and the S. Ct. held that the 14th Amendment required
"equal," and traditionally "separate but equal" was okay with most courts. Court felt that
the separation of the "races" was within the police powers of the states, so long as the
accomodations were equal to satisfy the equality provision of the 14th Amendment.
a. J. Harlan dissented, saying that it wasn't the provice of government to know race
of everyone and tailor the laws accordingly - he basically felt that the law should
be color blind - separate and equal is a guise under which blacks could be separated
out from whites
5. Katzenbach v. Morgan, (1966)
§ 4(e) of the Voting Rights Act of 1965 made it unlawful to prohibit certain educated
Puerto Ricans from voting if they didn't speak or read English. The voters of New York
sued because the Act overruled the literacy test that N.Y. had.
Before the Supreme Court: J. Brennan held that the statute was constitutional, but that
literacy tests were not prohibited by the 14th Amendment

Prof. pearl: The Supreme Court is not the friend of the working man. The
Congress is the friend . . . .

a. Congress decided that the illiteracy tests were interfering the constitutional rights
to life, libery, job
b. Oregon v. Mitchell, 400 U.S. 112 (1970) - U.S. lowered the voting age in State
and Federal elections (from 21 to 18) - Court held the change constitutional
for federal elections, but not state - J. Black's decisive opinion listed three
limitations on § 5 enforcement power, and distinguished Oregon from Katzenbach
since Oregon didn't deal with specific rights guaranteed in Katzenbach (racial
issues), and Katzenbach fell more in line with the original understanding of the
Framers of the 14th Amendment
(1) no legislative repeal of the Constitution
(2) enforcement power not intended to "strip the States of their power to govern
themselves or to convert our national government of enumerated powers
into a central government of unrestrained authority"
(3) "appropriate legislation" cannot undercut Bill of Rights or personal equality
and freedom from discrimination
6. City of Boerne v. P.F. Flores, 521 U.S. 507 (1997)
Catholic archdiocese wanted to remodel/expand historic church, but City Council
would not grant permission (under historic landmarks ordinance). Church sued on
multiple grounds, inter alia, that this was infringement on Religious Freedom and
Restoration Act of 1993. Appeal reached the S. Ct. on that issue after having been
ruled in the App. Ct. to be constitutional. The government's defense of the Act was,
that it was justified under the 14th Amendment's enforcement clause, necessary to
protect the freedom exercise of religion.
Before the Supreme Court: J. Kennedy initially considered the remedial nature of
the 14th Amendment and agreed that the Enforcement Clause (§ 5 of Amendment
XXIV) was applicable to Amendment I's Free Exercise Clause, but the power only
extended to "enforcing," not to decree the substance of the Amendment (i.e. the
law, the interpretation of which is left to the Court - Marbury v. Madison).
a. Religious Freedom & Restoration Act of 1993 - originated when Congress was
unhappy with Court's discarding the "compelling interest test" of Sherbert v.
Verner, 374 U.S. 398 (1963) (which balanced the substantial burden on a religious
practice with the compelling government interest entertained by a law)
(1) Congress legislatively restored the "compelling interest test" which had been
judicially overruled in Employment Div., Dept. of Human Resources of Oregon
v. Smith, 494 U.S. 872 (1990) (which dimissed the Free Exercise Clause claim
of the Native American Church which challenged the State of Oregon's law
generally criminalizing peyote - Court did not want to create "constitutional
right to ignore neutral laws of general applicability" and was not happy to have
to delve into religions and determine the centrality of a specific religious
practice or an individual's particular interpretations of their beliefs)
(2) RFRA basically charged the government with the burden to demonstrate a
compelling interest before substantially burdening a religious practice
(3) Congress relied on 14th Amendment enforcement power to pass RFRA, but
the Court ruled that amend. XXIV was remedial, not substantive, and the
Court alone was able to say what the substantive law was - i.e. the Court was
the one who could interpret the laws/Constitution, not Congress
b. U.S. Const. amend. I - Congress shall make no law respecting an establishment
of religions, or prohibiting the free exercise thereof. . . .
(1) 14th Amendment Due Process Clause was held to encompass all the other
amendments - due process of law, and those were the laws (found to do so by
the S. Ct.)
c. one distiguishing feature between Katzenbach and Flores was the fact that there
were lots of legislative findings published regarding voting rights of Puerto Ricans,
but there was no great mass of congressional fact-finding about Flores in the
Congressional Record
d. Congruence & Proportionality Test - means used have to be congruent with the
ends to be achieved (here, the 14th Amendment rights), and the appropriateness
of the remedial measured must be considered in light of the evil presented (and
here, there was even-handed application, all religions the same)

N.B.: TEST QUESTION: If Federal Government passes a Federal RFRA which applies
only to the Federal Government - is that constitutional? (Note1, p. 293)

7. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)
P employees filed separate suits under the Age Discrimination in Employment Act of
1967 (ADEA) alleging that respondent state employers discriminated against Ps on the
basis of age. District courts made determinations as to Ds' motions to dismiss on the
basis of U.S. Const. amend. XI immunity. App. Ct. consolidated the appeals and ruled
in favor of Ds.
Before the Supreme Court: J. O'Connor held that there was no congruence (via the
Congruence & Proportionality Test) with the 14th Amendment and the remedy was
way out of proportion to the evil that they were trying to address. Ct. determined that
the ADEA contained a clear statement of Congress' intent to abrogate the States'
immunity. However, in light of the indiscriminate scope of the ADEA's substantive
requirements, and the lack of evidence of widespread and unconstitutional age
discrimination by the States, the ADEA was not a valid exercise of Congress' power
under U.S. Const. amend. XIV, § 5. The ADEA's purported abrogation of the States'
sovereign immunity was accordingly invalid.
a. S. Ct. decided the ADEA's abrogation of the States' 11th Amendment immunity
was not a power under § 5 of the 14th Amendment
b. Suppl., p. 12: Does the ADA pass the Congruence & Proportionality Test - only
if disability is distinguishable from age, and it's held not to be (neither is not a special
class under the 14th Amendment) by the same reasoning
c. Congruence & Proportionality Test are weapon for the Court to restrict Congress'
powers if the situation is right

