Constitutional Law I Outline

A. Invalidation of State Laws- The power of the federal courts to invalidate state laws to nullify actions of
state and local officials as unconstitutional.
1.

Martin v. Hunters Lessee (1816)

Appellate power of the USSC does extend to cases pending in state courts; and that the sec 25 of the
judiciary act which allows for this review on a writ of error is supported by the constitution.
a.

b.
c.
d.

B.

Facts: Hunter claims ownership of track of land given to him by Virginia land confiscation act.
Martin claims ownership of the same land because he inherited it from Lord Fairfax who got
it from England when they owned that land. The Court of Appeals of Virginia held that the
land Martin Inherited was considered null and void by the 1989 VA statute and the 1794
treaty confirming British land titles did not affect the seizure. The USSC reversed the VA
courts holding. But the VA court refused to obey the Supreme Court because the Appellate
power of the USSC does not extend to VA Appeals under the sound construction of the
th
Constitution of the US. The 25 section of the act of congress to extend the appellate
jurisdiction of the supreme court to the state court is not in line with what the constitution
says.
Issue: Whether the Supreme Court has appellate jurisdiction over state courts?
Holding: Yes, Article III says in all other cases before mentioned the USSC shall have
appellate jurisdiction.
Reasoning: (J Story) The federal power was given directly by the people and not by the state.
It is the case then and not the court that gives the jurisdiction. The Supremacy Clause states
that the federal interpretation trumps the States interpretation. Art I Sec 10 Courts cannot
create Ex Post Facto laws. Constitution does not serve as a restrain on states. State judges
are pound to uphold the constitution. Federal courts are better at protecting individual
rights.

Interpretive Choices: the Second Amendment- Does the Second Amendment guarantees a citizen an
individual right to carry firearms?
1. District of Columbia v. Heller (2008)
a. Facts: D.C. bans Handgun possession. Heller is a special police officer in DC. The District
refused Hellers application to register a handgun he wanted to keep at home. Heller sought
an injunction against the DC law baring handgun registration, the licensing requirement
prohibiting the carrying of firearms at home without a license, and the trigger lock
requirement. The Federal district court dismissed Hellers complaint. The court of appeals of
the DC Circuit court reversed and directed the District Court to enter into a summery
judgment in favor of DC. The court of Appeals held that the entire ban on handguns violated
nd
the individual right to possess firearms under the 2 amendment. The
nd
b. Issue: What rights are protected by the 2 amendment?

c.

C.

nd

Holding: The 2 amendment protects an individual right to posess a firearm unconnected

with service in a militia, and to use that arm for traditionally lawful purposes, such as selfdefense within the home.

d.
Limits on the Judicial Power- The court cannot impress its decisions against the will of elected officials
th
and the people. Congress and the court impose limits on the exercises of federal judicial power. 11
Amendment imposes limits on cases Congress may authorize courts to hear.
Habeas Corpus-a writ employed to bring a person before a court, most frequently to ensure
that the partys imprisonment or detention is not illegal.
Sec 14 of the Judiciary Act of 1789 allows federal courts to issue a writ to free those held, in
custody under ot by colour of the authority of the U.S.
1867 Reconstruction Congress passed an act which gave federal courts the power to grants
writs of habeas corpus in all cases where any person may be restrained of his or her liberty in
violation of the Constitution or of any treaty by law of the U.S.
Congress adopted the Military Reconstruction Act, which devided the south into districts
subject to military command
1. Ex Parte McCardle (1869)
Congress has the power to change appellate jurisdiction of the Supreme Court
a.

2.

Facts: McCardle was a news paper editor arrested by a Major General for the nonmilitary
offense of disturbing the peace, inciting to insurrection and disorder, libel, and impeding
reconstruction. McCardle filed a petition of Habeas corpus under the 1867 act, his petition
was denied. He appealed to the Supreme Court. In March 1868 Congress repealed the act of
1867.
b. Issue: 1. Whether the act of 1868 takes away the jurisdiction defined by the act of 1867?
c. Holding: (Chief Justice) Yes, The act of 1868 does not except from that jurisdiction any case
but appeals from the Circuit Court under the act of 1867. It does not affect the jurisdiction
which was previously exercised.
d. Reasoning: Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the facts and dismissing the cause.
When an act is repealed, it must be considered, except as to transactions past or closed, as if
it never existed.
i. Norris v. Crecker and Insurance Company v. Ritchie, No judgment could be rendered
in a suit after the repeal of the act under it was brought and prosecuted.
Felker v. Turpin (1996)
Congress can place limits on second and subsequent habeas corpus petitions.
a. The court considered the Constitutionality of the Antiterrorism and Effective Death Penalty
Act of 1996. Act places several restrictions on second and subsequent habeas petitions. This
petition is only granted after a special appellate panel granted a motion for leave to file a
petition.
b. Court held that Congress had not infringed on the judicial power to hear cases on an
original writ of habeas corpus and that the limit on second and later writs did not
unconstitutionally cause a suspension of the writ.

3.

Boumediene v. Bush (2008)

Everyone has a right to habeas Corpus.
a.

Facts: Boumediene was a class action suite by several alians captured on the battlefield all
over the world and detained in Guantanamo Bay Naval Station. None of them were U.S.
citizens. Congress has enacted a statute, the Detainee Treatment Act of 2005 that provides
certain procedures for review of the detainees status.
b. Issue: Whether they have the constitutional privilege of habeas corpus, a privilege not to be
withdrawn except in conformance with the Suspension Clause Art I Sec 9 cl. 2
c. Holding: Yes they do have a right to habeas corpus. And the Detainee Treatment Act doesnt
make up for it.
d. Reasoning: The framers saw habeas corpus a basic liberty to enjoy the freedoms of unlawful
restraint. The Suspension Clause ( Art 1 Sec 9 cl. 2) protects this as well, providing that it may
be suspended only in cases of a threat to public safety as in rebellion or invasion. However it
is clear that Gmo Bay has been under U.S. control for more than 100 years. The citizens are
all aliens, captured outside the U.S. and Gmo is in the U.S. jurisdiction. The petitioners are
entitled to a writ of habeas corpus.
D. Reversal of Judicial Decisions
1. Miller v. French (2000)
Final Judgments are final other branches of government cannot reopen them.
a.

E.

th

Facts: 1975 class action. Prisoners received an injunction to remedy violations of the 8
amendment regarding conditions of confinement. In 1995 Congress enacted the Prison
Litigation Reform Act, which sets a standard for the entry and termination of prospective
relief in civil actions challenging prison conditions. (allows for them to terminated
injunctions that does not meet the standard. Sec 3626 (e)(2) dictates that the motion to
terminate the injunction could act as automatic stay of that relief beginning 30 days after
the motion is filed and ending when the court rules on that motion. The Prisoners moved to
enjoin the operation of the automatic stay, arguing that it violated the due process and
separation of powers principles
b. Issue: Whether 3626 (e)(2) us constitutional under the separation of powers principle?
c. Holding: No, it does not violate the separation of powers principle.
d. Reasoning: Article III gives federal courts the power not just to rule on cases but to decide
them, subject to review only by superior courts in the Article III hierarchy. Congress cannot
retroactively command Article III courts to reopen final judgements. The PLRA does not
deprive courts of their adjudicatory role, but merely provides a new legal standard for relief
and encourages courts to apply that standard promptly.
Standing and Mootness
i. Constitutional and Prudential Limits on Constitutional Adjudication: The Case or
Controversy Requirements
ii. Justiciability doctrines
iii. Advisory opinion (prohibited)
iv. Ripeness
v. Mootness
vi. Standing

Political Question
Sources: Article III; Prudential limits (Congress can override this)
Advisory Opinions: question about legality or Constitutionality of an act or actions. Provides
early guidance. BUT with advisory opinions there is no case or controversy.

1.

declines to issue opinion as it would violate separation of powers.

Prohibition frees courts up to decide other issues. Also to hear case later on. Ensures finality.
Case or Controversy requirements:
Actual dispute
Likelihood of favorable decision that will bring about change or impact.
Standing: Can a specific party or individual bring a case?
Article III:
i. Injury in fact
ii. Concrete and particularized
Actual or imminent NOT conjectural/hypothetical
i. Causal connection
ii. More direct the link, more likely to be satisfied (think proximate cause in tort law).
iii. Redressability
iv. Relief requested must be designed to alleviate the injury caused by the defendants
actions.
Protects Against advisory opinions by making sure parties have a stake in the claim
i. Prevents against abstract questions
ii. Preserves judicial economynot only cases likely redressable
iii. Promotes fairnessonly those w/stake in the game
iv. Promotes separation of powers by ensuring Courts will leave broader Qs of policy to
legislative and executive.

Friends of the Earth v. Laidlaw Environmental Services Inc. (2000)

i. Facts: Friends and others filed a citizen suit inder the Clean Water Act against Laidlaw,
alleging noncompliance with the NPDES permit, seeking injunctive relief and an award
of civil penalties. Laidlaw said FOE lacked standing. District Court issued Laidlaw a civil
penalty of $405,800, but denied the injunction. FOE appealed to the amount of the civil
penalty but nothing else. The court of Appeals dismissed the case on account of
mootness. The case became moot after Laidlaw complied with the terms of the permit
ii. Issue: does FOE have standing? Can an interest group sue on behalf of a member? Did
this case become Moot?
iii. Holding: No, the Court held that a citizen suitor's claim for civil penalties need not be
dismissed as moot when the defendant, after commencement of the litigation, has
come into compliance with its NPDES permit. "A defendant's voluntary cessation of
allegedly unlawful conduct ordinarily does not suffice to moot a case," Justice Ginsburg
wrote for the Court. "Congress has found that civil penalties in the Clean Water Act
cases do more than promote immediate compliance... they also deter future violations,"
concluded Justice Ginsburg. The Court also ruled that FOE had standing to bring the suit
on behalf on its members.

iv. A case might become moot if behavior could not reasonably be expected to recur.
2.

3.

4.

5.

Lujan v. Defenders of Wildlife:

i. challenge to Endangered Species Act and a limiting interpretation.
ii. (H) SC for D, dismiss for lack of standing.
iii. (R) (1) Harm (a) Concrete and Particularized (b) Real or imminent. (2) Redress ability
(plurality)
iv. (A) No particularized injury. Injury cannot be merely speculative. Aesthetic injuries may
be cognizable.
v. Associational standing: interests seeking to protect are germane to their organizational
purpose.
b. Congress sometimes has power to confer standing. However Congress cannot give a procedural
right that is unconnected to a particular individual injury.
c. Citizen suits must show a nexus between injury and cause of action.
Los Angles v. Lyons (1989)
a. Plaintiff lacked standing to seek an injunction against the enforcement of a police chokehold
policy because he could not credibly allege that he faced a realistic threat from the policy
b. No standing because there was no actual injury
Clapper v. Amnesty International USA (2013)
a. Facts: Section 702 of the Foreign Intelligence Surveillance Act of 1978 allows the Attorney
General to acquire foreign intelligence info by jointly authorizing the surveillance of individuals
who are not US persons and are located outside the US. Petitioners say Sec 702 is
unconstitutional, and seek an injunction against 702
b. Issue: Whether the petitioners have Article III standing?
c. Holding: No they dont have standing because their theory of future injury is too speculative to
satisfy the well-established requirement that threatened injury must be certainly impending.
d. Reasoning: Article III limits federal courts jurisdiction to certain cases and controversies. To
establish Article III standing threatened injury must be certainly impending to constitute injury in
fact and that allegations of possible future injury are no sufficient.
Massachusetts v. EPA (2007)
a. Facts: Massachusetts petitions the EPA to regulate gas emissions from cars. There is much
research to show such emissions add to green house gases that effect or cause global warming
which in turn affects the water on the coast. The EPA denied the request. Now the State of
Massachusetts is suing the EPA for not enforcing the Clean Air Act.
b. Issue: Whether a State has standing to sue the EPA for not enforcing the Clean Air Act.
c. Holding: Yes. In order to have standing a petitioner must have injury, causation and
redressability. Typically the injury of green-house gases would be too tenuous for an individual to
claim is a direct injury. However this is the State that is filing suit not the individual. The State has
a quasi-sovereign interest. The State has an interest in the land on its coast, and they have
shown the injury of losing coastal property as the water rises. The State has also shown the
casual connection, which the EPA does not deny, that global warming is a cause of the water
rising. As for redressability, that is shown as well. If the EPA regulates emissions from cars, that
will help the issue of global warming in the State of Massachusetts. Since all requirements are
shown, standing is proper.

