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CONSTITUTIONAL LAW 1 OUTLINE

KEYED TO: SULLIVAN CASEBOOK

• The Supreme Court's Authority and Role


○ Judicial Review
• ROL→ Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction.
 Marbury v. Madison
 →Established Judicial Review. Court Held that a writ of mandamus to deliver a commission made
by John Adams fell under the Sup. Court's appellate jurisdiction and therefore could not be brought
in that court originally under Art. III b/c it is repugnant to the Constitution
○ →Supreme Court Authority to Review State Court Judgments
• ROL→ The United States appellate power also extends to REVIEW state court judgments
 →Judiciary Act of 1789, § 25: Provides for supreme court review of final decisions of the highest
state courts rejecting claims based on federal law
• Martin v. Hunter's Lessee
• →A Virginia citizen willed his Virginia land to his nephew, P, a British subject and
resident of England. Virginia, according to state law, had the right to confiscate land
owned by British subjects and did so. Virginia granted this land to D, who then ejected
P from the land. But, the treaties of 1783 and 1794 with Great Britain had anti-
confiscation laws saying that the states won’t take the land of British citizens. Supreme
Court exerted its authority to review the Virginia court's judgment and held that
Supremacy Clause declares that the Federal interpretation will trump the States
interpretation)
• Cohens v. Virginia
• →SC upheld its jurisdiction to review the validity of state laws in criminal proceedings)
○ →Judicial Excusivity
• ROL→ It is exclusively the court's duty to interpret the constitution and say what the law is; Supremacy
Clause makes the Constitution the Supreme Law of the Land and is therefore binding on all the states,
regardless of any state laws contradicting it.
 Cooper v. Aaron
• →Gov. of Ark. refused to obey a Supreme Court order to integrate schools after deciding
Brown v. Board of Education. The State legislature had amended its constitution to oppose
desegregation. Court held that the Brown decision was binding upon the states and they were
required to comply with the integration order despite being repugnant to Arkansas state laws
• ROL→ Article V provides that Congress can initiate an amendment to the Constitution and the
amendment process can be used to overturn a constitutional interpretation of the Supreme Court
 Dickerson v. United States (Remember this case from Crim Pro where congress tries to overrule
Miranda!!)
 →Held that Congress cannot legislatively supersede Supreme Court decisions interpreting and
applying the U.S. Constitution
○ Political Restraints on the Supreme Court
• →Judicial Selection: Nomination and Confirmation Process
 Art. II § 2, cl. 2 provides that the appointment of Justices will not be effective unless the President
obtains the "Advice and Consent of the Senate"
• →Impeachment
 Art. III, § 1 confers presumptive life tenure
 Art. II, § 4 provides that any officer of the United States, including judges, may be removed from
office on impeachment for, and conviction of, treason, bribery, or other high crimes and
misdemeanors

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•→Court Packing
 Art. III, § 2 provides that Congress sets the size and budget for the Court
• →Court Stripping
 Art. III, § 2 gives Congress power to make exceptions to the Supreme Court's appellate
jurisdiction
• Ex Parte Mcardle
• →Held that the Sup. Ct. lacked jurisdiction to issue a writ of habeas corpus b/c Congress has
power under the Constitution to limit the court's appellate jurisdiction….The Constitution
established the judicial courts, and their organization, which conferred their power/authority.
“with such exceptions and under such regulations as Congress shall make.”…Congress
repealed an act authorizing the Court to grant habeas corpus to anyone restrained in violation
of the Constitution and in doing so limited its jurisdiction)
• →Constitutional Amendments
 Art. V talks about two methods:
• Congress, by 2/3 vote, may propose amendments for ratification of 3/4 of states
• 2/3 of states may apply to congress to call a constitutional convention
○ "Case or Controversy" Requirements
• →Article III, § 2, cl. 1 provides that the Judicial Power shall extend to a list of enumerated cases and
controversies
 →Advisory Opinions: Court will not issue Opinions on the legality of executive or legislative
action that do not involve an actual case
 →Standing
• **Elements:
• →Injury in fact: actual injury that is imminent, particularized, concrete, distinct, and
palpable (most obvious examples are claims of material bodily or financial harm…but
intangible injuries can also confer standing)
• →Causal Connection btw injury and ∆'s conduct: Places burden on ∏ to show that the
harm alleged is fairly traceable
• →Likely that the injury will be redressed by a favorable decision
• →Cases:
• Lujan v. Defenders of Wildlife
• →∏s claim they are injured b/c the ESA which protects threatened species, is
interpreted as only applying to the U.S. and not foreign nations. Court held that ∏s did
not suffer injury in fact b/c hopes of someday visiting the threatened wildlife was not
concrete enough to support injury in fact…furthermore there was no redressability so
∏s lacked standing..Court also mentions that generalized grievances suffered by the
public do not constitute injury in fact)
• Massachusetts v. EPA
• →Held that ∏s had standing to sue EPA for failure to regulate greenhouse emissions b/c
the rise in sea levels as a result of global warming would continue to harm Mass.,
demonstrating concrete injury, also the risk would be reduced if ∏s got the relief they
sought
• United States v. Students Challenging Regulatory Agency Procedures
• →Based an Enviro. group's standing to challenge a railroad freight surcharge on the
grounds that increases in railroad rates would cause an increase in the use of
nonrecyclable goods, resulting in the increased need for natural resources to produce
such goods….Book says this is the most attenuated injury conferring standing to date!)
• →Prudential Standing Doctrines: imposed by the Court on top of what is required by the
Constitution
• →Third Party Standing:

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• →"Plaintiff must assert his own legal rights and interests and cannot rest his claim
to relief on the legal rights or interests of third parties"
• →Court generally restricts standing to ∏s directly injured but there are some
exceptions to this...
• →Generalized Grievances:
• Court will not adjudicate a claim where the harm alleged is suffered a large
segment of society and not specific to one person or small group of people
• →Zone of Interest: prudential limitation on standing usually in the form of citizen-suit
provisions contained in statutes
 →Mootness: Occurs when litigants who clearly had standing to sue at the outset of the litigation
are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after
the lawsuit has commenced
• Exception: Cases that are "capable of repetition" Ex. Abortion cases
 →Ripeness: When a suit is to early to bring b/c of too many contingencies or uncertainties
 →Political Questions:
• →2 types:
• →That some matters are committed to the unreviewable discretion of the political
branches
• →That some otherwise legal questions ought to be left to other branches as a matter of
prudence
• Baker v. Carr
• →Voters of Tennessee sought injunction to reform the outdated legislative districting plans
and claimed the current system to be a violation of the Equal Protection Clause of the 14th
Amendment. Previously in Colegrove v. Greene, a similar suit was brought under
**Guaranty Clause (Art IV, § 4) of the Constitution and Justice Frankfurter had ruled that
this issue was nonjusticiable
• →Court held that the case issue was justiciable if brought under the equal protection
clause of the fourteenth amendment…b/c an equal protection issue is one which cannot
be decided by any other branch of gov.)
• →Dissent= Says it is really a guaranty clause claim masquerading as an equal
protection claim and should not be justiciable
• →Distinguishing legal from political questions
• →Congressional qualifications
• Powell v. McCormack
• →A seat was refused to representative Powell b/c he had wrongfully diverted funds...∆
claimed he had met all of the formal requirements …Speaker of the house said it was a
question to be decided by Congress…but the court found the congressional qualification
issue to be justiciable and "at most a textually demonstrable commitment to Congress to
judge only the qualifications set forth in the Constitution
• →Treaty Abrogation: nonjusticiable b/c Involves the authority of the President and
foreign relations
• →Impeachment Proceedings:
• ROL (Art. II, sec. 4)→"The pres., vice pres., and all civil officers of the US, shall
be removed from office on impeachment for, and conviction of treason, bribery, or
other high crimes and misdemeanors"
• →Impeachment proceedings are nonjusticiable b/c the Constitution has given
Congress sole power of impeachment
• →Constitutional Amendment Process
• →Presidential Election Process:
• Bush v. Gore

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• →Court actually heard this case (it was justiciable)…and held that the recounts ordered
by the Gore team were unconstitutional and violated equal protection b/c they were
being conducted under nonuniform standards…also, there was no possible remedy the
situation by 12/12, the date by which the votes must be conclusive, under US statutes
• The Nation and the States in the Federal System
○ →Necessary and Proper Clause (Art. , §8, cl. 18)→“The Congress shall have Power … To make all 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 United States, or in any Department or Officer thereof.”
• →**McCulloch v. Maryland
 →Held that Congress had the power to create a national bank in Maryland because although not
within its enumerated powers, it falls under the "necessary and proper" clause…
• →BUT State of Maryland could not impose a tax on the bank b/c states cannot tax or interfere
with any Constitutional laws enacted by Congress to carry into execution the powers vested in
the Federal Gov
• The Commerce Power and its Federalism-Based Limits
○ Commerce Clause→ Congress has power "to regulate commerce with foreign nations, and among the several
states, and with the Indian Tribes"
• Pre-New Deal
 Gibbons v. Ogden
• →Involved challenge to a steamboat monopoly…Court held that operating steamboats among
two states is interstate commerce and Congress has the absolute power to regulate all
interstate commerce subject to limitation only by the Constitution)
• →Most expansive view of Commerce Power
• 3 Tests
 →Direct vs. Indirect effects test: What is the relation between the activity or condition and the
effect?
• United States v. E.C. Knight Co.
• →Sugar Trust Case
• Invalidated the Sherman antitrust Act as it was applied to a monopoly of sugar
manufacturing,
• →Held the fact that an article is manufactured for export to another state does not
itself make it an article of interstate commerce, and the intent of the manufacturer
does not determine the time when the article or product passes from the control of
the state and belongs to commerce
 →Substantial Economic Effects test
• ROL→ Congress can regulate intrastate transactions which are so comingled with or related
to interstate commerce that it must be regulated entirely in order to properly control interstate
commerce
• Houston E. & W. T. Ry. Co. v. United States
• →Shreveport Rate Case….Court sustained congressional authority to regulate
intrastate rail rates that discriminated against interstate railroad traffic…Rates to
haul loads btw places in TX was lower than rates for going to Lousiana…Court
said it unjustifiedly discriminated in favor of traffic within TX..)
• →Rationale=Railroads are interstate carriers which are instruments of
interstate commerce, just b/c it involves intrastate commerce as well…that
alone doesn't remove congress' right to regulate it
 Stream of Commerce test:
• ROL→ local activities can be regulated by Congress b/c they themselves are "in" commerce
or as an integral part of the "stream of commerce"
• Swift & Co. v. United States

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• →Sale of Cattle is considered interstate commerce b/c they are expected to end up
at their destination in another state and are therefore within the stream of
commerce)
• National Police Power
 Champion .v Ames
• →Lottery Case…Court upheld Federal Lottery Act which prohibited importing, mailing, or
interstate transporting of lottery tickets…
• →.Congress can use the commerce power to prohibit the movement of harmful items
that move through interstate commerce as a police power to protect the public health)
 Hammer v. Dagenhart
• →Child labor case…A statute enacted by Congress aimed at standardizing the ages at which
children may be employed in mining/manufacturing within the states…
• →Congress cannot regulate the production of articles even if they are intended for
interstate commerce b/c production is a purely local matter; doing so would subject all
local manufacturer intended for interstate commerce to federal regulation)
• Commerce Power and the New Deal
 Schecter Poultry Corp. v. United States
• →Held that congress could not regulate the wage, hour, and trade practices of the poultry
industry….the Act applied to purely intrastate commerce and exceeded the commerce power
b/c the Slaughterhouse only sold to local retailers, which were not subject to federal control)
 Carter v. Carter Coal Co.
• →Held that Congress could not regulate coal mining b/c it is a local concern…and otherwise
does not have a "direct" effect on interstate commerce; Court rejects argument that Congress
can enact laws for the general welfare of the nation as a whole b/c production is purely local
activity!
• Post New Deal
 ROL→ Even though activities are intrastate in character when seperately considered, if they have
such a close and substantial relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens/obstructions, Congress can exercise that control
• NLRB v. Jones & Laughlin Steel Corp.
• →Court upheld a law allowing the NLRB to prevent any person from engaging in unfair
labor practices..Court says it was necessary to prevent strikes, which would have a
catastrophic effect on interstate commerce)
• United States v. Darby
• →Overrules Hammer v. Dagenhart…Court sustains the validity of a law regulating
lumber manufacturing; Case has 2 holdings→
• →1. Congress can regulate shipment of goods across state lines even if its motive
is to control local production
• →2. Substandard working conditions produce unfair competition which affects
interstate commerce
 Aggregation Principle→ Activites which, by themselves, have trivial effects may have substantial
effects when taken together with that of many others similarly situated can be regulated by
Congress..
• Wickard v. Filburn
• →∆ sues sec. of agr. to enjoin enforcement of a marketing penalty imposed on him for
exceeding the market quota of wheat production which was for his own personal
consumption and not for commercial purposes;
• →Court upholds the regulation b/c it substantially affects interstate commerce…
this is the broadest exercise of commerce power;