IV. Federalism's Limits on Congress & States:
A. Limits on Congress:
1. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) Text, p. 304
D, a public mass transit authority that received substantial federal funding, brought
action for declaratory judgment to determine whether it was entitled to Const. amend.
X immunity from the minimum wage and overtime provisions of the Fair Labor
Standards Act (FLSA), 52 Stat. 1060, 1067 (1938). The lower court held that municipal
ownership and operation of the transit system was a traditional governmental function
and immune from wage and overtime standards. On appeal, P solicitor general argued
that the court erred in extending immunity to D.
Before the Supreme Court: S. Ct. held that it was not immune from the minimum wage
and overtime standards. The Court overruled the previous determination that the
Commerce Clause does not empower Congress to enforce minimum-wage and overtime
provisions of the FLSA because the provisions of FLSA did not destroy state sovereign
immunity or violate any constitutional provision. The court reversed and remanded.
a. Nat'l League of Cities v. Usery, 426 U.S. 833 (1976) - held that four conditions
needed to be satisfied for a state activity to be immune from federal regulation
under the Commerce Clause:
(1) federal statutes must regulate the "States as States"
(2) statue must address matters indisputably attributes of state sovereignty
(3) state compliance with federal obligation must directly impair State's ability to
structure integral operations in areas of "traditional governmental functions"
- this was the area that the case left unclear, and the district court in Garcia
decided this was such a function - the App. Ct. disagreed
(4) the relation of state and federal interests must not be such that the nature of
the federal interest justifies state submission
b. Holding: In affording SAMTA employees the protection of the wage and hour
provisions of the FLSA, Congress contravened no affirmative limit on its power
under the Commerce Clause
(1) attempt to draw the boundaries of state regulatory immunity in terms of
"traditional governmental functions" is judicially unworkable and is also
inconsistent with established principles of federalism and, indeed, with those
very federalism principles on which National League of Cities purported to rest
- that case, accordingly, is overruled
(2) nothing in the overtime and minimum-wage requirements of the FLSA, as
applied to SAMTA, that is destructive of state sovereignty or violative of any
constitutional provision - States' continued role in the federal system is primarily
guaranteed not by any externally imposed limits on the commerce power, but by
the structure of the Federal Government itself - in these cases, the political
process effectively protected that role
c. why can the courts handle 1st Amendment questions or separation of powers
questions but not federalism (& 10th Amendment) questions (according to J.
(1) federalism (v. states rights) preserves individual liberties by vertical
separation of powers
(2) political value of separation of federal and state power - Federalist #84
THIS MAKES NO SENSE TO ME... Gotta look closer
d. J. O'Connor (dissent) - argued that the decision allowed the Commerce Clause
to be an excuse for Congress to completely subjugate the State - we need the
judicial review of congressional action to keep things on the up and up
e. the rise of the political party system has made federal representatives and
senators more susceptible to national SIGs and national pressures, as opposed
to local influence from the constituency - this is more important than the passage
of the 17 Amendment, because money (reelection support) is very important
to congressmen and senators
2. New York v. United States, 505 U.S. 144 (1992) Text, p. 315
Congress, in effort to combat burgeoning radioactive waste disposal problem, passed
Low-Level Radioactive Waste Policy Amendments Act of 1985, which included
monetary incentives, access incentives, and a take title provision which offered states
option of taking title to and possession of low level radioactive waste generated within
their borders and assuming liability for damages waste generators suffer due to states'
tardiness. New York sued, claiming Act violated U.S. Const. amend. X.
Before the Supreme Court: J. O'Connor declared Act unconstitutional in part, holding
that (a) monetary incentives constituted permissible exercises of congressional power
under the commerce, taxing, and spending clauses of the federal constitution; (b) access
incentives represented permissible conditional exercise of Congress' commerce power;
but (c) take title clause exceeded U.S. Const. amend. X restrictions since the take title
incentive was not an exercise of congressional power enumerated in the Constitution.
Affirmed in part and reversed in part; monetary and access incentives were permissible
exercises of Congressional power under the commerce, tax, and spending clauses, the
take title provision violated U.S. Const. amend. X since it was coercive.
a. in ascertaining whether any of the challenged provisions oversteps the boundary
between federal and state power, the Court must determine whether it is authorized
by the affirmative grants to Congress contained in Article I's Commerce and
Spending Clauses or whether it invades the province of state sovereignty reserved
by the Tenth Amendment
(1) Article I and the Tenth Amendment are mirror images - if a power is given to
Congress, it's not for the States, and if the power is NOT given to Congress, it's
reserved for the States
(2) take-title clause was impermissible because Congress attempted to use (or
commandeer) the States for federal purposes
(3) having federal bureaucrats tell States to perform, there is no political
accountability to the people at the local level
b. although regulation of the interstate market in the disposal of low level radioactive
waste is well within Congress' Commerce Clause authority, and Congress could, if it
wished, pre-empt the States via the Supremacy Clause, a review of this Court's
decisions, and the history of the Constitutional Convention, demonstrates that
Congress may not commandeer the States' legislative processes by directly
compelling them to enact and enforce a federal regulatory program, but must
exercise legislative authority directly upon individuals
c. Act's take title provision offers the States a "choice" between the two
unconstitutionally coercive alternatives - either accepting ownership of waste or
regulating according to Congress' instructions - the provision lies outside Congress'
enumerated powers and is inconsistent with the Tenth Amendment - on the one
hand, either forcing the transfer of waste from generators to the States or requiring
the States to become liable for the generators' damages would "commandeer" States
into the service of federal regulatory purposes - on the other hand, requiring the
States to regulate pursuant to Congress' direction would present a simple
unconstitutional command to implement legislation enacted by Congress - the
States' "choice" is no choice at all
d. J. White (dissent) - background of Act was important - the States themselves were
the ones to propose the statute to the Congress (via the Governor's convention)
and then turned around and sued about it
(1) so N.Y. (and other states) agreed to the interstate compact - so should they be
estopped from protesting?
- O'Connor argues that the Constitution cannot be overturned simply by the
agreement of the States, since the Constitution gives enumerated powers and
separation of powers, etc. to protect individual rights, so it follows that the
States cannot waive the constitutional rights, only individuals can
- therefore, N.Y. (and the other States) can't waive or agree with an
enlargement of congressional power
e. does New York overrule or undermine Garcia?
- O'Connor and New York point out (again) that the judiciary gets to say "what
the law is"
- the idea in Garcia that the Court shouldn't get in between constitutional
arguments between the States and the federal government is basically overruled
or undercut, in practice
3. Printz v. United States, 521 U.S. 898 (1997) Text, p. 327
Issue here was whether certain interim provisions of the Brady Handgun Violence
Prevention Act, commanding state and local law enforcement officials to conduct
background checks on prospective handgun purchasers and to perform other similar
tasks, violate the Constitution.
Before the Supreme Court: J. Scalia argued that the commandeering of the States'
police ("dragooning") was improper, similar to New York v. United States, and allowed
the Congress to take credit for the solution but the States get the burden of the cost
and use of state police, etc. Congress cannot compel the States to enact or enforce
a federal regulatory program. Congress can make laws directing individuals, but it
cannot make laws to make the States make laws to regulate individuals.
a. dual sovereignty theory - the two sovereigns, federal and state, don't operate on
each other, but operate at the same time on the same people
b. Fourteenth Amendment violated the dual sovereignty idea by § 5, giving Congress
the "power" over the States, which was termed "radical federalism"
4. Alden v. Maine, 527 U.S. 706 (1999) Text, p. 344
Probation officers sued Maine for violating overtime provisions of Fair Labor
Standards Act of 1938 (FLSA). During the pendency of the case, the Court decided
the Seminole case and held that Congress could not abrogate States' sovereign immunity
absent States' consent to be sued (in federal court). Lower courts dismissed this suit on
that basis and Ps appealed.
Before the Supreme Court: J. Kennedy opined that 11th Amendment immunity was a
misnomer, and that the immunity to suit was a fundamental aspect of sovereignty that
existed even before the ratification of the Constitution. Court held that Article I
of the Constitution did not allow the federal government to abrogate a State's immunity
to suit in state courts (as distinct from Seminole case, which dealt with federal courts).
a. 11th Amendment doesn't actually govern this case - Kennedy made lengthy
historic and constitutional argument that the sovereignty of the States prohibited
suit against them (without their consent), since the Framers historically believed
that sovereigns couldn't be sued without their consent
b. Constitution empowers in operation a NATIONAL government and in extent a
FEDERAL government:
(1) national - any power the federal government has extends to all people (as
noted in Federalist #39, the House of Representatives is elected by the people,
hence it is national and the Constitution applies to all people, hence it is
(2) federal - the power the federal government has is circumscribed - enumerated -
and everything else is left to the States (or the people) (as noted in Federalist
#39, the Senate is selected by the States (at least it used to be), hence it is
federal, and likewise the Constitution was ratified by an act of the States, hence
a federal act)