6.

7.

Hollingsworth v. Perry(2013)
a. Facts: California citizens passed Proposition 8, which amended the California Constitution to
provide that only marriage between a man and a woman is valid or recognized by California.
The respondents, a gay couple and a lesbian couple, sued the state officials responsible for the
enforcement of Californias marriage laws and claimed that Proposition 8 violated their
Fourteenth Amendment right to equal protection of the law. When the state officials originally
named in the suit informed the district court that they could not defend Proposition 8, the
petitioners, official proponents of the measure, intervened to defend it. The district court held
that Proposition 8 violated the Constitution, and the U.S. Court of Appeals for the Ninth Circuit
affirmed.
b. Issue: Do the petitioners have standing under Article III of the Constitution to argue this case?
Does the Equal Protection Clause of the Fourteenth Amendment prohibit the state of California
from defining marriage as the union of one man and one woman?
c. Holding: No, the petitioners do not have standing. The Court did not reach the question on the
merits of the case
d. Reasoning: The Supreme Court held that federal courts only have the authority to decide cases in
which there is an actual controversy, which means that the complaining party must have
suffered a concrete and particularized injury that can be redressed through court action. In this
case, because the petitioners had only a generalized grievance in the form of a desire to defend
Proposition 8, they did not have standing under Article III. The Court also held that the
petitioners could not invoke the standing of the state to appeal because a litigant must assert
his/her own rights and cannot claim relief through the intervention of a third party. Because the
petitioners did not have standing to appeal to the U.S. Court of Appeals for the Ninth Circuit, that
court did not have jurisdiction to reach a decision on the case.
U.S. v. Windsor (2013)
a. Facts: Edith Windsor is the widow and sole executor of the estate of her late spouse, who died in
2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by
New York state law. Thea Syper left her estate to her spouse, and because their marriage was not
recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been
recognized, the estate would have qualified for a marital exemption, and no taxes would have
been imposed. Windsor filed suit in district court seeking a declaration that the Defense of
Marriage Act was unconstitutional. At the time the suit was filed, the governments position was
that DOMA must be defended. The district court denied the motion, and later held that DOMA
was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed.
b. Issue: Does the executive branchs agreement with the lower court that the act is
unconstitutional deprive the Supreme Court of jurisdiction to decide the case?
c. Holding: The Supreme Court held that the United States Government, despite the executive
branchs agreement regarding DOMAs unconstitutionality, retains a significant enough stake in
the issue to support Supreme Courts jurisdiction
d. Reasoning: Because the judgment in question orders the U.S. Treasury to refund tax money, the
Government stands to suffer a real economic injury and therefore maintains standing in the case.
The Bipartisan Legal Advisory Group (BLAG) presented substantial arguments for the
constitutionality of DOMA that reflected an actual controversy under Article III, which allowed
the Supreme Court to address the case without needing to decide whether BLAG would have had
standing before a lower court. The Court also held that states have the authority to define
marital relationships and that DOMA goes against legislative and historical precedent by

undermining that authority. The result is that DOMA denies same-sex couples the rights that
come from federal recognition of marriage, which are available to other couples with legal
marriages under state law. The Court held that the purpose and effect of DOMA is to impose a
disadvantage, a separate status, and so a stigma on same-sex couples in violation of the Fifth
Amendments guarantee of equal protection.
F.

Political Questions-- The case or controversy requirement of Article 3, Section 2 limits federal
jurisdiction to only justiciable cases: cases w/ substantial disputes affecting legal interests of genuinely
opposed parties, where specific relief can be obtained through judicial decision. Court will leave to
resolution to one of the other political branches. Purely political questions have been determined to be
nonjusticiable and should be left to other govt branches, under separation of powers.
i. - 4 factors are weighed in determining whether there is a political question:
1. A textually demonstrable constitutional commitment of the issue to political
branches f/ resolution,
2. the appropriatenes of attributing finality of action to political branches
3. lack of adequate standards for judicial resolution of the issue
4. the lack of adequate judicial remedies.
1. Baker v. Carr (1962)
a. TN voters seeking injunction and reapportionment of general assembly, arguing that
violation of equal protection clause of the 14th A.
b. S.Ct: justiciable question that federal court can intervene and decide.
c. Reapportionment is not a political question that would require non-justifiability.
d. Claim asserted here is an equal protection claim under the 14th A.
that retreated from the Court's political question doctrine, deciding that redistricting
(attempts to change the way voting districts are delineated) issues present justiciable
questions, thus enabling federal courts to intervene in and to decide reapportionment cases.
Brennan reformulated the political question doctrine, identifying six factors to help in
determining which questions were "political" in nature. Cases that are political in nature are
marked by:
1. "Textually demonstrable constitutional commitment of the issue to a coordinate
political department;" as an example of this, Brennan cited issues of foreign affairs and
executive war powers, arguing that cases involving such matters would be "political
questions"
2. "A lack of judicially discoverable and manageable standards for resolving it;"
3. "The impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion;"
4. "The impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government;"
5. "An unusual need for unquestioning adherence to a political decision already made;"
6. "The potentiality of embarrassment from multifarious pronouncements by various
departments on one question."

Guarantee Clause always means the court will dismiss the case because it is a political question
2.

Vieth v. Jubelirer (2004)

a.

3.

4.

Facts: Vieth, residents of Pennsylvania registered to vote as Democrats, brought suit in

federal district court against the State and officers involved in implementing the plan
(Jubelirer. Vieth alleged that the plan violated the one person one vote requirement of
Article I Section 2 of the United States Constitution, and that the plan was a political
gerrymander in violation of Article I and the Equal Protection Clause of the Fourteenth
Amendment. At trial, the court entered judgment for Vieth and retained jurisdiction over the
case pending the courts approval of a new plan. The governor then signed into law a new
redistricting plan designed to cure the apportionment problem. Vieth moved to impose their
own new redistricting plan in favor of the States new plan on the same grounds as its
predecessor. The district court denied Vieths motion, holding that the States new plan was
not malapportioned. Vieth appealed and the Supreme Court granted cert.
b. Issue: is political gerrymandering nonjusticiable?
c. Holding: Yes. Political gerrymandering is nonjusticiable. No judicially discernible and
manageable standards for adjudicating claims of gerrymandering exists.
d. Reasoning: the Constitution gives state legislatures the initial power to draw federal election
districts, but authorizes Congress to make or alter those districts. In Bandemer, the Court
held that the Equal Protection Clause also grants judges the power and duty to control that
practice. However, neither Article I, 2 or 4, nor the Equal Protection Clause, provides a
judicially enforceable limit on the political considerations that the States and Congress may
take into account when districting. One of the tests for nonjusticiability or political question
is a lack of judicially discoverable and manageable standards for resolving the question
Gilligan v. Morgan (1973)
a. student at Kent University sued for injunctive relief against an Ohio national guard. The
Plaintiff wanted a judicial evaluation of training weaponry and orders of the national guard.
Because the plaintiff sought broad call on the judicial power to assume continuing regulatory
JD over the activities of the national guard rather than a claim for past injuries or some other
against a specific imminent threat, the case was nonjudiciable. The court had no JD, the
constitution gave congress responsibility to prescribe discipline to the militia, and congress
authorized the president to issue appropriate regulations.
Nixon v. U.S. (1993)
a. Court held that the issue of whether the practice of a Senate Committee hearing evidence
against an individual who has been impeached is constitutional under the Trial Clause (Art I,
3, cl 6) was non-justiciable issue b/c the power to try all impeachments is textually
committed to Senate.
b. He meshes together a number of the parts together meshes textural argument with a lack
of judicially manageable or discoverable standards
i. Textural looks at text itself and the Article I language says the senate has the sole
power to try one for impeachment making non reviewable by the court
ii. Manageable Standards - However, the opinion continues and points to the various
definitions in dictionaries of the term to try says the court lacks any principled
standards to determine whether a judge has been properly tried under the
constitution
iii. Either of these could have been independent, but he uses both

G. Executive Violation of the separation of powers

Youngstown Sheet & Tube Co v. Sawyer (1952)
i. Korean War, ongoing dispute between steel workers who call a national strike. This can
affect the production of weapons necessary for the war. President Truman sees this
danger and seizes possession of the steel mills.
1. Executive Order: order or regulation issues by the president or an executive
agency, promulgated for the purpose of trying to interpret or implement some
Constitutional provision or some law or treaty. Presidents attempt to execute
the laws.
2. HERE the affect of the order was to seize private property and make them into
nationalized entities.
ii. (Q) Was President Truman acting within his Constitutional Power?
iii. (H) No. Nothing in Article II gives the President explicit authority to seize these Steel
Mills.
iv. (R) The Presidents power, if any, to issue an order must stem from an act of Congress or
the United States Constitution.
1. Justice Black (majority) draws quite a distinction between Executive and
Legislative power. There is a very formal distinction between their powers.
2. Justice Frankfurter (Concurrence)
3. Disagrees with Justice Blacks formalistic approach. Believes the powers are
more intertwined. Has a functionalist approach.
4. He would allow the President to act so long as there is nothing that expressly
prohibits him from acting.
5. Generally the Executive has certain inherent powers, so long as theyre not
explicitly negated.
6. He supports the majority decision because Congress explicitly spoke out against
this act with the Taft Hartley Act.
7.
for the future.
8. Tri-part division of Executive Powers:
9. 1. Express or implied authorization
10. Executive power at Maximum
11. 2. Absence of either a Congressional grant or denial of authority zone of
twilight
12. Look to Art. II for direction
13. President and Congress may have concurrent authority
14. 3. Measures incompatible with the express or implied will of Congress
15. Lowest authority
16. This is where the Presidents act in this case lies.
17. President Truman was acting incompatibly with Congress express will.
18. Functionalist approach to separation of powers
19. The President has at least some powers in the emergency context. Some
inherent powers although not unlimited.
20. Encourages Congress to place a check on this Emergency power.
H. Executive Powers, Privileges, and Immunity The Supreme Court of the United States ruled that the line-item veto as granted in the Line Item
Veto Act of 1996 violated the Presentment Clause of the United States Constitution because it

I.