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• →"Aggregation" principle says ∆'s contribution to the demand for wheat by
itself is minimal, but when you add up all the wheat farmers together, effects
on interstate commerce are substantial
• Commerce Power and Civil Rights
○ Civil Rights Act of 1864
• Prohibits discrimination on the ground of race, color, religion, or national origin in certain places of
public accommodation
 Under the law, facilities are covered if its operations affect commerce, or if discrimination is
supported by state action
• → Covered facilities: any inn, hotel, motel, restaurant, cafeteria, lunch room, lunch counter,
theater, concert hall, sports arena
• → establishment affecting commerce: any establishment that offers to serve interstate
travelers or a substantial portion of the food which it serves has moved in commerce
 The act extended to private economic conduct not covered by equal protection because there is no
state action involved
○ ROL→ determinative test of commerce power is whether the activity sought to be regulated is commerce
which concerns more than one state and has a real and substantial relation to the national interest
• Heart of Atlanta Motel v. United States
 →Motel owner discriminates against blacks and refuses to rent them rooms..Congress passes a law
making it illegal to discriminate and motel owner subsequently challenges the act under the
commerce clause;
• →Court upholds the validity of the law b/c even though discrimination is local in character,
nowadays people tend to travel which burdens interstate commerce if they are refused a motel
room (they have nowhere to go!!))
• Katzenbach v. McClung
 →Court finds burdens placed on interstate commerce by racial discrimination in restaurants,
theaters, and other establishments…even though there were no congressional findings, Congress
had a rational basis for determining that racial discrimination in restaurants substantially affects
interstate commerce
• → the food being served in Ollie's barbecue had moved through interstate commerce
therefore subject to regulation by Congress
• Congressional Findings
• ROL→ Congress is not required to make formal findings to sustain legislation as
rationally related to substantial effects on commerce
• →Congressional findings are neither necessary nor sufficient to ensure a statute's
constitutionality under the commerce clause**
• →Commerce Power and Crime
 Perez v. United States
• →Guy loans money to owner of a butcher shop and threatens violence when the owner
couldn't pay back in the agreed upon installments…Court holds that extortionate credit
transactions, though purely intrastate, may in the judgment of Congress affect interstate
commerce in the national setting
○ →Limits on the Commerce Power
• **3 Broad Categories of Commerce Power**
 Regulation of the use of channels of interstate commerce
 Congress empowered to regulate and protect the instrumentalities of, or persons or things in
interstate commerce, even if coming from only intrastate activities
 Commerce power includes the authority to regulate activities having a substantial relation to
interstate commerce
• Cases:

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 United States v. Lopez
• →Congress tries to regulate criminal possession of weapons in schools through its commerce
power..Court says no way! Regulation of schools is local in nature and the criminal statute
has nothing to do with commerce…the effects that carrying a gun to school would have on
interstate commerce are too remote to allow Congress to regulate it
 United States v. Morrison
• →Case makes an economic/noneconomic activity distinction...Gov tries to sustain the
Violence Against Women Act as a regulation of activity that substantially affects interstate
commerce…
• →Court held that Congress may not regulate noneconomic, violent criminal conduct
based solely on that conduct's aggregate effect on interstate commerce; regulation and
punishment of intrastate violence that is not directed at the instrumentalities, channels,
or goods involved in interstate commerce has always been the province of the states
 Gonzales v. Raich
• →California passed legislation that decriminalized marijuana use for medicinal purposes…
But the federal controlled substances Act prohibits marijuana use..∏'s challenge the statute as
exceeding congress' commerce power; Court analogizes the facts to Wickard v. Filburn and
holds that congress did not exceed its commerce power authority b/c even though marijuana
cultivation is an intrastate activity, its aggregate effects substantially affect interstate
commerce…
• →Court assesses the activity being regulated at a very general level and finds the CSA
as a whole on a national level to regulate activities that are "quintessentially"
economic...
○ External Limits on the Commerce Power
• →Tenth Amendment
 →The Powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people..
 Pro-State Autonomy Cases
• National League of Cities v. Usery
• →State autonomy defense finally succeeded…case involved amendments to the fair
labor standards act that extended minimum wage and maximum hour provisions to
employees of state and local govs…
• →the court struck it down b/c employer-employee relationships (areas of fire prevention,
police, sanitation, public health, parks and recreation) are typically regulated by the states and
federal gov cannot take this power away from the states under the 10th amendment
 Anti-State Autonomy Cases
• Coyle v. Oklahoma
• →Invalidated a condition in the federal enabling act for admission of OK to the union
that purported to specify the state capital;
• →Court held that power to locate the state capital and change it are state powers
beyond the control of congress
• United States v. California
• →Court upheld a penalty imposed on a state owned railroad for violation of the
FSAA..b/c the sovereign power of the states, is necessarily diminished to the extent of
the grants of power to the federal government in the Constitution
• New York v. United States
• →Court upheld the application of a federal tax to State of Nys sale of bottled mineral
water from state-owned springs…Congress is allowed to tax and its taxing power
extends as far as its commerce power therefore the state of Ny was not immune
• Garcia v. San Antonio Metropolitan Transit Authority