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

c. federal regulations can be enforced on the States by things which do not impinge
on the state treasuries (i.e. citizens cannot sue for state money or :
(1) the U.S. government can sue a state to enforce statutes
(2) Ex Parte Young action to enjoin a State from unlawful action
d. sovereign immunity ("11th Amendment immunity") does not allow suit in equity
against a State or arm of a State, but you can sue municipalities, etc. which are not
arms of the State
(1) cities with "home rule charters" are liable to suit, since they're not arms of the
(2) if a city were an arm of the state, it would be immune
g. J. Souter's dissent - there wasn't much of a sovereignty debate before the
Constitution was ratified, because people thought sovereignty existed in the people,
not in the States/government (because they were getting away from the concept of
a sovereign crown that taxed them unfairly, etc., etc.)
f. Note 5, p. 370:
(1) if the 11th Amendment were repealed, there would be little effect, since,
after the argument in Alden, state sovereignty was still an issue and the
same arguments could be made - so it wouldn't change anything
(2) if there was an Amendment forbidding immunity for the States as a defense
against any action based on a federal statute or treaty of the U.S. - this
would allow the States to be sued under federal statutes and treaties, and would
therefore subject the States' treasuries to payment for federal violations
5. Fed. MaritimeComm. v. South Carolina State Ports Auth.,
122 S.Ct. 1894 (2002) Suppl., p. 25
Casino cruise ship complained to the commission that the agency's enforcement of its
policy of denying berths to gambling vessels constituted a violation of the Shipping Act.
The agency asserted state sovereign immunity, but the commission contended that such
immunity from judicial actions did not apply to its administrative proceedings.
Before the Supreme Court: S. Ct. held that state sovereign immunity barred the
commission from adjudicating the complaint filed by the non-governmental vessel
owner against the state agency which had not consented to be subject to the proceedings,
even in an "administrative" action before an administrative judge. Historically, states
were not subject to private suits in administrative adjudications when the United States
Constitution was adopted, and states were thus presumptively immune from such actions.
Further, the overwhelming similarities between the commission's proceedings and civil
litigation indicated that there was no basis for distinguishing between the actions for
purposes of sovereign immunity. Also, state immunity did not preclude the federal
government, including the commission, from seeking administrative or judicial relief
against the agency for violating the Shipping Act.
6. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) Text, p. 371
Arkansas voted to amend the state constitution to impose term limits upon the
individuals it elected to Congress. Ark. Const. amend. LXXIII limited persons seeking
office in the House of Representatives to three terms and in the Senate to two terms.
Respondent challenged the amendment and the trial court held that it was
unconstitutional. The Ark. S. Ct. upheld that ruling stating that states have no authority
to change, add to, diminish the requirements of the Qualifications Clauses, U.S. Const.
Art. I, § 2, Art. I, § 3, cl. 7. Arkansas appealed.
Before the Supreme Court: J. Stevens held that the power granted to each House of
Congress to judge the "Qualifications of its own Members," Art. I, § 5, cl. 1, does not
include the power to alter or add to the qualifications set forth in the Constitution's text.
Also, Constitution prohibits States from imposing congressional qualifications additional
to those specifically enumerated in its text. A state congressional term limits measure is
unconstitutional when it has the likely effect of handicapping a class of candidates and
has the sole purpose of creating additional qualifications indirectly. State imposition of
term limits for congressional service would effect such a fundamental change in the
constitutional framework that it must come through a constitutional amendment
properly passed under the procedures set forth in Article V. Absent such an amendment,
allowing individual States to craft their own congressional qualifications would erode the
structure designed by the Framers to form a "more perfect Union." Ark. S. Ct. affirmed.
a. Prof.: ". . . a vastly confused and confusing opinion."
b. case stands for a very narrow reading of Art. I, § 4, cl. 1
c. majority and dissent argue over Powell v. McCormack, 395 U.S. 486 (1969) (where
House tried not to seat Adam Clayton Powell):
(1) majority decided that Powell having forbid the House under Art. I, § 5 to limit
its own members means the same for the States
(2) dissent argued that Powell doesn't limit States, only the House
d. argument over the 10th Amendment and its applicability:
(1) majority argued that 10th Amendment is no basis for reserve power to States
since the specific power to change qualifications is not specifically enumerated
in the Constitution so it doesn't exist, i.e. you can't reserve powers that weren't
ever used by you or even thought of yet
(2) dissent argues that power comes from the people and if its not enumerated for
the federal government, it's reserved for the people of the States
- 10th Amendment isn't about reserving specific powers, but all powers that
exist except for specifcally enumerated powers given to the national government
e. argument about silence of preratification debates on Qualifications Clauses:
(1) majority argues the Qualifications Clauses are a ceiling
(2) dissent argues the Qualifications Clauses are a floor
f. egalitarian principles of Powell:
(1) majority says everyone should be able to be elected - don't exclude anyone
(2) dissent argues that this would mean a State can't keep a mental incompetent
or prisoner out of office - also other protections (Equal Protection Clauses)
exists, and the Qualifications Clauses are restrictive anyway (age, etc.)
g. Something not said in the opinion:
(1) Art. I, § 2, cl. 2 specifies (by silence) at large elections - but every State has
added district requirements - so that restriction has been added by everyone
but no one noticed that!!!!!
7. Preemption:
a. preemption is a corollary to federalism
b. preemption arises by congressional action, under some innumerated power, and if
a federal statute conflicts with a State statute/law, the Supremacy Clause mandates
the federal statute to preempt or trump the State law
c. litigation usually deals with whether two statutes in question are conflicting, or
whether Congress has, either express or impliedly, decided to enter the field
(1) Congress occasionally expresses its intent to preempt State law
(2) sometimes, there is a "savings clause" which saves some action for State
d. preemption cases are usually matters of statutory interpretation - since these
opinions deal with congressional intent, it's always a possibility that Congress will
take offense and come back and pass a specific law to overrule the Court's decision
8. Geier v. Amer. Honda Motor Co., 529 U.S. 861 (2000) Text, p. 388
Petitioner driver collided with a tree and was seriously injured. Petitioners, the driver
and her parents, sued respondent car manufacturer, claiming that respondent had
designed its car negligently and defectively because it lacked a driver's side airbag.
District court dismissed the suit, and the App. Ct. affirmed.
Before the Supreme Court: J. Breyer found that the National Traffic and Motor Vehicle
Safety Act of 1966 express preemption provision did not preempt the common-law
"no airbag" action because the language permitted a narrow reading that excluded
common-law actions. However, the court found that petitioners' suit conflicted with
Federal Motor Vehicle Safety Standard (FMVSS) 208, which sought a gradually
developing mix of alternative passive restraint devices for safety-related reasons. The
rule of state tort law for which petitioners argued would have stood as an obstacle to
the accomplishment of that objective, and the statute foresaw the application of
ordinary principles of preemption in cases of actual conflict. Hence, petitioners' action
was pre-empted.
a. Geier is the Court's most recent, thorought treatment of preemption
b. J. Stevens (dissent) - points out that:
(1) federal "regulation" preempting the State action is not a congressional law or
Executive order, but the interpretation of a comment accompanying an interim
(2) actual federal administrative aim would not be frustrated by the State's tort action
c. Pennsylvania v. Nelson gave a three-part test to determine preemption:
(1) Court should check to see the pervasiveness of the federal regulatory scheme -
the more pervasive, the more obvious is Congress' intent to preempt
(2) does the situation call for National uniformity?
(3) is there practically-speaking any conflict between the federal and State laws
d. Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288 (2000) found that there
was no presumption of preemption but that