impermissibly gave the President of the United States the power to unilaterally amend or repeal
parts of statutes that had been duly passed by the United States Congress. The bill must be
approved or rejected by the President in its entirety. Clinton v. NY
In some situations, Congress authorizes and appropriate funds for various programs but the
President impounds-refuses to send-the money. When congress has expressly directed that sums
be spent, the president has no constitutional power not to spend them. If congress does not
make such an explicit command to spend appropriated funds, Train appeared to agree that the
President could impound the funds. If the statute gives the President discretion to spend, no case
has rejected a Presidental Power.
Clinton v. City of New York (1998)
i. Return to Chadha Analysis against exec Prez cant law-make
ii. FACTS: Line item veto act enabled prez clinton to cancel/change certain spending items
of his own volition.
iii. HOLDING: Court invalidated federal line item veto act - Predictable based on Chada.
Same principal as Chada bicameral processes for creating law w/ line item veto,
prezs altered legislation qualifies as NEW law (different spending budgets, etc) the
Framers intentionally meant to withold the power to veto particular items (esp
expenditures) in particular legislation..
iv. NOTES: Why was the court divided if this was an obvious case?
1. The way the line item veto was enacted was a delegation
2. Delegation all delegations of the last 70 yrs have been permissible
3. How can we say that bicameral passage is only way to create law when
agencies create law all the time?
4. b/c agencies are acting under direct order from Congress to accomplish a
certain goal, and laws created under that premise are considered as getting
Congressional approval.
5. no delegation doctrine- agencies need specific doctrine outdated last 70 yrs
of delegation have been permissible.
6. Scalias argument- the cancellation permitted to prez under line item veto act is
same as permissible delegation lawmaking other than in specifically
prescribed for (via agency)
2. Field v. Clark (p 130)
a. Court upheld the constitutionality of the Tariff Act of 1890
i. The exercise of the suspension of power was contingent upon a condition that did
not exist when the tariff Act was passed.
ii. Under the tariff act, when the President determines that the contingency had
arisen, he had a duty to suspend.
iii. Whenever the President suspended an exemption under the tariff act, he was
executing the policy that Congress had embodied in the statute.
b. In the foreign affairs arena, the President has a degree of discretion and freedom from
statutory restrictions which would be admissible were domestic affairs alone are involved.
Foreign Affairs
U.S. v. Curtiss-Wright (1936)
i. Facts: Congress passed a Joint Resolution authorizing the President to ban the sales of
arms to countries involved in the border dispute between Bolivia and Paraguay. The
President immediately made an Executive Order banning such sales. The Defendant was

10

indicted for conspiracy to sell fifteen machine guns to Bolivia in violation of the Joint
Resolution and the Executive Order.
ii. Issue: Whether the joint resolution as applied to the situation, is vulnerable to attack
under the rule that forbids a delegation of the lawmaking power.
iii. Holding: The Court agreed that the President was allowed much room to operate in
executing the Joint Resolution; it found no constitutional violation. Making important
distinctions between internal and foreign affairs, Justice Sutherland argued because
"the President alone has the power to speak or listen as a representative of the nation,"
Congress may provide the President with a special degree of discretion in external
matters which would not be afforded domestically.
iv. Reasoning: The US Gov. has inherent powers when it comes to foreign/international
issues that is not proscribed in the constitution. It has inherent powers because it is a
state/gov according to international law. There is a fundamental difference in the role of
government in foreign affairs and domestic affairs. The federal government has both
constitutional and inherent authority to conduct foreign affairs as it sees fit. The
President is the United States sole representative to foreign nations. In order to achieve
the United States foreign policy aims, the President is better able than Congress to
judge conditions that exist in foreign nations and is afforded substantial discretion and
wide latititude in those decisions. The President has confidential information as well as
consular, diplomatic and foreign affairs officers to help in his decision.
Dames & Moore v. Regan (1981)
i. Facts: Iran hostage crisis. Deal worked out to return hostages. In exchange for the
hostages, Irans frozen funds in the US would be unfrozen AND any suits against Iran
would be dropped. All Iranian assets would be transferred to the Bank of England.
ii. (A) The Court uses Justice Jacksons framework.
iii. The Court has power under AEPA to allow second and third parts of agreement. The
harder issue is about the Presidents effort to suspend litigation.
iv. (H) Court upholds the Presidents efforts
v. Historical practice of Presidents suspending claims concurrent to settlement
agreementssupports broad executive discretion
vi. Congressional acquiescencethe President had this power because Congress never
questioned it before
vii. **In this case you see the Court willing to read in an ambiguous historical record,
congressional acquiescence. This is probably because we are in a foreign affairs context.
viii. Court wont do this in Youngstown Steel because of domestic context.
ix. Foreign affairs does not require reading this opinion in the absolute broadest sense.
Rather it is rooted in a very particular set of circumstances.
x. Executive Discretion in Times of War or Terrorism
xi. War Powers: The Constitution suggests the President and Congress share war powers.
xii. The dominant authority is vested in the legislaturedeclare war, finance defense.
xiii. President also has powersCommander in Chief, laws faithfully executed, use military
to protect national interest.
xiv. The President some say has an inherent power to defend the country against sudden
attack
xv. With war on terror Congress removed the need to answer the full scope of the
Presidents powers.

11

xvi. 9/11, 2002, War Powers Resolution

xvii. Suspension Clause: 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.
xviii. (executive agreement without statutory authorization having an effect on domestic
relations, president had the power to settle claims of the US against foreign government
through executive agreements) Congress has implicitly authorized the President to
suspend the claims of American citizens against foreign powers by its long history of
acquiescing to such Presidential conduct. The Court held that the International
Emergency Economic Powers Act constituted a specific congressional authorization for
the President to order the transfer of Iranian assets. The Court further held that
although the IEEPA itself did not authorize the presidential suspension of legal claims,
previous acts of Congress had "implicitly approved" of executive control of claim
settlement.

J.

Medellin v. Texas (2008)

i. Facts: Medellin argued that the Vienna Convention granted him an individual right that
state courts must respect, a possibility left open by the Supreme Court's 2006 decision
in Sanchez-Llamas v. Oregon. Medellin also cited a memorandum from the President of
the United States that instructed state courts to comply with the ICJ's rulings by
rehearing the cases. Medellin argued that the Constitution gives the President broad
power to ensure that treaties are enforced, and that this power extends to the
treatment of treaties in state court proceedings. The President had no authority to
order the enforcement in state court of an ICJ ruling, because that would imply a lawmaking power not allocated to him by the Constitution.
ii. Issue: Did the President act within his constitutional and statutory foreign affairs
authority when he determined that states must comply with the U.S. treaty obligation
under the Vienna Convention by enforcing a decision of the International Court of
Justice? Does the Constitution require state courts to honor the treaty obligation of the
U.S. by enforcing a decision of the International Court of Justice?
iii. Holding: The Court held that the signed Protocol of the Vienna Convention did not make
the treaty self- executing and, therefore, the treaty is not binding upon state courts until
it is enacted into law by Congress. Furthermore, Chief Justice Roberts characterized the
presidential memorandum as an attempt by the executive branch to enforce a non-self
executing treaty without the necessary Congressional action, giving it no binding
authority on state courts. U.S. Constitution does not require state courts to honor a
treaty obligation of the United States by enforcing a decision of the International Court
of Justice. The Vienna Convention provides that if a person detained by a foreign
country asks, the authorities of the detaining national must, without delay, inform the
consular post of the detainee of the detention.
Executive Privileges and Immunities
U.S. v. Nixon
i. Attempt to use executive immunity to block judicial branch
ii. FACTS: Nixon gets busted as a conconspirator in Watergate, subpoened to provide tapes
of private discussions b/w him and his cronies. He first tries to release limited, censored
versions of tapes and transcripts (18 min gaps) NIXON IS A SHADY MUTHAFUCKA.

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iii. Executive Priviledge Defense - Nixon tries to exert executive priviledge, citing that since
he is President he is ABOVE THE LAW (he has absolute privacy b/c he is Commander and
Chief).
iv. Also, since executive branch has absolute power to decide which cases to try and what
evidence to use, therefore Prez has final decision in what evidence to be brought in
crimc case.
v. Court responds by citing Marbury v. Madison is it the function of the Court to decide
what the law is. STERN doesnt find this a strong argument, as the court equated their
ability to interpret the law w/ some sort of of restriction on presidential power.
vi. Separation of Powers defense - Also, invokes separation of powers b/c matter was
between members of the executuive branch, and therefore was not subject to judiciary
interference.
vii. HOLDING: Give up the tapes asshole the judiciary and the appointed special
investigator and Constitutionally-based rights that override Presidential general right to
privacy w/o special excuse (national security secret, etc)
viii. BALANCING TEST OF BOTH SIDES
ix. Constitutionally-endowed rights of justice in criminal law proceeding is greater than
general Presidential privacy right and claimed right of priviledge.
x. NOTES
xi. Court acknowledges that Prez has qualified executive priviledge, esp concerning nation
defense while this is not laid out in Const, its structurally inferred from separation of
powers and Article 2.
xii. NIXONS EFFICIENCY ARGUMENT
xiii. that allowing everything said in Oval Office to go to the press would compromise candor
and efficiency of executive function court dmisses that argument, saying it wouldnt
effect communicative openness b/c judiciary will not
xiv. COURT PROTECTING JUDICAL POWER by not letting the Prez dictate what evidence we
can and cannot hear.
xv. SCARCITY OF OTHER EVIDENCE
xvi. If special prosecutors couldnt get their hands on the tapes, there are no other sources
of evidence i.e. no case. Also, need for evidence in criminal suit is greater than that in
civil suit (b/c of higher degree of proof necessary).
xvii. see insider trading example with Attorney General in notes
xviii. COURTS AND OVERRIDING EXECUTIVE PRIVILEDGE while in this case P attempted and
overcame exec privileged, in other
Clinton v. Jones (1997)
i. Facts: Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an
Arkansas state employee, she suffered several "abhorrent" sexual advances from then
Arkansas Governor Clinton. Jones claimed that her continued rejection of Clinton's
advances ultimately resulted in punishment by her state supervisors. Following a District
Court's grant of Clinton's request that all matters relating to the suit be suspended,
pending a ruling on his prior request to have the suit dismissed on grounds of
presidential immunity, Clinton sought to invoke his immunity to completely dismiss the
Jones suit against him. While the District Judge denied Clinton's immunity request, the
judge ordered the stay of any trial in the matter until after Clinton's Presidency. On
appeal, the Eighth Circuit affirmed the dismissal denial but reversed the trial deferment

13

ruling since it would be a "functional equivalent" to an unlawful grant of temporary

presidential immunity.
ii. Issue: Is a serving President, for separation of powers reasons, entitled to absolute
immunity from civil litigation arising out of events which transpired prior to his taking
office?
iii. Holding: No. In a unanimous opinion, the Court held that the Constitution does not
grant a sitting President immunity from civil litigation except under highly unusual
circumstances. After noting the great respect and dignity owed to the Executive office,
the Court held that neither separation of powers nor the need for confidentiality of
high-level information can justify an unqualified Presidential immunity from judicial
process. While the independence of our government's branches must be protected
under the doctrine of separation of powers, the Constitution does not prohibit these
branches from exercising any control over one another. This, the Court added, is true
despite the procedural burdens which Article III jurisdiction may impose on the time,
attention, and resources of the Chief Executive.
K. Legislative Authority
INS v. Chadha (1983)
i. AG suspended deportation of a Kenyan national pursuant to the Immigration and
Nationality Act
ii. (Q) Has what Congress has done, in light of these delegations, permissible?
iii. (A) Under the One House Veto, one house can overturn a decision that had been
delegated to the AG. This is an action that is legislative in nature. The Constitution
outlines what Congress must do in their legislative capacity
iv. Chief Justice Burger is following a formalistic approach in that he supports each branchs
specific roles.
v. The House as overriding an executive action (AG) with an action that is legislative in
nature.
vi. Concerned about checks and balances.
vii. Burger sees clear distinctions between executive and legislative authority.
viii. (H) Found the One House Veto to be Unconstitutional because neither Bicameralism or
Presentment requirements were satisfied.
ix. Concurrence: Unconstitutional NOT because action was legislative in nature but rather
because Congress attempted to adopt actions that were judicial in nature (deciding
Chadhas situation did not satisfy certain criteria).
x. Dissenting: Very functionalist in his understanding of separation of powers. We must
be more flexible in this modern world. In truth the branches are undertaking many
roles that overlap with one another. Is B and P required in pursuance of an already
passed law?
xi.
Bowsher v. Synar (1986)
i. Cong infringing into Exec again Difft Approach from Chadha
ii. FACTS: Graham Redner Act an attempt to eliminate federal budget deficit. Stop Me
before I Kill Again methodology- provides mechanism that allows for across the board
spending cuts every time the budget exceeds specified levels. i.e. ceiling is 250 billion,
actual spending is 270 billion 20 billion of so called automatic cuts.Comptroller
general figures out WHERE the cuts should occur

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1.