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• → Overruled National League of cities…Court held a municipal transit authority was
properly subject to the Fair Labor Standards Act….
• →"Any rule of state immunity that looks to the traditional or integral or necessary
nature of governmental functions inevitably invites an unelected federal judiciary
to make decisions about which policies it favors or dislikes"…
• →Court found definitions of traditional state governmental functions to be
unworkable and says the proper area for states' rights to be protected is the
political process not the judicial process
 Post-Garcia
• South Carolina v. Baker
• →Upheld removal of an exemption from fed income tax for interest from bearer bonds
issued by the states….state of SC alleges that there was a defective political process b/c
Congress was uninformed and relying on incomplete information, but this does not
invoke the 10th amendment
 Commandeering State Governments
• →Two Federalism Questions
• →Whether an act of congress is authorized by one of the powers delegated to congress
in Art. 1 of the constitution
• →Whether an Act of congress invades the province of state sovereignty reserved by the
tenth amendment
• ROL→ Congress may not commandeer the legislative processes of the states by directly
compelling them to enact and enforce a federal regulatory program
• →Alternatives to commandeering=
• →Spending Power= Congress can condition the payment of relevant fed
funds on a state's agreement to take title to waste if it has not already
provided a waste disposal facility
• →Commerce Power=if it has a substantial impact on interstate commerce
• →Conditional Preemption=Congress can threaten to pass fed legislation
under the commerce clause which will preempt the state regulations
 New York v. United States (Radioactive waste case)
• →Court held that while Congress has substantial power under the Constitution to
encourage the states to provide for the disposal of rad. waste generated within the
state, the constitution does not give congress the ability to compel the states to do
so….
• →Issue here is whether congress may direct or otherwise motivate the states
to regulate in a particular field or a particular way??? it cannot b/c the "take
title" provision of the statute gives a state the choice to either accept
ownership of the waste or regulate it according to congress instructions ,BUT
this clear cut coercion by congress which is unconstitutional…
• ROL→ Congressional action compelling state officers to execute federal laws is
unconstitutional
 Printz v. united States
• →Held that a fed statute requiring state and local law enforcement officers to
conduct background checks on prospective handgun purchasers was
unconstitutional b/c it purports to direct state law enforcement officers to
participate in the administration of a federally enacted regulatory scheme
• States as objects of federal regulation vs. states as regulators
○ →NY and Printz rejected congress's authority to dictate through federal prescription, how the states regulate
their own citizens but not Congress's ability to regulate the state's own conduct under general laws that also
regulate the similar conduct of private actors

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○ →ROL=Congress may directly regulate a state's own conduct as long as it does not direct the state's regulation
of its citizens
• Reno v. Condon
 →Court upheld a federal law limiting the commercial vending of personal data by the states. The
federal statute prohibited state motor vehicle departments from disclosing private information; the
court held that this was permissible under the tenth amendment b/c the law merely regulates state
activities, rather than seeking to control or influence the way in which states regulate private parties
• Eleventh Amendment
○ →ROL=The judicial power of the united states shall not be construed to extend to any suit commenced or
prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any
foreign states
• Hans v. Louisiana
 →Eleventh amendment applies not only to cases within federal diversity jurisdiction but also to
cases within the federal question jurisdiction of the federal courts
○ What is not barred?
• →Actions against local governments
• →Actions by the United States Government
• →Actions by other states
 →have to show direct injury to the state, OR
 →a significant portion of the population has suffered injury
• →Bankruptcy Proceedings
○ Exceptions:
• Certain Actions against State Officers:
 →Actions against state officers for prospective relief (injunctions)
 →Actions against state officers for monetary damages from officer b/c it is against the individual
acting outside of his official capacity so he is stripped of immunity (stripping doctrine)
 →Actions against state officers for prospective payments from state treasury (can't be retroactive)
• Congressional Removal of immunity under the 14th amendment
○ Cases:
• Ex Parte Young
 →Fed. Court could issue an injunction against state officials who sought to enforce an
unconstitutional state law, on the ground that the ∆ was not really the state but rather the official
acting beyond his constitutional authority
• Edelman v. Jordan
 →Eleventh Amendment permitted lawsuits for prospective injunctive relief against state officers,
although not law suits for retrospective relief via judgment for damages
• Fitzpatrick v. Bitzer
 →Congress may abrogate the state's immunity from suit in federal court by making its intention
unmistakably clear in the language of the statute
• Pennsylvania v. Union Gas Co.
 →Congress has the authority to create a course of action when legislating pursuant to the
Commerce Clause and such suits are not barred by the eleventh amendment
○ ROL=The courts cannot have jurisdiction over a state that does not consent to being sued; Eleventh
Amendment restricts the judicial power under Article III and Article I cannot be used to circumvent the
constitutional limitations placed upon federal jurisdiction
• Seminole Tribe of Florida v. Florida
 →Overrules Pennsylvania v. Union Gas co and
• →holds that Congress, when acting under its Art. Section 8 power, may not abrogate a state's
sovereign immunity w/o the state's consent; This case arose from the Indian Gaming
Regulatory Act which provided that an indian tribe may conduct certain gaming activities