V. Judicial Protection of Interstate Commerce
A. "Dormant" Commerce Clause:
1. Note 1, p. 404: Commerce Clause only talks about Congress' power - why should the
Supreme Court work in this area???
2. judicial activism:
a. there may be too few state citizens coming forward to make the state congress
take action against the problem, therefore some federal intervention may be
b. the state may before running the system so that individuals can't avail themselves
of their "day in court" in the state's courts
3. Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829) p. 403
Owners of ship sued the State for building a dam across a navigable river/creek and
Delaware courts upheld D's claim. They appealed to the S. Ct.
Before the Supreme Court: C.J. Marshall held that making dams in local little creeks
was a matter of State interest versus the State's citizens, unless Congress had made a
law which conflicted with the dam regulation. Since Congress had not made such a law,
the matter was a local one within the purview of the State's courts, etc. It was not a
matter relating to interstate commerce or commerce between nations.
a. this was an uncharacteristically short opinion, perhaps because J. Marshall thought
it was no-brainer
b. Court wanted to not stomp on States' privgeleges - distinguishes this case from
Gibbons to let the state of the hook, considers it a dam statute versus a waterway
4. Philadelphia v. New Jersey, 437 U.S. 617 (1978) Text, p. 405
Appeal was taken from a judgment of the N.J. S. Ct. upholding the constitutionality of
N.J. statute prohibiting the importation of most "solid or liquid waste which originated
or was collected outside the territorial limits of the State."
Before the Supreme Court: J. Stewart, held that the statute violated Commerce Clause.
(a) All objects of interstate trade merit Commerce Clause protection and none is
excluded from the definition of "commerce" at the outset; hence, contrary to the
suggestion of the court below, there can be no doubt that the banning of "valueless"
out-of-state wastes by ch. 363 implicates constitutional protection.
(b) The crucial inquiry here must be directed to determining whether ch. 363 is basically
an economic protectionist measure, and thus virtually per se invalid, or a law directed
at legitimate local concerns that has only incidental effects on interstate commerce.
(c) Since the evil of protectionism can reside in legislative means as well as legislative
ends, it is immaterial whether the legislative purpose of ch. 363 is to protect N.J.'s
environment or its economy, for whatever the purpose, it may not be accomplished
by discriminating against articles of commerce coming from outside the State unless
there is some reason, apart from their origin, to treat them differently. Both on its
face and in its plain effect ch. 363 violates this principle of nondiscrimination. A
State may not attempt to isolate itself from a problem common to many by erecting
a barrier against the movement of interstate trade by imposing on out-of-state
commercial interests the full burden of conserving N.J.'s remaining landfill space.
(d) N.J. statute cannot be likened to a quarantine law which bans importation of articles
of commerce because of their innate harmfulness and not because of their origin.
Though N.J. concedes that out-of-state waste is no different from domestic waste, it
has banned the former while leaving its landfill sites open to the latter, thus trying to
saddle those outside the State with the entire burden of slowing the flow of wastes
into N.J.'s remaining landfill sites.
a. Note 1, p. 412: who loses and who wins here - no clear winners economically:
(1) winners: N.J. citizens win, because they lower garbage costs (less demand for
space); out-of-state garbage men win (have to do more work); etc.
(2) losers: out-of-state people lose (need to find more garbage dumps); in-state
garbage men lose (less business coming their way); etc.
(3) so why does the federal government get into this? isolationism is the problem
they go after, not the balance of the economic flow or benefit
- statute is facially discriminatory
b. J. Rehnquist (dissent) - sees it as a safety measure, not an economic problem
(1) N.J. is protecting its environment and health
(2) sees this as the same thing as the various cases of quarantine allowed by Court
(3) compelling reason may overcome the facially discriminatory scheme
5. Kassell v. Consol. Freightways Corp. of Delaware, 450 U.S. 662 (1981)
Motor carrier brought action challenging Iowa law barring use of trucks longer than 60
feet on Iowa's interstate highways (they used double 65s commonly). District Court
entered order granting relief requested, and appeal was taken. App. Ct. affirmed.
Before the Supreme Court: J. Powell, held that: (1) the safety interest offered by Iowa to
justify the statute was insufficient to overcome the burden upon interstate commerce;
(2) the motor carrier demonstrated that the Iowa law substantially burdened interstate
commerce by showing that trucking companies that wished to continue to use 65-foot
doubles must route them around Iowa, or detach the trailers or the doubles and ship them
through separately and that, in addition to increasing the costs of the trucking
companies, the Iowa law could aggravate, rather than ameliorate, the problem of highway
accidents; and (3) the Iowa statute imposed a disproportionate burden on out-of-state
residents and businesses, and, therefore, the statute was not to be accorded the "special
deference" traditionally accorded to state highway safety regulations in that the statute
contained exemptions which procured to Iowans many of the benefits of large trucks
while shunting to neighboring states many of the costs associated with their use.
Affirmed (i.e. Iowa law is unconstitutional, even though facially not discriminatory).
a. Commerce Clause permits Congress to legislate when it perceives that national
welfare is not furthered by independent actions of states - Commerce Clause itself is
limitation upon state power even without congressional implementation
b. Commerce Clause requires that some aspect of trade generally must remain free from
interference by states; when state ventures excessively into regulation of these
aspects of commerce, it trespasses upon national interests, and courts will hold state
regulation invalid under commerce clause alone
c. in absence of congressional action to set uniform standards, some burdens associated
with state safety regulations must be tolerated - but where state's safety interest is
found to be illusory, and if regulations impair significantly the federal interest in
efficient and safe interstate transportation, state law cannot be harmonized with
Commerce Clause
(1) district court (finder of fact) found minimal safety value of statute
(2) record indicated that there was a substantial monetary burden on interstate
commerce (money for more gas, more trucks, etc.)
d. S. Ct.'s traditional deference to state highway safety regulations derives in part from
assumption that where such regulations do not discriminate on their face against
interstate commerce - their burden usually falls on local economic interest as well as
other states' economic interests - so state's own political processes will serve as check
against unduly burdensome regulations (less deference to legislative judgment is due,
however, where local regulation bears disproportionately on out-of-state residents
and businesses)
e. J. Brennan (concurring) - safety is irrelevant - they're trying to force surrounding
States to take the brunt of large trucks - clearly protectionist and isolationist
f. this was the last time Court struck down a facially-neutral statute on the theory of
the Dormant Commerce Clause - they must figure it's too much to undertake
(1) discriminatory aroma - most of the citation of discriminatory animus is the
governor, who doesn't make the law
(2) balancing process - state safety v. burden on interstate commerce - they're
comparing apples and oranges (human safety versus gas costs, etc. - lives versus
g. J. Rhenquist (dissent) - looking too closely at legislative intent in the States is
dangerous from a federalism standpoint - shouldn't you leave the States as individual
laboratories to experiment on this type of stuff
h. Surface Transportation Act of 1982 mooted Kassell by imposing uniform federal
regulations on double trucks, etc.
- so doesn't this mean that congressional action is a better way for disparate State
practices than to have judicial invasion of lawmaking
i. Exxon v. Maryland, 437 U.S. 117 (1978) - Maryland prohibited refiners to have
their own gas stations in State for the (good) reason that the refiners were being
preferential in selling gas to their own stations during a shortage
(1) Court held this was okay, even though it was sort of discriminatory, but the
discrimination would actually be detrimental to the people in Maryland . . . not
detrimental to interstate commerce
(2) facially neutral since it didn't actually appear to affect the flow of gas and oil
to the detriment of interstate commerce
6. C & A Carbone, Inc. v. Town of Clarkston, 511 U.S. 383 (1994) Text, p. 428
Town sued operators of recycling facility to enjoin them from violating local ordinance
requiring that solid waste processed or handled within town be processed or handled at
town's transfer station. App. Div. affirmed grant of summary judgment for town.
Certiorari was granted.
Before the Supreme Court: J. Kennedy, held that: (1) ordinance regulated interstate
commerce, and (2) ordinance impermissibly discriminated against interstate commerce.
Reversed and remanded.
a. town's ordinance requiring that all solid waste processed or handled within town be
processed or handled at town's transfer station "regulated interstate commerce," as
its economic effects were interstate in reach:
(1) by requiring operators of recycling facility to send nonrecyclable portion of its
waste to transfer station at additional cost, ordinance drove up cost for out-of
state interest to dispose of their solid waste at recycling facility
(2) as to waste originant in town, ordinance prevented every one except favored
local operator from performing initial processing step, thereby depriving out-of-
state businesses of access to local market
b. Rule: Court first considers whether ordinance facially discriminates against
interstate commerce, and if not, whether ordinance imposes burden on interstate
commerce that is clearly excessive in relation to putative local benefits
- here the Court is confused as to what category this case should be in - plurality
says it's mildly facially discriminatory, O'Connor says it's not facially so but it's
discriminatory in effect, and dissenters say not at all
c. central rationale for interstate Commerce Clause's rule against discrimination is to
prohibit state or municipal laws designed to effect local economic protectionism,
laws that would excite those jealousies and retaliatory measures that Constitution
was intended to prevent
d. ordinance requiring that all solid waste processed or handled within town be processed
or handled at town's transfer station discriminated against interstate commerce and,
thus, was invalid under interstate commerce clause
(1) even though ordinance erected no barrier to import or export of any solid waste;
(2) ordinance discriminated by allowing only favored operator to process waste that
was within town's limits
(3) town had number of nondiscriminatory alternatives for addressing health and
environmental problems alleged to justify ordinance, such as uniform safety
regulations enacted without object to discriminate