Therefore, Comptroller General determines what budget deficit actually is

this kind of calculation is NOT objective there is much subjective analysis
(projections, estmiations, etc). Its the Comptroller Generals role in this case
that dooms the bill.
iii. HOLDING: Court rules that what the Comptroller General is doing is executing the
provisions of the Graham Act, and because hes a part of the legislative branch he cant
interfere with executive functions legislative branch cant infringe into executive
branch powers.
iv. Congress trying to take shortcut through Constitutional methods represents
Congressional overreaching of power into executive branch.
v. NOTES: Court is adopting a strict formalistic categorical approach (i.e. Carter,
Hammercd) classifying Comp. Gen. as a legislative officer, and sharply dividing the
functions of the branches so that its UNCONST under separation of pwrs
1. Congress is having its officer both write and execute the law, and under
separation of powers that cannot happen
vi. BOWSHER UNDER CHADA ANALYSIS
1. Court would say, What youre really doing is rewriting the law Comp General
is rewriting the budget and when you are creating federal policy you need
bicameral passage Stern thinks it would be a reasonable opinion.
2. STERN: The Act would have been ok if the Prez had chosen the Comp Gen b/c it
is a position w/ exectuive power and can only be nominated by an executive
officer
3. Untitary Executive theory is that the constitution created the position as one
to be given to a sngle person all executive power should be vested in the
president
4. if someone was to adhere to these theory then they would not allow the act
regardless of who had delegated the power a legislative officer cannot act as
an executive officer.
Morrison v. Olson (1988)
i. Facts: The Ethics in Government Act of 1978 created a special court and empowered the
Attorney General to recommend to that court the appointment of an "independent
counsel" to investigate, and, if necessary, prosecute government officials for certain
violations of federal criminal laws. The Act provides that the independent counsel can
be removed from office only by impeachment or by personal action of the Attorney
General for good cause, physical disability, mental incapacity, or other conditions that
impair performance.
ii. Issue: Did the Act violate the constitutional principal of separation of powers under
article III
iii. Holding: No. The Court of Appeals, which invalidated the Act, is reversed.
iv. Reasoning: the Appointments Clause, reads the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper . . . in the courts of Law . . . .
Art II. This language seems to clearly give Congress the power to vest the appointment
of an executive official in the courts of Law. Thus, Congress is authorized to make
interbranch appointments.
1. Because the miscellaneous powers granted to the Special Division are mostly
either passive of ministerial, the Act poses no Art III difficulty concerning

15

judicial intrusion into matters that are more properly within the Executives
authority.
2. Theres no separation of powers problem with regard to the Act because the
statute (1) appropriately puts the removal power in the hands of the Executive
Branch: an independent counsel may only be removed by the Attorney General
for good cause and (2) does not impermissibly interfere with the functions of
the Executive Branch.
Free Enterprise Fund v. Pcaob (2010)
i. Facts: The Free Enterprise Fund, a non-profit organization, brought suit challenging the
constitutionality of Title I of the Sarbanes-Oxley Act. It alleged that the creation of the
Public Company Oversight Board (the Board) by the Act violated the Appointments
Clause because it deprived the President from exercising adequate control over the
Board. The U.S. Court of Appeals for the D.C. Circuit held that the creation of the Public
Company Accounting Oversight Board did not violate either the Appointments Clause or
the separation of powers principle. It reasoned that the Boards members were inferior
officers under the supervision of the SEC and thus were not obligated to be appointed
by the President. Also, the court noted that the Presidents ability to remove members
of the SEC, who in turn could remove members of the Board, preserved the
Constitutions separation of powers.
ii. Issue: 1) Does the Sarbanes-Oxley Act violate the the separation of powers doctrine
by giving broad powers to the Board while simultaneously preventing the President of
the power to appoint or remove Board members?
1. 2) Did the court of appeals correctly hold that the Board members were inferior
officers under the direct supervision of the SEC even though the SEC cannot
supervise those members individually and can only remove them for just
cause?
2. 3) Does the Sarbanes-Oxley Act violate the Appointments Clause even if the
Boards members are inferior because the SEC is not an official department or
because the commissioners are not the head of the SEC?
iii. Holding: Yes. Yes. Not answered. The Supreme Court held that the "for-cause" limitation
on the removal of Board members is unconstitutional because it contravenes the
Constitution's separation of powers.
iv. Reasoning: the Court reasoned because the Act protects Board members from removal
except for good cause, but withdraws from the President any decision on whether good
cause exists, the Act deprives the President the power to hold Board members
accountable. Such an arrangement contradicts Article II's vesting of the executive power
in the president. The Court further held that the unconstitutionality of the removal
provision did not make unconstitutional the entire Board. The Court concluded that the
Board may continue to function as before, but its members may be removed at will by
the Commission. Lastly, the Court held that the Board's appointment is consistent with
the Appointments Clause of the Constitution. The Court reasoned that Board members
are inferior officers, and, thus, their appointment may permissibly be vested in the
"Head of the Department." Here, the Commission constitutes the "Head of the
Department."

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L.

Congress Article I Power and their Limits

All legislative Power herein granted Shall be vested in a Congress of the U.S. which shall consist
of a Senate and House of Representatives

Basic framework of Congress Powers: The Necessary and Proper Clause:

Congress has the power to make laws which shall be necessary and proper for carrying into
execution the foregoing Powers, and all other Powers vested by this constitution in the
government of the U.S or in any department or Office thereof.

McCulloch v. Maryland (1819)

o Facts: Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not
chartered by the state. The statute provided that all such banks were prohibited from issuing
bank notes except upon stamped paper issued by the state. The statute set forth the fees to
be paid for the paper and established penalties for violations. The Second Bank of the United
States was established pursuant to an 1816 act of Congress. McCulloch, the cashier of the
Baltimore branch of the Bank of the United States, issued bank notes without complying
with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the
Maryland statute and McCulloch contested the constitutionality of that act. The state court
found for Maryland and McCulloch appealed.
o Issue: Does Congress have the power under the Constitution to incorporate a bank, even
though that power is not specifically enumerated within the Constitution? Does the State of
Maryland have the power to tax an institution created by Congress pursuant to its powers
under the Constitution?
o Holding: J. Marshall Yes. Congress has power under the Constitution to incorporate a bank
pursuant to the Necessary and Proper clause (Article I, section 8). No. The State of Maryland
does not have the power to tax an institution created by Congress pursuant to its powers
under the Constitution.
o Reasoning: The Government of the Union, though limited in its powers, is supreme within its
sphere of action, and its laws, when made in pursuance of the Constitution, form the
supreme law of the land. There is nothing in the Constitution which excludes incidental or
implied powers. If the end be legitimate, and within the scope of the Constitution, all the
means which are appropriate and plainly adapted to that end, and which are not prohibited,
may be employed to carry it into effect pursuant to the Necessary and Proper clause. The
power of establishing a corporation is not a distinct sovereign power or end of Government,
but only the means of carrying into effect other powers which are sovereign. It may be
exercised whenever it becomes an appropriate means of exercising any of the powers
granted to the federal government under the U.S. Constitution. If a certain means to carry
into effect of any of the powers expressly given by the Constitution to the Government of
the Union be an appropriate measure, not prohibited by the Constitution, the degree of its
necessity is a question of legislative discretion, not of judicial cognizance. The Bank of the
United States has a right to establish its branches within any state. The States have no
power, by taxation or otherwise, to impede or in any manner control any of the
constitutional means employed by the U.S. government to execute its powers under the
Constitution. This principle does not extend to property taxes on the property of the Bank of

17

the United States, nor to taxes on the proprietary interest which the citizens of that State
may hold in this institution, in common with other property of the same description
throughout the State.

Jefferson County, Ala v. Acker (1999)

o A States taxation of federal employees salaries is permissible if the tax was not directly
imposed on one sovereign entity by another and was not discriminatory

United States v. Comstock (2010)

o Facts: Convicted sex offenders moved to dismiss petitions requesting their indefinite civil
commitment under the Adam Walsh Child Protection and Safety Act. A North Carolina
federal district court dismissed the petitions. On appeal, the U.S. Court of Appeals for the
Fourth Circuit affirmed. It held that the Protection and Safety Act exceeded the scope of
Congress' authority when it enacted a law that could confine a person solely because of
"sexual dangerousness," and the government need not even allege that this
"dangerousness" violated any federal law.
o Issue: Did Congress have the constitutional authority to enact the Adam Walsh Protection
and Safety Act?
o Holding: Yes. The Supreme Court held that the Necessary and Proper Clause grants Congress
authority sufficient to enact the Adam Walsh Protection and Safety Act.
o Reasoning: 1) the Necessary and Proper Clause grants broad authority. (2) The Court
recognized that Congress has long delivered mental health care to federal prisoners. (3)
Congress had good reason to pass the statute as it has the power to protect nearby
communities from the danger prisoners may pose. (4) The Tenth Amendment does not
reserve a zone of authority to the states in this context. (5) The Court recognized that the
statute was narrow in scope and did not confer on Congress a general police power, which is
reserved to the states.
Kennedy wrote separately, concurring in the judgment. He maintained that
authority under the Necessary and Proper Clause is dependent upon the "strength
of the chain" from Congressional action and its enumerated power, not on the
number of "links in the chain." Justice Samuel A. Alito also wrote separately,
concurring in the judgment. He cautioned that the majority opinion should not be
construed as granting an unlimited ability by Congress to extend its power.

The Commerce Clause Power

Congress was given the power to regulate commerce so that national commercial interest might
prevail over local protectionist factions.

Classical View of the Commerce Power

Gibbons v. Ogden (1824)
Facts: New York granted Robert R. Livingston and Robert Fulton the exclusive right
of steam boat navigation on New York state waters. Livingston assigned to Ogden
the right to navigate the waters between New York City and certain ports in New
Jersey.