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only in conformance w/ a valid compact btw the tribe and state in which the activities are
located, unconstitutional b/c it requires the state to deal in good faith w/ the indian tribes or be
subject to a lawsuit
• →Congress can only abrogate a state's immunity through 14th Amendment legislation!
○ State Sovereign Immunity in State Courts
• ROL=Congress cannot abrogate a state's sovereign immunity from lawsuits against that state in its own
courts
 →**Exceptions:
• →Suits by the federal government itself
• →Suits brought under section 5 of the 14th amendment
 Alden v. Maine
• →Affirmed dismissal of a suit filed in Maine st. ct. by state probation officers seeking
damages for the state's failure to pay them overtime compensation required by the federal Fair
Labor Standards Act
○ State sovereign immunity and other federal laws
• ROL=Valid 14th amendment legislation is the sole of possible congressional authority to abrogate
sovereign immunity
 Kimel v. Florida Board of Regents
• → Congress exceeded its 14th amendment authority in allowing state employees to sue the
states for violations of Age Discrimination in Employment Act. B/c the ADEA failed the
congruence and proportionality test,
 →Congress' attempt to abrogate the state's sovereign immunity was unconstitutional
 Board of Trustees of the University of Alabama v. Garrett
• →Held invalid Congress's attempt to abrogate sovereign immunity for state-employer
violations of Title 1 of ADA because it was not a valid exercise of 14th amendment power
○ Federal Power vs. Federal Remedies
• Alternative mechanisms of enforcing federal laws against states:
 Injunctions against state officials (Ex Parte Young)
 Officials may enforce federal statutes through federal agencies at federal expense
 Congress may condition fed. Spending programs on states' agreement to waive sovereign immunity
○ State Sovereign Immunity and Federal Agency Proceedings
• ROL=State sovereign immunity extends to adjudications within federal administrative agencies
 →Hans Presumption
• →Constitution was not intended to raise up any proceedings against the States that were
anomalous and unheard of when the Constitution was adopted
 FMC v. South Carolina State Ports Authority
• →Sovereign immunity bars the FMC from ajudicating complaints filed by private
parties against a nonconsenting state b/c sovereign immunity bars civil litigation
and FMC administrative proceedings and civil litigation are very similar
○ State Sovereign Immunity and the Bankruptcy Power
• Art 1. Section 8, cl. 4="Congress shall have the power to establish uniform laws on the subject of
bankruptcies throughout the United States"
 →ROL= State sovereign immunity does not bar Congress from subordinating a state entity to other
creditors in a federal bankruptcy proceeding
• Taxing, Spending, War, treaties, and Foreign Affairs
○ →Art. 1., Section 8 cl. 1: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to
pay the debts and provide for the common defense and general welfare of the United States
• →Taxing Power
 ROL= A tax is invalid when it acts as a penalty in regulating an activity;

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 →Taxes are sometimes imposed primarily to obtain motive but w/ the incidental motive
of discouraging certain activities…But when the primary motive is regulation and
punishment it is no longer a tax, but becomes a penalty
• Bailey v. Drexel Furniture Co. (Child Labor Tax Case)
 → they couldn’t do this under the commerce power so…Congress imposes a tax on
child labor for departure from a detailed and specified course of business. Employers
who violate the standards have to pay 1/10 of their entire net income in business for a
full year. Court says this a penalty rather than a tax b/c Congress is attempting to
regulate and punish child labor and is therefore invalid
• →Veazie Bank v. Fenno
• →Court upheld a tax on circulating notes of persons and state banks from
1% to 10% and the tax was challenged as being excessiv. Court says
congress may restrain by suitable enactments, circulation of money of any
notes not issued under its own authority
• →McCray v. United States
• →Tax on oleo margin upheld b/c a motive disclosed in selecting a subject
for taxation to discourage sale of manufacture of an article by a higher tax on
some other does not invalidate the tax…judicial inquiry into congressional
purpose is improper
• →United States v. Doremus
• →Narcotic Drug Act cannot be declared invalid just b/c another motive other
than taxation might have contributed to its passage
 →Federal Excise and License Taxes
• →ROL=Where intent to prohibit and to punish violations of state law is evident, the tax
should be considered a penalty
• →ROL=A federal excise tax does not cease to be valid merely b/c it discourages or deters the
activities taxed nor is it invalid b/c the revenue obtained from it is negligible
• United States v. Kahriger
• →Court upheld a federal occupational tax imposed on gambling; The act levied a
tax on persons engaged in the business of accepting wagers and required such
persons to register w/ the IRS
• →Spending Power
 →ROL: Congress may spend in any way it believes would serve the general welfare, so long as it
does not violate another constitutional provision
• →2 limits on tax & spending:
• →“General Welfare” phrase; and
• →10th Amendment
 →Two Views:
• →Madison View=Power to tax and spend is only incidental to the exercise of the
enumerated legislative powers and should be so be confined
• →Hamilton View=Separate and distinct from the enumerated powers and is not limited
by them; limited only by the requirement that it shall be exercised to provide for the
general welfare of the United States
 →ROL=The attainment of a prohibited end may not be accomplished under the pretext of the
exertion of powers which are granted
• United States v. Butler
• →Adopts Hamiltonian view of spending=Agricultural Adjustment Act of 1933, which
sought to stabilize farm prices by curtailing agricultural production authorizes sec. of
agri. To make contracts with farmers to reduce their productive acreage in exchange for
benefit payments. The payments came from a processing tax paid by the processor.

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Case arose from imposition of a processing tax on cotton upon a corporation, Butler
attacked the tax, claiming that it sought to unconstitutionally regulate agriculture which
is the province of the states
• →Court says this isn't allowed b/c fed. Gov. isn't allowed to intermeddle into
matters of state concern and cannot appropriate money necessary to purchase
compliance with a regulation which otherwise could not be enforced also b/c it is
coercive in nature
 →ROL=Abatement of a tax upon the doing of an act that will satisfy the fiscal need, tax and
alternative being approximate equivalents, inducement or persuasion does not go beyond the
bounds of power
• Charles C. Steward Machine Co. v. Davis
• →Court upheld unemployment compensation provisions of the Social Security Act;
credit provision in the tax was sought to induce the enactment of state laws that
complied w/ federal standards; Employer was entitled to a credit of up to 90% of the
federal tax for any contributions to a state unemployment fund certified by a federal
agency as meeting the requirements of the Act….
• →Court distinguishes Butler:
• →Proceeds of the tax not earmarked for a special group
• →Unemployment compensation law has had the approval of the state and
could not be a law w/o such approval
• →Condition is not linked to an irrevocable agreement (state itself could
repeal its law, terminate the credit, and return to where it was before)
• →Condition is not directed to the attainment of an unlawful end
• Helvering v. Davis
• →discretion belongs to congress, as to whether the spending power has invaded the
province of the states
 Current Approach to Conditional Spending
• →Limitations on the spending power (4 part test):
• →Must be in Pursuit of the General Welfare
• →Congress must unambiguously condition states' receipt of federal funds, enabling
states to exercise their choice knowingly
• →Must be related to the federal interest in particular national projects
• →Other constitutional provisions may provide an independent bar to conditional grant
of federal funds
• South Dakota v. Dole
• →Arose from a challenge to a federal law that conditioned highway funds to states on
the states' agreement to raise the drinking age; statute directed Sec. of Transp. To
withhold 5% of federal highway funds to any state that sold alcohol to people under 21;
• →Court found that the federal law did not violate the 21st amendment b/c
Congress is allowed to achieve indirectly what it cannot do directly as long as it
comports w/ the other requirements of the spending power…Rather the spending
power may not be used to induce states to engage in activities that would be
unconstitutional
• →Court says Congress is allowed to condition receipt of highways funds on
states raising their drinking age b/c the relatively small tax is not coercive
and 21st amendment poses no independent bar
• →War and Treaty Powers and Implied Power Over Foreign Affairs
 →ROL=War power includes the power to remedy the evils which have arisen from its rise and
progress and continues for the duration of the emergency
• →War power does not necessarily end with the cessation of hostilities!!