(4) fact that Court held statute discriminatory on its face meant it could dodge the
concept of whether the statute had some great benefit for the local government
d. discrimination against interstate commerce in favor of local business or investment
is per se invalid, save in narrow class of cases in which municipality can demonstrate,
under rigorous scrutiny - no other means to advance legitimate local interest
(1) Court relied on Dean Milk Co. v. Madison, 340 U.S. 349 (1951) to say that the
per se discrimination could only be upheld if there's an important State goal which
can't be accomplished in any other less discriminatory way
(2) if the State law is facially non-discriminatory, you do a balancing test of the
State's needs versus the burden on interstate commerce
e. J. O'Connor (concurring) - law doesn't facially affect interstate commerce, since it
prohibits instate as well as out of state companies from having the job - only one
company gets it - but it will affect interstate commerce if everyone did it. . . .
f. J. Souter (dissenting) - since all (except one) comers are restricted, in and out of
state, law doesn't come under the Framer's ideas of restriction of interstate commerce
(which caused regional jealousies, retaliatory tariffs, etc.)
(1) takes issue with majority's failure to distinguish between exclusion of outside
business versus exclusion of all business
(2) except one - basically government's agent, not really acting like a competitor
(they were letting the builder run the plant for 5 years to make his money)
(2) costs are borne by locals, not really out-of-staters (but is this really true)
7. South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984) Text, p. 441
Alaskan timber purchaser and shipper brought action challenging Alaska's requirement
that timber taken from state lands be processed within the state prior to export. District
Court found the requirement violative of the commerce clause, and Alaska appealed.
App. Ct. reversed. Certiorari was granted.
Before the Supreme Court: J. White, held that the requirement was not authorized by
Congress' policy with respect to timber taken from federal land where application of
that policy to state lands was not expressly stated. Reversed and remanded.
a. Alaska's requirement that timber taken from state lands be processed within the state
prior to export was not exempt from Commerce Clause scrutiny under market
participant doctrine since Alaska was not participant in processing market but only
in timber-selling market and was using its leverage in selling market to exert
regulatory effect in processing market (normally, after you sell something, the
buyer can do what he wants with it, no strings attached - Alaska leaves strings
attached, basically regulating the post-sales use of the timber, not simply being a
market participant)
b. Alaska's requirement that timber taken from state lands be processed within the state
prior to export was invalid per se under the Commerce Clause because of its
protectionist nature and because of the burden it imposed on interstate commerce
c. market-participant doctrine: if a State is acting as a market participant, rather than
as a market regulator, the dormant Commerce Clause places no limitation on its
activities - participants in the market can decide who to sell to and who not to
sell to, just like any private business (more of a taxing and spending power, not
a regulation of commerce)
d. federalism argument - more police power with market-participant exception
(1) Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976) - just came down
e. free riding - economic doctrine that someone from out of state, e.g., comes in
and gets a free ride if the State can't regulate them (tax them more than in-state
participants) - market-participant doctrine solves this, by allowing the State to
tax out-of-staters more than in-state citizens (who pay State tax, etc.)
(1) subsidize in-state tax payers over out-of-state interlopers
f. limit to market-participant doctrine - no-downstream regulation limit
(1) seller doesn't determine what happens to the goods after the sale normally
(2) if seller places after-the-sale restrictions on buyer, this is like a regulation,
so it's regulation, not simply market participation (Prof. claims "bullshit,"
regular businesses do that all the time, e.g. franchises, computer software,
retailer-wholesaler relationsips, etc., etc.)
(3) also need to make sure State doesn't end-run around Commerce Clause by
doing this - however, here, buyers are voluntarily participating, so what's
the problem
(4) Court allows Alaska an out:
(a) tax everyone in Alaska
(b) then subsidize the timber mill. . . .
J. Rehnquist argues, what's the difference between subsidies and taxes???
g. Note 3, p. 448:
(1) importance of telling between regulation and participation
(2) Test: is the state chosing buyers and sellers, or is the state imposing requirements
on other people not in privity of contract
h. flow of Dormant (Negative) Commerce Clause:
(1) Congress has not elected to act (not active Commerce Clause)
(2) State excepted if it's acting as a market participant
(3) however, no downstream (regulatory) limit for the State
(4) p. 344: Garcia, Reno - distinction between commandeering the States and
imposing a federal rule - it is okay to regulate under the Commerce Clause,
but not to commandeer legislative or executive components of the States'
8. United Build. & Constr. Trades Council v. City of Camden, 465 U.S. 208 (1984)
Association of labor organizations representing private employees in building and
construction trades filed appeal challenging N.J.Treasury Department's approval of
municipal ordinance requiring that at least 40% of employees of contractors and
subcontractors working on city construction projects be city residents. N.J. S. Ct.
certified appeal directly to that court and rejected challenges to ordinance's validity.
Before the Supreme Court: J. Rehnquist, held that: (1) city ordinance requiring that at
least 40% of employees of contractors and subcontractors working on city construction
projects be city residents was properly subject to strictures of Privileges and Immunities
clause; (2) ordinance discriminated against protected privilege; and (3) since it was
impossible to evaluate city's justification, remand was appropriate. Reversed and
a. fact that ordinance was municipal, rather than state, law did not place it outside
scope of privileges and immunities clause, particularly where municipal ordinance would not have gone into effect without express approval of State Treasurer
b. U.S. Const. Article IV, § 2(1) The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
c. Camden's arguments are:
(1) first, this is a municipality, not a state issue, so the Privileges and Immunities
Clause does not apply - Article IV deals with State action and the relationship
between citizens of different States
- Court argues that municipalities are under the control and part of State
sovereignty, a state subdivision, and so it's covered
- this is opposite of treatment of municipalities in 11th Amendment cases
(2) second, the preferences argued were for municipal, not state, residents
- Court argues that this does discriminate against out-of-state residents, since
they can't get the work, and they can't vote or otherwise remedy the problem
(so out-of-state citizens are affected more than N.J. residents)
d. Two Step analysis:
(1) does the action burden the Constitution (infringe on a constitutional right)
(2) if it does, then you must find a substantial reason (intermediate scrutiny) for
the State to infringe upon this right and the means chosen must advance the
- different from dormant Commerce Clause, which requires that the means
chosen must be basically the only or the least invasive means
e. difference in scrutinies:
(1) dormant commerce clause - strict scrutiny (i.e. more control over state regs)
- strict scrutiny is almost always fatal to the state action
(2) privileges and immunities clause - intermediate scrutiny (i.e. less control over
state action)
(3) why the difference? - S. Ct. has more interest in (dormant) Commerce Clause
than the Privileges and Immunities Clause, because Congress can always overrule
the strict decisions of the S. Ct. with an (affirmative) Commerce Clause act - if
the Court does something wrong with the Privileges and Immunities (or other
Article IV claim), you'd need a Constitutional Amendment to fix it
- so the S. Ct. is slightly more permissive on Article IV cases, since it takes so
much work (and Amendment) to fix it
- the decision doesn't say that - it's just speculation that it's a good reason for the
(4) Privileges & Immunities Clause is sort of a fall-back if the Dormant Commerce
Clause doesn't fit (you'd rather the D.C.C. since the scrutiny is strict)
f. Dormant Commerce Clause:
(1) protects aliens
(2) protects corporations
(3) protects citizens, etc.
(4) deals with goods & services, things in commerce, etc.
(5) Note 4, p. 456: what would happen in Carbone under a Privileges & Immunities
claim - not applicable, because it's corporations involved, not real persons, and
if the city bought the plant, it would then be a market participant (unless they
do down-stream coercive regulation, command-and-control coersion)
(6) in-state tuition cases: never got to the S. Ct. - a number of circuit cases
- generally, circuit courts have said that a "right to get an education" is not a
fundamental right or privilege under Article IV, § 2
g. Privileges & Immunities Clause - only protects citizens and residents of a state
(1) only natural persons, not juridical persons like corporations
(2) deals with trade concerns, etc., but must be something that is a right of
citizenship - this has gravitated to the right to pursue a calling, right to work,
right to pursue an occupation
(a) example in Camden opinion:
Hicklin v. Orbeck, 437 U.S. 518 (1978) - aka the Alaska Hire Case
- right to pursue a common calling is the only commercial right protected
under the Privileges & Immunities Clause
(b) example to the contrary:
Montana Hunting Committee Case of 1978
- Montana had higher fees to hunt for non-residents, and non-residents sued
under P&I Clause and lost - S. Ct. said "right to hunt" is not covered. . . .
(c) narrow category where P&I Clause applies but D.C.C. doesn't:
- where something is a "fundamental right" under the 14th Amendment
- fundamental rights almost always fall under strict scrutiny and then always
fail the scrutiny
- Doe v. Bolton, ---U.S.--- (1973) - companion case to Roe v. Wade, where
Ga. allowed abortions for in-state residents - S. Ct. struck down the state
limitations as infringing on interstate comity - interstate commerce applied
(3) no market participant exception in P&I Clause action - therefore, you can try
the P&I Clause as a back-up if the D.C.C. doesn't apply to market participants
h. in Camden:
(1) Court holds that opportunity to seek employment is a right falling under the
Privileges and Immunities Clause
(2) so Camden must show that the discrimination (of out-of-staters) is a substantially
good fit to the economic problems the city suffers
- there must be a fit between the action and the object of evil the statute aims to
- this is a balancing test, not strict scrutiny, as to whether the statutory effects
are unduly burdensome or not - not per se unconstitutional analysis, but milder
i. Dormant Commerce Clause: deals with both facially discrimination and also with
effective discrimination (in a statute that's facially neutral)
(1) strict scrutiny for facially or as-applied discrimination
(2) intermediate scrutiny if its effective burdening of interstate commerce - use a
balancing test to decide if the burden is unreasonable or not