18

Ogden (P) brought this lawsuit seeking an injunction to restrain Gibbons (D) from
operating steam ships on New York waters in violation of his exclusive privilege.
Ogden was granted the injunction and Gibbons appealed, asserting that his
steamships were licensed under the Act of Congress entitled An act for enrolling
and licensing ships and vessels to be employed in the coasting trade and fisheries,
and for regulating the same. Gibbons asserted that the Act of Congress superseded
the exclusive privilege granted by the state of New York.
The Chancellor affirmed the injunction, holding that the New York law granting the
exclusive privilege was not repugnant to the Constitution and laws of the United
States, and that the grants were valid. Gibbons appealed and the decision was
affirmed by the Court for the Trial of Impeachments and Correction of Errors, the
highest Court of law and equity in the state of New York. The Supreme Court
granted certiorari.
Issue: May a state enact legislation that regulates a purely internal affair regarding
trade or the police power, or is pursuant to a power to regulate interstate
commerce concurrent with that of Congress, which confers a privilege inconsistent
with federal law? Do states have the power to regulate those phases of interstate
commerce which, because of the need of national uniformity, demand that their
regulation, be prescribed by a single authority? Does a state have the power to
grant an exclusive right to the use of state waterways inconsistent with federal law?
Holding: No. A state may not legislation inconsistent with federal law which
regulates a purely internal affair regarding trade or the police power, or is pursuant
to a power to regulate interstate commerce concurrent with that of Congress.
a. No. States do not have the power to regulate those phases of interstate
commerce which, because of the need of national uniformity, demand that
their regulation, be prescribed by a single authority.
b. No. A state does not have the power to grant an exclusive right to the use
of state navigable waters inconsistent with federal law.
Reasoning: The laws of New York granting to Robert R. Livingston and Robert Fulton
the exclusive right of navigating state waters with steamboats are in collision with
the acts of Congress. The acts of Congress under the Constitution regulating the
coasting trade are supreme. State laws must yield to that supremacy, even though
enacted in pursuance of powers acknowledged to remain in the States. A license,
such as that granted to Gibbons, pursuant to acts of Congress for regulating the
coasting trade under the Commerce Clause of Article I confers a permission to carry
on that trade.
The power to regulate commerce extends to every type of commercial intercourse
between the United States and foreign nations and among the States. The
commerce power includes the regulation of navigation, including navigation
exclusively for the transportation of passengers. It extends to vessels propelled by
steam or fire as well as to wind and sails.
The power to regulate commerce is general, and has no limitations other than
those prescribed in the Constitution itself. It is exclusively vested in Congress and no
part of it can be exercised by a State.

19

While the commerce power does not stop at the external boundary of a State, it
does not extend to commerce which is completely internal. State inspection laws,
health laws, and laws for regulating transportation and the internal commerce of a
State fall within the state police power and are not within the power granted to
Congress.

The Commerce Clause After the New Deal

o Wickard v. Filburn (1942)
Facts: The Agriculture Adjustment Act of 1938 (AAA) set quotas on the amount of
wheat put into interstate commerce and established penalties for overproduction.
The goal of the Act was to stabilize the market price of wheat by preventing
shortages or surpluses. Filburn (P) sold part of his wheat crop and used the rest for
his own consumption. The amount of wheat Filburn produced for his own
consumption combined with the amount he sold exceeded the amount he was
permitted to produce.
Secretary of Agriculture Wickard (D) assessed a penalty against him.
Filburn refused to pay, contending that the Act sought to limit local
commercial activity and therefore was unconstitutional because it
exceeded the scope of Congresss power under the Commerce Clause.
Filburn brought this lawsuit seeking to enjoin enforcement of the Act and a
declaratory judgment that the wheat marketing provisions of the AAA
were unconstitutional for exceeding the scope of Congresss commerce
power. The court below, a district court panel of three judges, entered
judgment for Filburn and the Supreme Court granted cert.
Issue: Can Congress regulate the production of wheat intended for personal use and
not placed in interstate commerce? Can Congress regulate trivial local, intrastate
activities that have an aggregate effect on interstate commerce via the commerce
power?
Holding: yes. Congress can regulate the production of wheat intended for personal
use and not placed in interstate commerce.
Yes. Congress can regulate trivial local, intrastate activities that have an
aggregate effect on interstate commerce via the commerce power, even if
the effect is indirect.
Reasoning: The wheat marketing quota and attendant penalty provisions of the
AAA, even when applied to wheat not intended in any part for commerce but
wholly for consumption on the farm, are within the commerce power of Congress.
The power to regulate interstate commerce includes the power to regulate
commodity prices and practices affecting them.
The effect of the AAA is to restrict the amount of wheat which may be
produced for market and the extent to which one may avoid resorting to
the market by producing for his own needs. That the production of wheat
for consumption on the farm may be trivial in some cases is not enough to
remove the grower from the scope of federal regulation where the
aggregate effect of such behavior by many others is far from trivial.
Wheat grown for home consumption is a factor with great volume and
variability and it would have a substantial influence on price conditions.

20

When prices are high the wheat may flow into the market and check price
increases. Furthermore wheat grown for personal consumption supplies
the need of the grower who would otherwise purchase wheat in the open
market.
o

United States v. Darby

Sustained federal power to regulate production of goods for commerce

U.S. v. E. C. Knights Co.

Sustained the exercise of national power over intrastate activity
commerce among the states is not a technical legal conception, but a practical
one, drawn from the course of business. (Swift & Co. v. U.S.)

Shreveport Rate Cases

Railroad rates of an admittedly interstate character and fixed by authority of the
state might, nevertheless, be revised by the federal government because of the
economic effect which they had upon the interstate commerce.
Federal intervention is constitutionally authorized because it has a close and
substantial relationship to interstate traffic that the control is essential or
appropriate to the security of that traffic, to the efficiency of the interstate service,
and to the maintained of the conditions under which commerce may be conducted
upon fair terms and without molestation of hindrance

NLRB v. Jones & Laughlin Steel Corp. (1937)

Whether the National Labor Relations Act exceeded the commerce power?
Court looked at the application of statute
Court looked at huge steel companies involved in interstate commerce and fund
that the statute could properly be applied to the company under the authority of
the Commerce Clause.

Heart of Atlanta Motel v. United States (1964)

o Facts: The Heart of Atlanta motel was a large hotel in Atlanta, Georgia, which
refused to rent rooms to African Americans. The owner of the hotel filed a suit in
federal court, arguing that the requirements of the Civil Rights Act violated his Fifth
Amendment right to choose customers and operate his business as he wanted
resulted in unjust deprivation of his property without due process of law and just
compensation. the United States countered that Congress, under the United States
Constitutions Commerce Clause, was certainly within its power to address such
provisions. In addition, the decision of Heart of Atlanta Motel v. United States
stated that the Fifth Amendment does not forbid regulations of interstate
commerce and incidental damage did not constitute the taking of property
without due process of law or just compensation.
o Issue: Whether Section 201(a), (b), (1) and (c) of the Civil Rights Act is
constitutional.

21

o
o

Holding: Yes,
Reasoning:

Article I, Section 8, of the Constitution provides: "Clause 1: The Congress

shall have Power * * * Clause 3: To regulate Commerce with foreign
Nations, and among the several States, and with the Indian tribes;" and
Clause 18 "To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers
United States v. Darby "The power of Congress over interstate commerce
is not confined to the regulation of commerce among the states. It extends
to those activities intrastate which so affect interstate commerce or the
exercise of the power of Congress over it as to make regulation of them
appropriate means to the attainment of a legitimate end, the exercise of
the grant of power of Congress to regulate interstate commerce.
The action of the Congress in the adoption of the Act applied here to a
motel which concededly serves interstate travelers, is within the power
granted it by the Commerce Clause

United States v. Lopez (1995)

o Facts: The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any
individual knowingly to possess a firearm at a place that he knew or had reasonable
cause to believe was a school zone. Alfonso Lopez, Jr. (D), a 12th-grade student,
carried a concealed and loaded handgun into his high school and was arrested and
charged under Texas law with firearm possession on school premises. The next day,
the state charges were dismissed after federal agents charged Lopez with violating
the Act.The District Court denied Lopezs motion to dismiss the indictment,
concluding that the GFSZA was a constitutional exercise of Congress power
pursuant to the Commerce Clause of Article I. The Fifth Circuit reversed, holding
that the Act exceeded Congress power under the Commerce Clause and was
therefore unconstitutional. The Supreme Court granted cert.
o Issue: Does the GFSZA exceed Congress authority under the Commerce Clause?
What categories of activity may Congress regulate under its commerce power?
o Holding: Yes. The GFSZA exceeded Congress authority under the Commerce Clause.
o Reasoning: The three broad categories of activity that Congress may regulate under
its commerce power are: a) the use of the channels of interstate commerce; b)
Congress is empowered to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities; and c) Congress commerce authority
includes the power to regulate those activities having a substantial relation to
interstate commerce, i.e., those activities that substantially affect interstate
commerce.
The Supreme Court held that the GFSZA exceeded Congress Commerce
Clause authority. The possession of a gun in a local school zone is in no
sense an economic activity that might, through repetition elsewhere, have
a substantial effect on interstate commerce. The section in question is a

22

criminal statute that by its terms has nothing to do with commerce or

any sort of economic enterprise. Nor is it an essential part of a larger
regulation of economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated. It cannot, therefore,
be sustained under the Courts cases upholding regulations of activities
that arise out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate commerce.
The statute contains no jurisdictional element which would ensure that the
firearms possession in question has the requisite nexus with interstate
commerce. Lopez was a student at a local school; there is no indication
that he had recently moved in interstate commerce, and there is no
requirement that his possession of the firearm have any concrete tie to
interstate commerce.
Neither the Act itself nor its legislative history expresses congressional
findings regarding the effects of gun possession in a school zone on
interstate commerce. To uphold the Governments contention that the Act
is justified because firearms possession in a local school zone does indeed
substantially affect interstate commerce would require this Court to pile
inference upon inference in a manner that would convert congressional
Commerce Clause authority to a general police power of the sort held only
by the States.
ALA Schechter Poultry Corp v. United States (1935)
o Court struck down regulations that fixed the hours and wages of individuals
employed by an interastate business because the activity being regulated related to
interstate commerce only indirectly
o Activities that effect interstate commerce directly are within the Congresses Power
o Indirectly are beyond their powers
NLRB v. Jones & Laughlin Steel Corp (1937)
o Got rid of direct and indirect effect principle
U.S. v Bass (1971)
o Issue: Whether the Omnibus Crime Control and Safe Streets Act of 1968 applied to
merely the possession or receiving of firearms without a nexus to interstate
commerce demonstrated.
o Holding: Since the statute was criminal in nature, such a broad reading as the
government asserted would be too intrusive to the police powers of the states. In
the absence of clear direction of Congressional intent to do so, the court would not
construe the statute so broadly as to not require a showing of nexus with
commerce.
Heart of Atlanta Motel v. United States (1964)
o Facts: Prior to passage of the Civil Rights Act of 1964 (the Act), the Appellant, Heart
Atlanta Motel, Inc. (Appellant) operated a motel which refused accommodations to
blacks. Appellant intended to continue this behavior to challenge Congress
authority to pass the Act. Heart of Atlanta Motel had 216 rooms available to
transient guests and had historically rented rooms only to white guests. Appellant
solicits business from outside the State of Georgia through advertising in national
travel magazines and other media. Approximately 70% of its guests are from