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• Woods v. Cloyd W. Miller Co.
• →Congress passed the Housing and Rent Act of 1947 (federal rent controls) to
deal w/ the shortage of housing after World War II b/c of demobilization of
veterans and shortage of building materials;
• →Court says Congress was invoking its war power to cope w/ a current
continuing condition of which the war was a direct and immediate cause
therefore the statute is a valid exercise of the war power
 →ROL=Congress can freely make treaties as long as they do not violate the Constitution...
• Missouri v. Holland
• →US made a treaty w/ Great Britain to protect migratory birds;
• →Court upholds the treaty as coming under the power to make treaties as long as
it doesn't violate the Constitution…against 10th amendment challenge, it doesn't
violate the tenth amendment b/c the birds being protected are transitory and do not
have a permanent habitat in the United States…
• Supremacy of Treaties over state law
• →ROL=valid treaty overrides a state law on matters otherwise within state control
• Treaty power and Congress's other powers
• Reid v. Covert
• →Dealt w/ congressional power to provide for military jurisdiction over civilian
dependents of American servicemen overseas…Justice Black says that no
agreement (treaty) w/ a foreign nation can confer power on Congress or any other
branch of government, which is free from the restraints of the Constitution…
• Congressional Power over Foreign Affairs
• →ROL=Even though there is no specific grant of power to Congress to regulate foreign
affairs in the Constitution, it is necessary and proper for the government to function
effectively in dealing w/ foreign nations
• Zschernig v. Miller
• →Court barred application of a state alien inheritance law b/c it intruded into
the field of foreign affairs which the constitution entrusts to the President and
Congress
• Federal Limits on State Regulation of Interstate Commerce
○ →Three Situations (Old School):
• →Dormant Commerce Clause=Congress is silent on the matter court looks at the negative implications
of the commerce clause
 ROL=Where there is a conflict btw a federal law and state law regulating commerce, the federal
law will prevail
• Gibbons v. Ogden pt II
• →Held that NY navigation laws regulating interstate commerce must yield to the law of
Congress
 ROL=a state can make regulations of commerce for the protection and health of its citizens as long
as they do not conflict with a law of congress
• Willson v. Black Bird Creek Marsh Co.
• →Court upheld constitutionality of a state law that authorized construction of a dam
across a navigable stream b/c it was under the state's police power rather than commerce
power
 ROL=Mere grant of commerce power to congress does not deprive the states of their power to
regulate commerce where congress has legislated on the matter and has explicitly left its regulation
to the states
• Cooley v. Board of Wardens

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•→arises from a PA law that required ships entering or leaving the port of Philly to
engage a local pilot to guide them through the harbor, if not a penalty was imposed.
There was also a congressional statute saying you have to follow the laws of the states.
The Court upheld the PA law b/c the federal said to follow the state regulations and the
mere fact of congress having commerce power does not make it exclusive enough to
exclude state regulation
• National vs. Local Distinction
• →Regulations national in character are to regulated exclusively by congress
however regulations local in character can be regulated by the states
• Direct vs. Indirect Distinction
• →Direct burdens on interstate commerce are unconstitutional but indirect burdens
are allowed
 →ROL=Congress can consent to state regulations of commerce that would otherwise be barred by
the dormant commerce clause
 →Modern Trends:
• Three Categories:
• →State laws that facially discriminate against out of state commerce are per se invalid
• →Apparently facially neutral laws that favor local interests at the expense of out of state
competitors
• →Invalid if they have an impermissibly protectionist purpose or effect!
• →facially neutral laws that have a disproportionate adverse effect on interstate
commerce (applies a balancing approach)
• Facial Discrimination:
• →ROL=State laws w/ solely protectionist purposes are always invalid
• Philadelphia v. New jersey
• →Court held unconstitutional a NJ law that prohibited the importation of
most solid or liquid waste which originated or was collected outside the
state. Court says it facially discriminated against interstate commerce b/c its
main purpose was protectionist to suppress competition and stabilize prices
for NJ residents and was therefore invalid.
• →Test: Whether the law is basically a protectionist measure, or
whether it can be fairly viewed as a law directed to legitimate local
concerns, w/ effects upon interstate commerce that are only incidental
• Permissible Facial Discrimination(Exceptions):
• →Quarantine laws
• Maine v. Taylor
• →court upheld a state law banning importation of out of state baitfish b/c it
had a legitimate environmental purpose
• →Once a state law is shown to discriminate against interstate commerce, the
burden is on the state to show BOTH that the statute:
1) →Serves an important local purpose; AND
2) →That the purpose could not be served as well by available
nondiscriminatory means.
• →State Hoarding of Natural Resources:
• Hughes v. Oklahoma
• →Held invalid under the commerce clause an OH law forbidding any person to
transport or ship minnows for sale outside the state which were procured w/in the
waters of that state. It was invalid under the dormant commerce clause b/c it
discriminated against interstate commerce and the state had not first tried any
nondiscriminatory alternatives