VI. Citizenship, Privileges & Immunities Text, p. 460
A. Introduction/General:
1. Dred Scott v. John F.A. Sandford, 60 U.S. (19 How.) 393 (1856) Text, p. 462
(N.B.: the real owner was "Sanford" but it was misspelled on the official record)
Case was brought up, by writ of error, from the Circuit Court of Missouri for trespass
vi et armis instituted by Scott against Sandford. Prior to the institution of the present
suit, an action was brought by Scott for his freedom in the Circuit Court of St. Louis
county, (State court,) where there was a verdict and judgment in his favor. On a writ of
error to the Supreme Court of the State, the judgment below was reversed, and the case
remanded to the Circuit Court, where it was continued to await the decision of the case
now in question. Scott alleged three counts: one, that Sandford had assaulted the P; one,
that he had assaulted Harriet Scott, his wife; and one, that he had assaulted Eliza Scott
and Lizzie Scott, his children. Issue was whether a "negro, whose ancestors were imported
into this country, and sold as slaves, [can] become a member of the political community
formed and brought into existence by the Constitution . . . [with] all the rights, and
privileges, and immunities, guarantied . . . to the citizen [including the right to sue] in a
court of the United States in the cases specified in the Constitution." (Art. III, § 2
diversity of subject matter jurisdiction - Dr. Sanford was a citizen of N.Y. and the real
issue was whether Scott was a citizen.)
Before the Supreme Court: C.J. Taney made a historical analysis and argued that the
state of the U.S. at the time of the writing of the Constitution did not include blacks
as citizens. He cited to each State's laws which showed that negroes, even freemen of
color, were stigmatized and not considered true citizens. Therefore, they were not
covered in the meaning of "all men" in the D. of I. or Constitution by the Framers.
He also refered to two clauses in the Constitution, Article IV, § 2, cl. 3 (later repealed)
and Article I, § 8, cl. 1 as evidence that the Constitution itself allowed for slavery, etc.
He implied that this was unjust, but declared that it was not the Court's job to make a
just v. unjust argument - only constitutionality or not.
a. Background:
(1) everyone accepted that the South had slavery, the North pretty much didn't
have slavery, and the only question was the new territories
(2) Missouri Compromise 1820 - slavery in the Territories nort of 36'30" was
banned except in Missouri
(3) after 1820, to Scott, Kansas was basically in a civil war over slavery - lots of
people from Missouri, with slaves, were moving into Bleeding Kansas (e.g.
John Brown, James Brothers, etc.)
(4) Kansas-Nebraska Act of 1854 - repealed Missouri Compromise and allowed for
"popular sovereignty" and each territory/state would decide for themselves
(a) worked well in Nebraska - not much slavery anyway because of climate
(b) didn't work well in Kansas - divided between pro-and anti-slavery forces
(5) S. Ct. justices were mostly from the South and were astute politicians, so they
set about to "solve" the Nation's problem here
(6) Somerset Doctrine - doctrine of old international law - if a slave sets foot on
a free land (where slavery is unlawful), he's forever free - Scott argued that since
he went to Minnesota with his owner, he was then de facto free and forever free