23

outside the state. Appellant contends that Congress has overreached its authority
under the Commerce Clause in enacting the Act
o Issue: May Congress prohibit racial discrimination in hotel lodging under the
Commerce Clause?
o Holding: Yes. Appeals court ruling affirmed.
Congress heard testimony from many sources describing the hardships blacks face
in securing transient accommodations throughout the United States. With an
increasingly mobile populace, this brought increasing difficulties to many United
States citizens. It does not matter that Congress was addressing a moral issue (see
the dissent in Hammer v. Dagenhart, 247 U.S. 251 (1918) and the Supreme Court of
the United States (Supreme Court) opinion in Darby, 312 U.S. 100 (1941). What the
Supreme Court is examining is Congress power to enact the legislation, not the
impetus behind the Act. Concurrence. Justice William Douglas (J. Douglas) concurs
in the judgment, but he is uneasy resting the decision on the Commerce Clause,
rather than Section: 5 of the Fourteenth Amendment of the United States
Constitution (Constitution). He feels that it is more appropriate to rest civil rights
legislation on the constitutional status of the individual, than the impact on
commerce. The Court held that the Commerce Clause allowed Congress to regulate
local incidents of commerce, and that the Civil Right Act of 1964 passed
constitutional muster. The Court noted that the applicability of Title II was "carefully
limited to enterprises having a direct and substantial relation to the interstate flow
of goods and people. . ." The Court thus concluded that places of public
accommodation had no "right" to select guests as they saw fit, free from
governmental regulation.
United States v. Lopez (1995)
o Facts: The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any
individual knowingly to possess a firearm at a place that he knew or had reasonable
cause to believe was a school zone. Alfonso Lopez, Jr. (D), a 12th-grade student,
carried a concealed and loaded handgun into his high school and was arrested and
charged under Texas law with firearm possession on school premises. The next day,
the state charges were dismissed after federal agents charged Lopez with violating
the Act. The District Court denied Lopezs motion to dismiss the indictment,
concluding that the GFSZA was a constitutional exercise of Congress power
pursuant to the Commerce Clause of Article I. The Fifth Circuit reversed, holding
that the Act exceeded Congress power under the Commerce Clause and was
therefore unconstitutional. The Supreme Court granted cert.
o Issue: Does the GFSZA exceed Congress authority under the Commerce Clause?
What categories of activity may Congress regulate under its commerce power?
o Holding: Yes. The GFSZA exceeded Congress authority under the Commerce Clause.
o The three broad categories of activity that Congress may regulate under its
commerce power are: a) the use of the channels of interstate commerce; b)
Congress is empowered to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities; and c) Congress commerce authority
includes the power to regulate those activities having a substantial relation to

24

interstate commerce, i.e., those activities that substantially affect interstate

commerce.
o The Supreme Court held that the GFSZA exceeded Congress Commerce Clause
authority. The possession of a gun in a local school zone is in no sense an economic
activity that might, through repetition elsewhere, have a substantial effect on
interstate commerce. The section in question is a criminal statute that by its terms
has nothing to do with commerce or any sort of economic enterprise. Nor is it an
essential part of a larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated. It cannot,
therefore, be sustained under the Courts cases upholding regulations of activities
that arise out of or are connected with a commercial transaction, which viewed in
the aggregate, substantially affects interstate commerce.
The statute contains no jurisdictional element which would ensure that the
firearms possession in question has the requisite nexus with interstate
commerce. Lopez was a student at a local school; there is no indication
that he had recently moved in interstate commerce, and there is no
requirement that his possession of the firearm have any concrete tie to
interstate commerce.
Neither the Act itself nor its legislative history expresses congressional
findings regarding the effects of gun possession in a school zone on
interstate commerce. To uphold the Governments contention that the Act
is justified because firearms possession in a local school zone does indeed
substantially affect interstate commerce would require this Court to pile
inference upon inference in a manner that would convert congressional
Commerce Clause authority to a general police power of the sort held only
by the States.
ALA Schechter Poultry Corp. v. United States (1935)
o Court struck down regulations that fixed the hours and wages of individuals
employed by an intrastate business because the activity being regulated to
intrastate commerce only indirectly.
U.S. v. Morrison (2000)
o Facts: The Respondent, Morrison (Respondent), was sued under part of the
Violence Against Women Act of 1994 (Act), which penalized crimes of violence
motivated by gender. Now Respondent argues this section of the Act is beyond the
scope of Congress power to regulate commerce. In 1994, while enrolled at Virginia
Polytechnic Institute (Virginia Tech), Christy Brzonkala alleged that Antonio
Morrison and James Crawford, both students and varsity football players at Virginia
Tech, raped her. In 1995, Brzonkala filed a complaint against Morrison and
Crawford under Virginia Tech's Sexual Assault Policy. After a hearing, Morrison was
found guilty of sexual assault and sentenced to immediate suspension for two
semesters. Crawford was not punished. A second hearing again found Morrison
guilty. After an appeal through the university's administrative system, Morrison's
punishment was set aside, as it was found to be "excessive." Ultimately, Brzonkala
dropped out of the university. Brzonkala then sued Morrison, Crawford, and
Virginia Tech in Federal District Court, alleging that Morrison's and Crawford's
attack violated 42 USC section 13981, part of the Violence Against Women Act of

25

1994 (VAWA), which provides a federal civil remedy for the victims of gendermotivated violence. Morrison and Crawford moved to dismiss Brzonkala's suit on
the ground that section 13981's civil remedy was unconstitutional. In dismissing the
complaint, the District Court found that that Congress lacked authority to enact
section 13981 under either the Commerce Clause or the Fourteenth Amendment,
which Congress had explicitly identified as the sources of federal authority for it.
Ultimately, the Court of Appeals affirmed.
o Issue: Does Congress have the authority to enact the Violence Against Women Act
of 1994 under either the Commerce Clause or Fourteenth Amendment?
o Holding: the Court held that Congress lacked the authority to enact a statute under
the Commerce Clause or the Fourteenth Amendment since the statute did not
regulate an activity that substantially affected interstate commerce nor did it
redress harm caused by the state. Chief Justice Rehnquist wrote for the Court that
[i]f the allegations here are true, no civilized system of justice could fail to provide
[Brzonkala] a remedy for the conduct of...Morrison. But under our federal system
that remedy must be provided by the Commonwealth of Virginia, and not by the
United States." Dissenting, Justice Stephen G. Breyer argued that the majority
opinion "illustrates the difficulty of finding a workable judicial Commerce Clause
touchstone." Additionally, Justice David H. Souter, dissenting, noted that VAWA
contained a "mountain of data assembled by Congress...showing the effects of
violence against women on interstate commerce."
Gonzales v. Raich (2005)
o Facts: In 1996 California voters passed the Compassionate Use Act, legalizing
marijuana for medical use. California's law conflicted with the federal Controlled
Substances Act (CSA), which banned possession of marijuana. After the Drug
Enforcement Administration (DEA) seized doctor-prescribed marijuana from a
patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney
General John Ashcroft in federal district court.
o The medical marijuana users argued the Controlled Substances Act - which
Congress passed using its constitutional power to regulate interstate commerce exceeded Congress' commerce clause power. The district court ruled against the
group. The Ninth Circuit Court of Appeals reversed and ruled the CSA
unconstitutional as it applied to intrastate (within a state) medical marijuana use.
Relying on two U.S. Supreme Court decisions that narrowed Congress' commerce
clause power - U.S. v. Lopez (1995) and U.S. v. Morrison (2000) - the Ninth Circuit
ruled using medical marijuana did not "substantially affect" interstate commerce
and therefore could not be regulated by Congress.
o Issue: Does the Controlled Substances Act (21 U.S.C. 801) exceed Congress' power
under the commerce clause as applied to the intrastate cultivation and possession
of marijuana for medical use?
o Holding: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held
that the commerce clause gave Congress authority to prohibit the local cultivation
and use of marijuana, despite state law to the contrary. Stevens argued that the
Court's precedent "firmly established" Congress' commerce clause power to
regulate purely local activities that are part of a "class of activities" with a
substantial effect on interstate commerce. The majority argued that Congress could

26

ban local marijuana use because it was part of such a "class of activities": the
national marijuana market. Local use affected supply and demand in the national
marijuana market, making the regulation of intrastate use "essential" to regulating
the drug's national market. The majority distinguished the case from Lopez and
Morrison. In those cases, statutes regulated non-economic activity and fell entirely
outside Congress' commerce power; in this case, the Court was asked to strike
down a particular application of a valid statutory scheme.
NFIB v Sebelius (2012)
o Facts: Congress passed The Patient Protection and Affordable Care Act (PPACA)
known as Obamacare. The law requires individual citizens not covered by a
corporate plan, Medicare, Medicaid, or a government sponsored plan to buy into a
federally approved plan or face a penalty imposed by the federal government. The
law creates a health insurance exchange at each state level, where individual
consumers and corporations offering healthcare can compare their rates with other
plans and potentially purchase such plans, with a government subsidy in certain
cases. Low income individuals and families at a particular rate of poverty may
purchase within these exchanges and receive such a subsidy if they purchase within
the exchange. The law also establishes minimum standards for health insurance
policies.
o Issue: 1) Whether Congressional law that requires states to choose between
complying with the Patient Protection and Affordable Care Act or loss of federal
funding for Medicaid is constitutionally valid; and
(2) Whether, Congressional law requiring all citizens to obtain health
insurance or pay a penalty is unconstitutional
o Holding: 1) Yes, this provision violates the 10th amendment through the provision
that withdraws all Medicaid funding unless the state adheres to the parameters of
the Acts Medicaid expansion program. The court stated that while such a
mechanism is unconstitutional, the correct solution for the court is to redact such a
penalty, thereby giving states a choice as to whether they want to create the
exchange without the threat of Medicaid funding being lost. The court held that
the grant withholding provision was unconstitutionally coercive. He wrote that the
threat of withdraw of 10% of funds which make up a states budget represents a
gun to head scenario for states.
o (2) No. The Act is not justified under the commerce clause. The court has never
permitted congress to use its power to regulate interstate commerce so as to
mandate the purchase of a particular product. He noted that in order for congress
to regulate interstate commerce, there must be something to regulate. The Act
creates commerce, essentially, by regulating inactivity into activity; it summons or
creates commerce.
o The court looks at the tax and used the substance and application test to
determine whether it met the parameters necessary to fall under the taxing and
spending clause. Finding that it did meet such a definition, recognizing that the fine
is imposed by the IRS and levied on individual taxpayers through their income
taxes. Moreover, the fine is collected by the Treasury and produces revenue for the
government. The individual mandate is much more a tax than a penalty, according
to the court. The court interpreted a penalty to mean a fine imposed on unlawful

27

conduct. Because the individual mandate leaves consumers with a rational choice
between fine or payment, it can hardly be seen as a penalty. As an aside, the
court also held that it was not a direct tax imposed equally on all individuals and
therefore neednt be struck down due to lack of apportionment among the
states.
o The court held that the notion of taxing inactivity is a legitimate power of
Congress. This did not create a limitless taxing power, according to the court,
because the court would not support such a tax that was so severe as to be
putative. The attendant law was not putative, as it gave citizens a reasonable
and rational choice between activity or inactivity. The court did not clarify at what
point a tax on inactivity becomes putative as opposed to remaining a rational
choice.
SOUTH DAKOTA V. DOLE (1987)
o FACTS: South Dakota permits persons over 19 to purchase beer containing up to
3.2% alcohol. In 1984, Congress enacted 23 U.S.C. 158, which directs the Secretary
of Transportation to withhold a percentage of federal highway funds otherwise
allocable from States "in which the purchase or public possession . . . Of any
alcoholic beverage by a person who is less than twenty-one years of age is lawful."
o ISSUE: Does Congress have the ability to place conditions on grants to state and
local governments? Does 158 violate the constitutional limitations on
congressional exercise of spending power and violate the 21st Amendment
o HOLDING: Congress has the ability to place conditions on grants to state and local
governments as long as:
The exercise of the spending power is in pursuit of "the general welfare";
The conditions are unambiguous;
The conditions are related to the federal interest or goal of a particular
project or program;
Does not violate any other constitutional doctrines.
o REASONING: Congress may attach conditions on the receipt of federal funds.
However, there are some conditions: First, it must be in pursuit of the general
welfare. Here, courts should defer substantially to the judgment of Congress.
Second, the condition must be unambiguous and allow the states to exercise their
choice cognizant of the consequences of participation or nonparticipation. Third,
the conditions must be related to the federal interest or goal of the particular
program. Finally, the conditions and exercise of power must not violate any other
constitutional doctrines. South Dakota does not claim that 158 is inconsistent with
the first three restrictions above. The 10th Amendment limitation of congressional
regulation of state affairs did not concomitantly limit the range of conditions
legitimately placed on federal grants. In some circumstances, it is possible that the
financial inducement offered by Congress might be so coercive as to pass the point
at which "pressure turns into compulsion." This is not the case here, however, since
SD would only lose a relatively small percentage of funds. SDs argument regarding
the coercive nature of the program is much more rhetoric than fact.
NFIB V. SEBELIUS (2012)

FEDERALISM LIMITS ON ARTICLE I POWERS

28

GARCIA V SAN ANTONIO METROPOLITIAN TRANSIT AUTHORITY (1985)

o FACTS: The San Antonio Metropolitan Transit Authority (SAMTA), the main provider
of transportation in the San Antonio metropolitan area, claimed it was exempt from
the minimum-wage and overtime requirements of the Fair Labor Standards Act.
SAMTA argued that it was providing a "traditional" governmental function, which
exempted it from federal controls according to the doctrine of federalism
established in National League of Cities v. Usery (1976). Joe G. Garcia, an employee
of SAMTA, brought suit for overtime pay under Fair Labor Standards Act
o ISSUE: Did principles of federalism make the San Antonio Metropolitan Transit
Authority immune from the Fair Labor Standards Act?
o HOLDING: the Court held that the guiding principles of federalism established in
National League of Cities v. Usery were unworkable and that SAMTA was subject to
Congressional legislation under the Commerce Clause. The Court found that rules
based on the subjective determination of "integral" or "traditional" governmental
functions provided little or no guidance in determining the boundaries of federal
and state power. The Court argued that the structure of the federal system itself,
rather than any "discrete limitations" on federal authority, protected state
sovereignty.
None. Reversed and Remanded.
The Supreme Court of the United States (Supreme Court) holds that the
determination of traditional and non-traditional state functions is an
inappropriate standard for determining whether Congress may enforce the
FLSA against a public employer.
The Supreme Court removes the standard by overturning National League
of Cities and leaving any decisions regarding Congressional control of state
actions to the political process.
NEW YORK V. UNITED STATES (1992)
o Facts: The Low-Level Radioactive Waste Management Act Amendments of 1985
required states alone or in compacts with other states to dispose of such
radioactive waste within their borders. New York State and Allegany and Cortland
counties were frustrated in their compliance efforts by resistance from residents to
proposed radioactive waste sites and a lack of cooperation from neighboring states.
New York filed suit against the federal government, questioning the authority of
Congress to regulate state waste management
o Issue: Does the Low-Level Waste Act violate the Tenth Amendment and the
"guarantee clause" of Article Four?
o Holding: the Court upheld two of the three provisions of the Act under review,
reasoning that Congress had the authority under the Commerce Clause to use
financial rewards and access to disposal sites as incentives for state waste
management. The third provision, the "take-title" qualification, stipulated that
states must take legal ownership and liability for low-level waste or by the
regulatory act. "Either type of federal action," wrote Justice Sandra Day O'Connor,
"would 'commandeer' state governments into the service of federal regulatory
purposes, and would for this reason be inconsistent with the Constitution's division
of authority between federal and state governments." This last provision violated
the Tenth Amendment.

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Reasoning: The Tenth Amendment is a truism that simply directs the court to
examine what are the internal limitations to the powers granted to Congress in
Article I. So the court must examine the Commerce Power, the Spending Power,
and the Supremacy Clause. The basic premise is that under Hodel, Congress may
not simply commandeer the state governmental processes. Nothing in the
Constitution implies that Congress has the ability to require states to govern by
federal coercion. This premise is supported by looking at the Framers intent when
they chose the structure that the Congress would exercise its power directly over
individuals rather than over states as intermediaries. Although Congress can
motivate or encourage states to regulate in a certain way by making federal
assistance conditional or by giving them the choice between doing it themselves or
having the federal government do it for them by preemption, it can not directly
compel. This enables state governments to be directly responsive and accountable
to the local electorate. Where the federal government compels regulation, the
state officials take the brunt, while the federal officials remain insulated, thus
reducing accountability in the political process. Construing the Act in a light most
favorable to the United States, the take title provision is still clearly beyond
Congress power because Congress neither has the power to force states to take
title to the waste (thereby subsidizing the generators) nor does it have the power to
compel regulation. That there is a very strong federal interest in controlling waste
does not allow Congress to go beyond the Constitution. Even if New York state itself
agreed to the bargain, the state is powerless to waive the Constitutional limits on
Congressional power because the Constitution is for the protection of individuals.
The other parts of the Act are Constitutional because neither monetary incentives
nor access denials can reasonably be said to deny a State a republican form of
government.
Printz v United States (1997)
o Facts: The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief
law enforcement officers" (CLEOs) to perform background-checks on prospective
handgun purchasers, until such time as the Attorney General establishes a federal
system for this purpose. County sheriffs Jay Printz and Richard Mack, separately
challenged the constitutionality of this interim provision of the Brady Bill on behalf
of CLEOs in Montana and Arizona respectively. In both cases District Courts found
the background-checks unconstitutional, but ruled that since this requirement was
severable from the rest of the Brady Bill a voluntary background-check system could
remain. On appeal from the Ninth Circuit's ruling that the interim background-check
provisions were constitutional, the Supreme Court granted certiorari and
consolidated the two cases deciding this one along with Mack v. United States.
o Issue: Using the Necessary and Proper Clause of Article I as justification, can
Congress temporarily require state CLEOs to regulate handgun purchases by
performing those duties called for by the Brady Bill's handgun applicant
background-checks?
o Holding: No. The Court constructed its opinion on the old principle that state
legislatures are not subject to federal direction. The Court explained that while
Congress may require the federal government to regulate commerce directly, in this
case by performing background-checks on applicants for handgun ownership, the

30

Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill
its federal tasks for it - even temporarily. The Court added that the Brady Bill could
not require CLEOs to perform the related tasks of disposing of handgun-application
forms or notifying certain applicants of the reasons for their refusal in writing, since
the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted
them.
Seminole tribe of Florida v. Florida (1996)
o Facts: Congress enacted the Indian Gaming Regulatory Act in 1988. This Act
authorized Indian tribes to conduct gaming activities as long as they abided by
terms agreed upon by the tribe and the state the gaming activities occurred in.
Under this act the Seminole Tribe brought suit against Florida because it had failed
to negotiate this compact. Attorneys for Florida moved to have to case dismissed
on the grounds that it violated the states sovereign immunity from suits in federal
court as well as the Eleventh Amendment. The federal district court dismissed this
motion. After the Court of Appeals reversed this ruling, the Seminole Tribe
appealed to the Supreme Court.
o Issue: whether the Eleventh Amendment provided Florida with immunity from the
suit filed by the Seminole Trib?.
o Holding: Chief Justice Rehnquist delivering the opinion of the Court. Justices
Stevens and Souter filed dissenting opinions and Justices Ginsburg and Breyer
joined with Justice Souter. In the opinion of the Court, Chief Justice Rehnquist
declared that the Eleventh Amendment restricted the power of Congress to
authorize suits against States. They declared that Florida was the injured party
because the Seminole Tribe had no standing. Aside from distinguishing differences
from many precedents, the ruling overturned Pennsylvania v. Union Gas Co. (1989)
which held that Congress could abrogate States Eleventh Amendment immunity
under the Interstate Commerce Clause. The Courts opinion points out flaws in the
reasoning in the Union Gas case stating that using the fact that sometimes Congress
may have power over the States implies that in situations where Congress has less
authority the States have more. The difference between the Indian Commerce
Clause and the Interstate Commerce Clause is that the Indian Commerce Clause
transfers more power from the State to the Federal Government than does the
other
. Other precedents that are mentioned include Blatchford v. Native Village
of Noatak (1991) Hans v. Louisiana (1890), Fitzpatrick v. Bitzer (1976), as
well as the doctrine of Ex parte Young (1908) Blatchford held that the
Eleventh Amendment restricted only certain jurisdiction of the federal
court and Hans held that each State is a sovereign entity in the federal
system and that that sovereignty cannot be amended without that beings
consent. Fitzpatrick held that Congress can abrogate States immunity in
pursuit of its powers under the Fourteenth Amendment. Due to this
however, there is not an established precedent here to be applied. The
doctrine of Ex parte Young does also not apply here because it relinquishes
State sovereignty for a state official and not the state itself. Justice Souter
dissents because he, joined by Justices Ginsburg and Breyer, feel that the
Court was mistaken in overturning Union Gas . They believe that the

31

Seminole Tribe of Florida was the injured party in this case. In Article I,
Section 8, Clause 3, the Constitution gives Congress to regulate commerce
with the Indian Tribes. If the Framers of the Eleventh Amendment had
wanted to protect States from this type of suit they would have worded it
differently. Congress chose to enact its power with the Indian Gaming
Regulatory Act. I concur with Justice Souters dissent here. The meaning of
the Eleventh Amendment is clear and Congress was acting well within its
power in enacting the Indian Gaming Regulatory Act. Since under that Act
the Seminole Tribe was allowed to bring suit against Florida when it didnt
negotiate a compact under good faith, they were the injured party. I would
contend that there is no significant legal difference between the Interstate
Commerce Clause and the Indian Commerce Clause and creating such
is just a means to overturn Union Gas. As the dissent points out there is no
point in the majority opinion to deal with the issue of federal jurisdiction.
They seemed to have ignored this issue much as they did later in Elk Grove
Unified School District v. Newdow. Instead of ruling on the issue at hand,
the majority voted to deny the appellant standing.
Alden v. Maine (1999)
o Facts: A group of probation officers sued their employer, the State of Maine, in
1992 alleging that the state had violated the overtime provisions of the 1938 Fair
Labor Standards Act. Following the Court's decision in Seminole Tribe v. Florida
(1996)which held that States are immune from private suits in federal court and that
Congress lacks the authority to abrogate that immunitythe probation officers' suit
was dismissed in Federal district court. Alden and the other probation officers then
sued Maine again for violating the Fair Labor Standards Act, this time in state court.
The state trial court and the state supreme court both held that Maine had
sovereign immunity and could not be sued by private parties in their own court.
o Issue: May Congress use its powers under Article I of the Constitution to abrogate a
state's sovereign immunity from private suits in its own courts?
o Holding: No. A sharply divided court held in a 5-4 decision that Congress may not
use its Article I powers to abrogate the states' sovereign immunity. Both the terms
and history of the eleventh amendment suggest that States are immune from suits
in their own courts. And more generally, the original understanding of the
Constitution's structure and the terms of the tenth amendment confirm that states
retained much of their sovereignty despite their agreeing that the national
government would be supreme when exercising its enumerated powers.
Federal Maritime Commission v. South Carolina State Posts Authority (2002)
o Facts: South Carolina Maritime Services, Inc. (Maritime Services), asked the South
Carolina State Ports Authority (SCSPA) five times for permission to berth a cruise
ship, the M/V Tropic Sea, at the SCSPA's port facilities in Charleston, South Carolina.
Some cruises offered by Maritime Services would allow passengers to participate in
gambling activities while on board. The SCSPA repeatedly denied Maritime Services'
requests, contending that it had an established policy of denying berths in the Port
of Charleston to vessels whose primary purpose was gambling. Maritime Services
file a complaint with the Federal Maritime Commission (FMC), arguing that SCSPA
violated the Shipping Act by its denials. The complaint was referred to an

32

Administrative Law Judge (ALJ), who found that the SCSPA, as an arm of the State of
South Carolina, was entitled to sovereign immunity and thus dismissed the
complaint. Reversing on its own motion, the FMC concluded that state sovereign
immunity covers proceedings before judicial tribunals, not Executive Branch
agencies. In reversing, Court of Appeals fund that the proceedings were an
adjudication and thus subject to state sovereign immunity.
Issue: Does a State's sovereign immunity preclude the Federal Maritime
Commission from adjudicating a private party's complaint that a state-run port has
violated the Shipping Act of 1984?
Holding: Yes. In a 5-4 opinion delivered by Justice Clarence Thomas, the Court held
that state sovereign immunity bars the FMC from adjudicating a private party's
complaint against a nonconsenting State. Historically, the Court noted, states were
not subject to private suits in administrative adjudications when the Constitution
was adopted, and states were thus presumptively immune from such actions.
Moreover, the Court pointed to the similarities between the FMC's proceedings and
civil litigation to conclude that there was no basis for distinguishing between the
actions for purposes of sovereign immunity. "Although the Framers likely did not
envision the intrusion on state sovereignty at issue in today's case, we are
nonetheless confident that it is contrary to their constitutional design," wrote
Justice Thomas.