N.B.: First case wherein all justices wrote separate opinions - not repeated until 1970.
Taney's opinion is just usually used as "the" opinion. . . .

b. Taney initially distinguished Negroes from Indians, who were likened to foreign
citizens, ruled under foreigned laws, who emigrated to the "white population" just
as any foreigner could emigrate here and become naturalized
(1) J. Curtis in dissent pointed out that Taney was wrong about all the States not
acting like freed slaves could be citizens - 5 States had blacks with rights to vote
and own property and etc. - obviously Taney's historical arguments were bad
(2) one daughter, Eliza, was born in Minnesota, a free territory - so why isn't she
free therefore?
c. a State, by its laws passed since the adoption of the Constitution, may put a foreigner
or any other description of persons upon a footing with its own citizens, as to all the
rights and privileges enjoyed by them within its dominion and by its laws - but that
will not make him a citizen of the United States, nor entitle him to sue in its courts,
nor to any of the privileges and immunities of a citizen in another State
d. the power of Congress to establish a uniform rule of naturalization does not confer
the power to raise to citizenship a person born within the United States, who from
birth or parentage, or by the laws of the country, is not of right a citizen, since
naturalization applies solely to aliens
e. Taney declared that the Missouri Compromise (which had already been repealed) was
unconstitutional - why wasn't this moot, since the Act was repealed already. . . .
- Missouri Compromise was unconstitutional because the Congress didn't use the
Territory and Property Clause (Art. IV, § 2, cl. 2) to pass the Missouri Compromise,
because the Clause applies only to territory in hand at the time of the ratification of
the Constitution
- Northwest Ordinance was okay, since the Northwest Territory was owned by the
f. U.S Const. Art. II, § 2, cl. 2. Treaty Making Power; Appointing Power
[The President] shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur; and
he shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
g. Amer. Ins. Co. v. Canter, 26 U.S. 511 (1828) - a case where a number of bales of
cotton claimed and sold off of a shipwreck off of Florida were at controversy, and
the argument centered around what laws were in effect and which courts were
constitutionally enabled in the territory (of Florida):
(1) under the Constitution, the U.S. acquires territorial possession through treaty
or conquest, under the Articles of the Constitution (Art. I, § 8, cl. 3, cl. 11,
Art. II, § 2, cl. 1, cl. 2)
(2) the Congress exercises the combined powers of both the National and the state
government over territories before they become states (further, the territory
is under the governing jurisdiction of the U.S. government)
(3) all laws in force, except for political ones in character, concerning relations
between the people and their sovereign remain in force until altered by the
federal government
(a) federal government cannot deprive territories of life, liberty or property
without due process of law (Fifth Amendment)
(b) in Scott, Taney uses the doctrine/strategy of the substantive due process
doctrine - he takes the procedural due process clause and expands it to be
a substantive thing that's off limits to Congress - even if Congress follows
the right procedure, some things are so much of right that they can't
interfere even with good procedure (liberty to work, e.g., from minimum
wage New York case in 1905 about bakers) - so here, it's an absolute
substantive right to travel with your slave anywhere you want without
interference, which is then why the Missouri Compromise is unconstitutional
(c) judicial activism of Taney: he does all of this to prevent Congress from
arguing slavery in the territories to stop the bickering between Northern and
Southern Democrats and calm the Union - it failed, since it removed the
political debate, causing the political process to short-circuit and preventing
compromise, hence war - don't constitutionalize a political fight!
2. Slaughter-House Cases, 83 U.S. 36 (1873) Text, p. 480
Statute in New Orleans to incorporate a livestock landing and slaughter house company
for exclusive processing in the area for health reasons. Penalties were specified for
violations, etc., and limits, inspections, and other particulars were specified. Ps argued
that the statute created a monopoly and prohibited a number of people from their
Before the Supreme Court: J. Miller found the issue to be whether any exclusive privilege
can be granted to any citizens or corporations by the legislature of a State. Ps claimed
violations of the 13th Amendment (involuntary servitude in forcing them to send their
animals there, work there exclusively, etc.), Privileges & Immunities Clause (inability
to pursue their calling), Equal Protection, and Due Process (14 Amendment). Court held
that Act La.1869, granting to a corporation the exclusive right to have and maintain
slaughter houses and yards inclosing cattle intended for sale or slaughter, and prohibiting
all other persons from having such establishments within certain limits, and requiring all
cattle and other animals intended for sale or slaughter in that district to be brought to
the yards and slaughter house of the corporation, and authorizing the exaction of certain
fees for the use of its wharves, and for each animal landed and slaughtered, is not
unconstitutional, as abridging the privileges of citizens of the United States.
a. alleged argument by N.O. was health and safety - covert reason behind the ordinance
was to get the beef business from Texas, where there was a glut of cattle which had
to be sent to the U.S. generally, and the La. folks could buy low and sell high (as the
only game in town south of Philadelphia)
(1) butchers brought the lawsuit since they were cut out
(2) modern Dormant Commerce Clause theory would work today
(3) arguments:
(a) it's slavery (violation of 13th Amendment) to force them to work in the
monopolistic stockyard
- Court said no, 13th Amendment doesn't apply to whites
(b) 14th Amendment due process/equal protection
- Court said no, 14th Amendment doesn't apply to whites
(c) Privileges & Immunities - right to pursue lawful calling, etc.
- Court said no, the citizen of the U.S. from abridgment by the State of
fundamental P&Is of national citizenship, but the citizen of the State can
be regulated by his own State
- national rights: travel, own property, etc. - should be the Bill of Rights,
esp. the first 8 amendments (esp. the 1st and 2nd), which were argued by the
debaters on the 14th Amendment when it was being written (also habeus
corpus, no religious test clause, etc.)
- the modern answer on incorporation is selective incorporation - some of
the 5th, 7th, and 2nd Amendments have not been incorporated against the
- after Slaughter House gutted the 14th Amendment, the Court had to use
the concept of substantive due process to incorporate the Amendment
b. Saenz v. Roe, infra, changed the interpretation of the Privileges & Immunities
Clause in 1999
3. Saenz v. Roe, 526 U.S. 489 (1999) Text, 490
Ca. enacted a statute limiting welfare to new residents coming to the state to the amount
they received in their original state for a year. P sued alleging unconstitutionality and
violation of Equal Protection, etc.
Before the Supreme Court:
a. reaffirmes Shapiro v. Thompson, 394 U.S. 618 (1969), an Equal Protection Clause
case, which dealt with a family moving to a new state and unable to receive welfare
for a year
b. right to travel (from state to state):
(1) right to move back and forth between the States - nontextual - contained in the
Articles of Confederation but not the Constitution per se, but the Dormant
Commerce Clause is nontextual (judge-made doctrine)
(2) right to be treated as a welcome visitor and not an unwelcome alien - Article
IV, § 2, interstate comity clause
(3) right to be treated like all the other citizens of the State if you elect to stay
there - Privileges & Immunities Clause