Chapter 10 The Power to Enforce The Reconstruction Amendments

th

Congresses Power under Section 5 of the 14 Amendment

o Congress shall have the power to enforce, by appropriate legislation, the provisions of this
article.
th
A. The Framework for Enforcing the 14 Amendment
Katzenbach v. Morgan (1966)
i. Facts: New York voters sought declaratory judgment in a New York federal district court
to prevent compliance with Section 4(e) of the Voting Rights Act of 1965. That section
provided that no person who successfully completed the sixth grade in a school
accredited by the Commonwealth of Puerto Rico in which the language of instruction
was other than English shall be denied the right to vote in any election because of his
inability to read or write English. The plaintiffs argued that Section 4(e) prevented the
enforcement of New York election laws which required an ability to read and write
English as a condition of voting. A three-judge panel of the district court granted
declaratory judgment and prevented enforcement of Section 4(e). It held that Congress
exceeded its constitutionally designated powers in enacting Section 4(e) and usurped
the powers reserved to the states under the Tenth Amendment.
ii. Issue: What is the appropriate scope of Congressional power under the 14th
amendment?
iii. Holding: Congress may enact laws stemming from its 14th Amendment enforcement
power that increase the rights of citizens beyond what the judiciary has recognized.

33

iv. Reasoning: Section 5 of the 14th amendment confers the same power on Congress as
the Necessary and Proper Clause since they use the same language. Section 4(e) may be
readily seen as plainly adapted to further the aims of the Equal Protection Clause. It
enables the PR minority to better obtain equality. It was for Congress, as the branch that
made the judgment, to assess and weigh the various conflicting considerations. It is not
for the court to review the congressional consideration of factors.It is enough that the
Court can perceive a basis upon which Congress might resolve the conflict as it did.
(problem - disenfranchised Spanish speakers, solution - preempting state law through
VRA)
City of Boerne v. Flores (1997)
o Facts: The Religious Freedom Restoration Act of 1993 prohibits the government from
substantially burdening a person's exercise of religion even if the burden results from a rule
of general applicability. The Gov't is forbidden unless it can demonstrate that the burden is
in furtherance of a compelling gov't interest and is the least restrictive means of furthering
that compelling gov't interest. A church wanted to expand; it applied for a building permit.
The city council had previously passed a law requiring the city's Historic Landmark
Commission to preapprove construction affecting landmarks or buildings in a historic district.
The commission denied the building permit. The church filed suit under the RFRA.
o Issue: What is the appropriate scope of Congressional power under Section 5 of the 14th
amendment?
o Holding: Congress may only enact legislation under Section 5 of the 14th amendment which
is remedial or preventative in nature and that is designed to have congruence and
proportionality with the substantive rights the Court has defined
o Reasoning: Congress's power under Section 5 extends only to enforcing the provisions of the
14th amendment, it is remedial in nature.
The design of the amendment and the text are inconsistent with the suggestion
that Congress has the power to decree the substance of the 14th amendment's
restrictions on the states.
There is a thin line between measures that remedy or prevent unconstitutional
actions and measures that make a substantive change in the governing law; that
line must be preserved.
The history of the amendment confirms that the power given to Congress was
remedial, not plenary. Congress is allowed to correct the unjust legislations of the
states.
Precedent also confirms the remedial nature of the power.
"Congruence and proportionality" requirement: While preventative rules are
sometimes appropriate remedial measures, there must be a congruence between
the means used and the ends to be achieved. The appropriateness of the remedial
measures must be considered in the light of the evil presented.
The RFRA is so out of proportion to a supposed remedial or preventive object that it
cannot be understood as responsive to, or designed to prevent, unconstitutional
behavior.
It appears instead to attempt a substantive change in constitutional protections.
Preventative measures prohibiting certain types of laws may be appropriate when
there is reason to believe that many of the laws affected by the enactment have a

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significant likelihood of being unconstitutional. Most state laws to which the RFRA
applies are not ones which will have been motivated by religious bigotry.

B.

Application of the Section 5 Power: Disability and Sex Discrimination

University of Alabama v. Garrett (2001)

o Facts: After Patricia Garrett, Director of Nursing for the University of Alabama, was
diagnosed with breast cancer, her treatment forced her to take a substantial leave from
work. Upon her return, her supervisor informed her she would have to give up her position.
Milton Ash, a security officer for the Alabama Department of Youth Services, who suffers
from chronic asthma, requested that his employer modify his duties to accommodate him.
Ultimately, none of Ash's requested relief was granted and his job performance evaluations
fell. Both Garrett and Ash filed discrimination suits against their Alabama state employers,
seeking money damages under Title I of the Americans with Disabilities Act of 1990 (ADA),
which prohibits the States and other employers from "discriminating against a qualified
individual with a disability because of that disability... in regard to... terms, conditions, and
privileges of employment." The District Court disposed of both cases by ruling that the ADA
exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. The
Court of Appeals reversed.
o Issue: May an individual sue a state for damages in federal court under the Americans with
Disabilities Act of 1990?
o Holding: No, the Court held that suits in federal court by state employees to recover money
damages by reason of the state's failure to comply with Title I of the ADA are barred by the
Eleventh Amendment. The Chief Justice wrote for the majority that "in order to authorize
private individuals to recover money damages against the States, there must be a pattern of
discrimination by the States which violates the Fourteenth Amendment, and the remedy
imposed by Congress must be congruent and proportional to the targeted violation."
Rehnquist added that none of these requirements had been met. Justices John Paul Stevens,
David H. Souter and Ruth Bader Ginsburg joined Justice Stephen G. Breyer's dissent.
Nevada Dept of Human Resources v. Hibbs (2003)
o Facts: William Hibbs, an employee of the Nevada Department of Human Resources, sought
leave to care for his wife under the Family and Medical Leave Act of 1993 (FMLA). The FMLA
entitles an eligible employee to take up to 12 workweeks of unpaid leave annually for the
onset of a "serious health condition" in the employee's spouse. The Department granted
Hibbs's request for the full 12 weeks of FMLA leave and, after he had exhausted that leave,
informed him that he must report to work by a certain date. When Hibbs failed to do so, he
was fired. Pursuant to FMLA provisions creating a private right of action "against any
employer" that "interfered with, restrained, or denied the exercise of" FMLA rights, Hibbs
sued in Federal District Court, seeking money damages for FMLA violations. The District
Court concluded that the Eleventh Amendment barred the FMLA claim. The Court of Appeals
reversed.
o Issue: May an individual sue a State for money damages in federal court for violation of the
Family and Medical Leave Act of 1993?

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Holding: Yes., the Court held that State employees may recover money damages in federal
court in the event of the State's failure to comply with the FMLA's family-care provision. The
Court reasoned that Congress both clearly stated its intention to abrogate the States'
Eleventh Amendment immunity from suit in federal court under the FMLA and acted within
its authority under section 5 of the Fourteenth Amendment by enacting prophylactic, rather
than substantively redefining, legislation. "In sum, the States' record of unconstitutional
participation in, and fostering of, gender-based discrimination in the administration of leave
benefits is weighty enough to justify the enactment of prophylactic [section] 5 legislation,"
wrote Chief Justice Rehnquist. Justices Antonin Scalia and Anthony M. Kennedy, who was
joined by Justices Clarence Thomas and Scalia, filed dissents.
Coleman v. Court of Appeals of Maryland (2012)
o Facts: Former Maryland Court of Appeals employee Daniel Coleman filed a lawsuit under the
self-care provision of the Family and Medical Leave Act, alleging that he was fired after
requesting sick leave for a documented medical condition. The lower court dismissed
Coleman's claim and the U.S. Court of Appeals for the Fourth Circuit affirmed, holding that
the claim was properly dismissed because his employer is a state agency.
o Issue: Did Congress constitutionally abrogate states' Eleventh Amendment immunity when it
passed the self-care leave provision of the Family and Medical Leave Act?
o Holding: No, , the Court held that the self-care provision, standing alone, did not validly
abrogate Marylands immunity from suits for damages. Justice Kennedy argued that
Congress evidence failed to show a pattern of state constitutional violations when it wrote
the self-care provision; instead, Congress considered evidence that men and women are on
medical leave in roughly equal numbers. In contrast, Congress often referred to its concerns
about discrimination against women when constructing the family-care portion of the act.
Hence, the self-care leave provision was not a congruent and proportional response to
discriminatory conduct under 5 of the Fourteenth Amendment and did not abrogate
Marylands sovereign immunity.\
Shelby County v. Holder (2012)
o The Fourteenth Amendment protects every persons right to due process of law. The
Fifteenth Amendment protects citizens from having their right to vote abridged or denied
due to race, color, or previous condition of servitude. The Tenth Amendment reserves all
rights not expressly granted to the federal government to the individual states. Article Four
of the Constitution guarantees the right of self-government for each state.The Civil Rights
Act of 1965 was enacted as a response to the nearly century-long history of voting
discrimination. Section 5 prohibits eligible districts from enacting changes to their election
laws and procedures without gaining official authorization. Section 4(b) defines the eligible
districts as ones that had a voting test in place as of November 1, 1964 and less than 50%
turnout for the 1964 presidential election. Such districts must prove to the Attorney General
or a three-judge panel of a Washington, D.C. district court that the change neither has the
purpose nor will have the effect of negatively impacting any individuals right to vote based
on race or minority status. Section 5 was originally enacted for five years, but has been
continually renewed since that time. Shelby County, Alabama, filed suit in district court and
sought both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and
a permanent injunction against their enforcement. The district court upheld the
constitutionality of the Sections and granted summary judgment for the Attorney General.
The U.S. Court of Appeals for the District of Columbia Circuit held that Congress did not

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exceed its powers by reauthorizing Section 5 and that Section 4(b) is still relevant to the
issue of voting discrimination
Issue: Does the renewal of Section 5 of the Voter Rights Act under the constraints of Section
4(b) exceed Congress authority under the Fourteenth and Fifteenth Amendments, and
therefore violate the Tenth Amendment and Article Four of the Constitution?
Holding: Yes, Section 4 of the Voting Rights Act is unconstitutional. Chief Justice John G.
Roberts, Jr. delivered the opinion of the 5-4 majority. The Court held that Section 4 of the
Voting Rights Act imposes current burdens that are no longer responsive to the current
conditions in the voting districts in question. Although the constraints this section places on
specific states made sense in the 1960s and 1970s, they do not any longer and now
represent an unconstitutional violation of the power to regulate elections that the
Constitution reserves for the states. The Court also held that the formula for determining
whether changes to a states voting procedure should be federally reviewed is now outdated
and does not reflect the changes that have occurred in the last 50 years in narrowing the
voting turnout gap in the states in question.

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