EXAM DAY - or ask questions in between...
What's So Special About The U.S. Constitution?
A. American History overview:
1. American Revolution:
a. "four score and seven years ago" - dates to Declaration of Independence, not the
b. Lincoln - D. of I. is the silver frame around the golden apple (Constitution)
c. American Revolution was based on:
(1) concepts of law and government from Protestant theology, coupled with
European "enlightenment" philosophy
(a) governments are set up like Old Testament governments - contract or
covenant sets up the framework of government (e.g. Abraham's
covenant/contract with God) - written down ("the word"), not spoken
- Mayflower Compact - first written document in history (1620), unlike
unwritten, "living" British constitution which always changes
- colonial charters (from King) - municipal corporation in writing
(b) until after the French and Indian War, England ignored America (too
busy fighting French and Spanish, etc.) and Americans lived under their
own written laws, self-governed, etc.
(c) John Locke - protect natural rights to "life, liberty, and property"
(d) self-government was seen as by self-consent (a la Locke - everyone in
state of nature is created equal, with equal rights to life, liberty, property)
(e) concepts of women's rights and slavery weren't important because they
were not particularly understood then
(f) in England in 1776, only aristocracy and certain landowners had the
right to vote, but in America, all free males (white and of color)
could vote (since they had availability of squatting on large lots of land)
(g) in Spain and France, e.g., no one could vote - kingdoms
(h) England started trying to get money for its expenses incurred in the
French and Indian War, what English regulars had to come fight
(i) Americans bucked the idea of rule from England - they had a sense of
"sovereignty" that was different from England's - American's decided
"the people" were sovereign, and British thought Parliament was sovereign
- stamp tax (on tobacco, whiskey, etc.) should be local/internal, and
Parliament shouldn't be able to tax internal activities of colonies
as opposed to external activities, like defense from other countries, etc.
(NOTE: Commerce Clause, Article I, § 8[3], differentiates between
stuff Congress does for external activity, not internal)
- America could divide sovereignty (internal, external, different levels),
e.g. Federalism - England only wanted unitarian government (one
central Parliament, with absolute power, no checks and balances)
(2) idea that England was declining (like Rome) and freedoms were disappearing
(3) 1763-1776 - course of discussion that led to revolution (not precipitous, like
French Revolution)
2. Natural ("unalienable") rights:
a. rights to life, liberty, property - God-given rights, not derived from Parliament
or anyone else ("Laws of Nature and of Nature's God") - this was foreign to England
b. e.g. First Amendment - "Congress shall make no law...." - these rights are
not given by government, but are independent and natural
(1) governments can either respect natural rights or abridge them - England was
abridging them, because England believed that Parliament was the source of
law and could change it at will
(2) Declaratory Theory of Law (Natural Rights Theory of Law) - rights are given
by nature (or God) and they cannot be abridged by government (Lockian
philosophy - only job of government is to protect our rights)
c. if the government is trying to abridge your rights, you then have a duty to
revolt, to prevent abridgment of the rights:
(1) government by consent
(2) natural rights of man
(3) local control
d. American Revolution was basically over abstract governmental theories, but some
of the violence was governed by animosity of certain American groups (e.g.
Scots-Irish immigrants) against the English
B. Constitutionalism:
1. constitutionalism - definition?
a. 1780s - Federalist Papers - rule of law, government by consent, and accountability
of officials to do what is right
b. modern (1930s) - Yale professor - name given to the trust that men put on
old parchment to keep government in line (sort of a culture of constitutionalism)
2. constitutions survive only in a constitutional culture and reflects the genius of that
people (their own ideas of self-government, etc.)
a. hard to make a constitution like U.S. work in a culture that is not derived from
the Puritan covenant-thinking population
b. foedus - Latin word for covenant - e.g. "federalism," "federal," etc.
c. covenant = contract = law between the parties (i.e. no superior derivation - it
was consented between the parties, consensual submission to authority)
3. Mayflower Compact:
a. intent of how we shall govern our colony
b. covenant to bind ourselves into a civil body politic
c. laws and ordinances that are thought to be needed and good for the community
(i.e. local or home rule ideas, and morality or general good)
d. basically a covenant by common consent (not imposed without free will)
e. equality under the law - rulers/governors bound by the same rules as the rest
(no separate rules for rulers v. the ruled)
4. 1787 - after War was over and America needed to start their new nation:
a. great Seal - new order of the ages (Novus Ordo Seclorum) - a new nation
b. delegates "decided the fate of republican government" in Constitutional Convention
c. delegates thought they were proving to the world the success of republican
self-government (or they would degenerate like other governments before them)
(1) needed to give government enough power to maintain stability and order
(v. enemies foreign and domestic)
(2) needed to have enough balance to keep it from taking peoples' natural rights
and foster liberty
d. Constitution:
(1) in general:
(a) provides system of regularized constraints on government action
(b) since government derives from the people, this is self-restraint (i.e. the
people give up rights, limiting government, to prevent tyranny)
(2) U.S. Constitution in particular:
(a) separated and balance of powers (unlike the English system) with
checks of one versus the others (English Parliament was unchecked,
thus a tyranny)
(b) unavoidable restraints on government action (English "constitutions"
contained some of this, before Parliament took total control)
- Edward Cook had resisted James I's claim to absolute power in England
- famous essay - "Sovereign power, Sir, is no parliamentary word. Magna
Carta is such a fellow that he will have no sovereign." - i.e. Magna
Carta is supreme, not the king (absolute monarch)
(3) Constitution was ratified without the Bill of Rights - perfectly designed to
protect the rights of the people (i.e. so limited in authority and so
structured, that the rights of the people will be protected)
(4) American innovations:
(a) Puritan covenant thinking and charters - idea that constitutional contracts
should be in written form (English constitution was unwritten and therefore
nebulous and forever changing - generally the case in Europe)
- difficult to envision now, since most constitutions are written today
- written covenant is interpreted like common-law contracts - read the
contract and try to find the will of the parties
(b) there should be local control, unlike the "pleasure of the crown" setup in
England - from the home rule in each of the 13 colonies (out on the frontier
without supervision from England)
- popular sovereignty - people locally in the best position to rule
- after 1776, etc., all 13 states set up their own constitutions, which all
gave supreme governing authority to a legislature (they were afraid of
executive power and wanted it limited, to Madison's and Hamilton's dismay)
(5) most important for modern constitutionalism was written document notion,
and national constitution followed state constitution and was put in writing
(6) constitutions also had to come directly from the people
(a) 11 of 13 state constitutions were written and ratified by legislatures
(b) N.H. & Mass. come later and didn't let the legislature write and ratify
theirs (since constitution had to bind even the legislature), so they had
special ratification conventions separate from the legislature (direct and
local authority of the people - very legitimate - "of the people, by the
people, for the people. . . ." basically)
(c) this was great innovation at the time, over 200 years ago
(d) government was by the people, who could take care of themselves
mostly, but the government needs to defend from foreign powers etc.

A Few Definitions:

habeas corpus
[-'kōr-pes, -'pūs]
Medieval Latin, literally, you should have the body (the opening words of the writ)
: any of several writs originating at common law that are issued to bring a party before the court
: "habeas corpus ad subjiciendum" in this entry
Example: the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it -- U.S. Constitution art. I

bill of attainder
1 : a legislative act formerly permitted that attainted a person and imposed a sentence of death without benefit of a judicial trial
2 : a legislative act that imposes any punishment on a named or implied individual or group without a trial
Note: Bills of attainder are prohibited by Article I of the U.S. Constitution.

Anglo-French atteinder, from ateindre to convict, sentence, literally, to reach, attain, ultimately from Latin attingere to reach, from ad to + tangere to touch
: the termination of the civil rights of a person upon a sentence of death or outlawry for treason or a felony
(see also bill of attainder at bill § 1 corruption of blood)
Note: In English law up to the nineteenth century, attainder was the harsh consequence of conviction for treason or a felony. It resulted in the forfeiture of the convicted person's property. It also involved corruption of blood, which barred the person from inheriting, retaining, or passing title, rank, or property. A person outlawed lost the right to seek protection under the law. Article III, Section 3 of the U.S. Constitution prohibits corruption of blood or forfeiture upon a conviction for treason ``except during the life of the person attainted,'' and Article I, Section 9 prohibits bills of attainder. Attainder was abolished in England in 1870.

ex post facto law
: a civil or criminal law with retroactive effect
: a law that retroactively alters a defendant's rights esp. by criminalizing and imposing punishment for an act that was not criminal or punishable at the time it was committed, by increasing the severity of a crime from its level at the time the crime was committed, by increasing the punishment for a crime from the punishment imposed at the time the crime was committed, or by taking away from the protections (as evidentiary protection) afforded the defendant by the law as it existed when the act was committed
Note: Ex post facto laws are prohibited by Article I, Section 9 of the U.S. Constitution.


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