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• →Facially Discriminatory Taxes:
• →ROL=Where a state regulation impermissibly discriminates against interstate
commerce, taxation of that subject as a means of regulation is also unconstitutional
• →Exception: a facially discriminatory tax that imposes on interstate commerce
the rough equivalent of an identifiable and substantially similar tax on intrastate
commerce does not offend the dormant commerce clause
• Oregon Waste Systems, Inc. v. Department of Environmental Quality
• →A state law imposed a higher tax on out of state waste which was
discriminatory. Court strikes it down and says it is also subject to the
per se rule of invalidity.
• →Facially Discriminatory Subsidies:
• →ROL=States cannot tax all producers of a product and then provide subsidies to
instate producers by giving them a rebate part of the proceeds
• →Straightforward cash state subsidies of in state business are permissible under
the dormant commerce clause**
• West Lynn Creamery, Inc. v. Healy
• →Court invalidated Mass. Law that imposed an assessment on all sales of
milk to Mass. Retailers, but rebated all the proceeds from the assessment to
Mass. Dairy farmers. b/c it made milk produced out of state more expensive,
thereby allowing higher milk prices in Mass. To compete with the lower out
of state prices
• →Home Processing Requirements=Requirements that products be shipped, inspected,
processed, or treated inside the state before they may be shipped out of state are usually
invalid
• →ROL=A discriminatory state or local law may be valid if it furthers an important,
noneconomic state interest and there are no reasonable nondiscriminatory alternatives
• Dean Milk Co. v. Madison
• →Court invalidated an ordinance barring the sale of pasteurized milk unless
it had been processed and bottled at an approved pasteurization plant within
5 miles of the central square of Madison, WI. The ordinance was challenged
by a milk producer based in Ill. That pasteurized its milk there.
• →ROL=States/local gov. may not use their regulatory power to favor local enterprise by
prohibiting patronage of out of state competitors or their facilities
• C & A Carbone, Inc. v. Clarkstown
• →An ordinance requiring all nonhazardous waste to be deposited in a
privately owned facility within the state was unconstitutional b/c it
discriminated against interstate commerce by prohibiting out of state
facilities from soliciting business from in state entities
• →ROL=Laws that favor the gov. in traditional governmental areas, but treat all private
businesses (whether in state or out of state) the same, do not discriminate against
interstate commerce
• United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management
Authority
• →Similar facts to Carbone, except that the ordinance required all waste to be
disposed of in a state-run waste facility. Court said this is ok b/c government
has legitimate interests in discriminating against interstate commerce
unrelated to protectionism
• →"Market Participant Exception"=Applies when government acts as a buyer or seller of
goods or services or engages in a program of subsidies or other economic incentives to aid
instate businesses

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• →State purchasing scrap cars from its citizens at a higher price than what it pays
nonresidents=OK
• →State policy restricting the sale of cement from a state-owned plant to state
residents=OK
• →City ordinance requiring all construction projects funded by city funds to be
performed by a workforce of at least 50% city residents=OK
• Limitations:
• →Interstate Privileges and Immunities Clause
• →"Downstream" Restrictions
• →state cannot avail itself of the market participant doctrine to immunize its
downstream regulation of a market in which it is not a market participant and
consequent burdens on interstate commerce
• →ROL=State cannot impose conditions that have a substantial
regulatory effect outside of that particular market
• →South Central Timber Development, Inc. v. Wunnicke→
Alaska proposed sale of state-owned timber subject to the
condition that the purchaser process the timber in Alaska before it
was shipped out of state. Court struck it down b/c it had
downstream effects on interstate commerce which were outside
the market in which the state participated
• →Facially Neutral Laws with Protectionist Purpose or Effect
• →Protectionist purpose can be inferred from the effects of a state rule
• →ROL=One state in its dealings w/ another may not place itself in a position of
economic isolation
• →ROL=Police power may not be used by the state of destination w/ the aim and
effect of establishing an economic barrier against competition w/ the products of
another state
• Baldwin v. Seelig
• → Arose from state effort to stabilize milk prices. Milk control act
prohibited NY sales of out of state milk if the milk had been purchased
below the price for similar purchases within NY. State claims that
economic benefit is only a secondary motive and that the law was
primarily for the health and general welfare of its citizens. Court held
the law unconstitutional as applied to out of state milk producers.
• H.P. Hood and Sons v. Du Mond
• →Statute which required a commissioner to determine whether or not
granting of an additional license to distribute milk would affect the
intrastate market was unconstitutional b/c by that rationale, the state
could deny foreign distributors licenses at the outset, which directly
affects interstate commerce
• →dealt w/ power of a state to deny additional facilities to acquire
and ship milk in interstate commerce where the grounds of denial
are that such limitation upon interstate business will protect and
advance local economic interests
• →Identifying Protectionist Purposes and Effects
• Hunt v. Washington State Apple Advertising Comm'n
• →Court invalidated a NC law requiring that closed containers of apples offered
for sale or shipped into the state bear no grade other than the applicable US grade
or standard. Washington, however, had its own standards. Court says this burdens
interstate commerce b/c:

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• → Increases costs of doing business within the state of NC
• → Strips away Washington apples' reputation
• → Protects NC growers by leveling Washington apples w/ NC apples
• →ROL=Any effort to confer a benefit upon a local industry not granted to out of state
industry is presumptively invalid as discrimination under the commerce clause
• Bacchus Imports, Ltd. v. Dias
• →Hawaii tax on liquors and fruit wine produced instate invalid. Violated
the commerce clause b/c it had both the purpose and effect of discriminating
in favor of local products.
• →ROL=Commerce Clause protects the interstate market, not particular interstate firms
• Exxon Corp. v. Governor of Maryland
• →Court upheld a law prohibiting refiners or producers of petroleum from
operating retail service stations within MD. No gas was produced or refined
in MD, therefore it all traveled in interstate commerce. Court says it doesn't
discriminate against interstate goods, nor does it favor local producers and
refiners, therefore it is OK.
• Minnesota v. Clover Leaf Creamery
• →Upheld a state law that banned retail sale of milk products in plastic
nonreturnable containers but permitted the same if they were made of
pulpwood. Court says it doesn't discriminate b/c it prohibits all milk retailers
from selling their milk in plastic containers w/o regard to whether they are
instate or out of state.
• →Unconstitutional=
• Favors Local producers or Out of State Producers
• Exempting Local products from tax, while taxing out of state products
• Conditions granting of an additional license to distribute on whether it is
destructive competition
• Prohibits buying milk out of state if bought at a lower price than instate
• →Constitutional=
• Prohibits operation of businesses within state by producers of that product when
there are no producers of it instate
• Banning the selling of products in certain containers when that ban is across the
board (affects instate and out of state distributors equally)
• →Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce= laws
that are neither protectionist nor discriminatory
• →"Balancing Test"=Where a statute regulates even-handedly to effectuate a legitimate
local public interest, and its effects on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is clearly excessive in relation to
the putative local benefits
• Pike v. Bruce Church, Inc.
• →Arizona statute requiring arizona grown cantaloupes advertise their state
of origin on each package ("Home Processing Requirement"). Church, an
AZ grower, sent theirs to CA where they were cheaper to pack.
• →Court said the burden imposed on the grower to build its on packing
plant within the state was too great in relation to the local benefits
under the balancing test
• Kassel v. Consolidated Freightways Corp.
• →Challenge to an Iowa statute that prohibits the use of certain large trucks
within the state on b/c it unconstitutionally burdens interstate commerce. It
is a huge pain in the ass to interstate commerce b/c∏ can't bring its big

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trucks through Iowa and instead have to go around. State failed to produce
evidence demonstrating that the statute has any safety benefits, therefore
there is no countervailing local interest against which to balance the burden
on interstate commerce, the statute is unconstitutional
• →Opinion says you have to look at congressional intent in
promulgating the statute, not what the defense lawyers stated purpose
is...
• →Balancing Interstate Harm Against Local Benefit
• South Carolina State Highway Department v. Barnwell Bros
• →Court upheld SC law prohibiting trucks that were over 90 inches wide or
over 20,000 lbs. Safety is a legitimate local concern and the statute is not
invalid even though it burdens interstate commerce as long as it does not
discriminate against interstate commerce
• Southern Pacific Co. v. Arizona
• →Court rejected an AZ statute limiting the length of trains going through the
state b/c national uniformity is necessary to maintain an efficient railroad
system and only Congress can regulate this matter
• Bibb v. Navajo Freight Lines, Inc.
• →Ill law requiring use of contoured mud flaps on trucks and trailers
conflicted w/ an Ark. Law requiring straight mudguards, forbidding
contoured ones and was inconsistent w/ 45 states which authorized straight
mudguards. Struck down b/c it placed an unconstitutional burden on
interstate commerce
• →Business Entry
• Lewis v. BT Investment Managers, Inc.
• →court struck down a FL law prohibiting ownership of local investment
advisory businesses by out of state banks, bank holding companies and trust
companies.
• →Prevents foreign enterprises from competing in local markets,
therefore cannot be justified as an incidental burden necessitated by
legitimate local concerns
• Edgar v. Mite Corp.
• →Court held unconstitutional Ill law designed to regulate tender offers made
to target companies that had certain specified business contacts with Ill.
• →Court applied the "Pike" balancing test and found that the statute
imposed a substantial burden on interstate commerce which
outweighed its local benefits
• Cts Dynamic Corp. v. Dynamics Corp. of America
• →upheld IN law providing that a purchaser who acquired controls shares in
an indiana corporation could acquire voting rights only to the extent
approved by a majority of the vote of the prior disinterested stockholders.
• →Commerce Power=Congress has exercised its power challenging inconsistent state action
under commerce clause and supremacy clause
• →Privileges and Immunities Clause=bars certain state legislation that discriminates against
out of state economic interests
○ →Interstate Privileges and Immunities Clause of Article IV
• →ROL=The citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states
 Serves as a restraint on state efforts to bar out of staters from access to local resources
 Protects citizens against discrimination on the basis of state residency

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•→Differences from commerce clause:
 Corporations enjoy no protection here
 Congress cannot waive privileges and immunities rights
 Extends only to exercise of fundamental rights
 Also less demanding standard of review (gov. only needs to show a substantial interest, not a
compelling interest)
• United Building & Construction Trades Council v. Mayor and Council of Camden
 →ordinance requiring that at least 40% of the employees of contractors and subcontractors working
on construction projects be Camden residents.
• →Court says it doesn't matter that the also ordinance discriminated against Non Camden NJ
residents b/c they can resort to the political process to vindicate their rights; so long as it
discriminates against nonresidents the statute is unconstitutional.
• →Two part test=
• →Court must decide whether the ordinance burdens one of those privileges and
immunities protected by the Clause
• →Whether an out of state resident's interest in employment on public works
contracts in another state is sufficiently fundamental to the promotion of interstate
harmony as to fall within the purview of the clause
• In order to justify discrimination= nonresidents must somehow be shown to constitute a
peculiar source of the evil at which the statute is aimed
 Supreme Court of New Hampshire v. Piper
• →state rule limiting bar admission to in state residents violated the privileges and immunities
clause. Woman who lived in VT took and passed the NH bar, but was denied admission b/c
she was out of state resident
• →Clause does not preclude discrimination against nonresidents where=
• →There is a substantial reason for the difference in treatment, and
• →The discrimination practiced against nonresidents bears a substantial
relationship to the state's objective
• →Court considers the availability of less restrictive means
• →Court says the practice of law is a fundamental right!
○ Preemption
• →Supremacy Clause=The constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States,
shall be the Supreme Law of the land
 →ROL=When congress exercises a granted power, the federal law may supersede a contrary state
law b/c of the operation of the supremacy clause
• →Three types of preemption:
• Express preemption
• Congressional intent from a scheme of fed. Reg. so pervasive as to make reasonable the
inference that Congress left no room to supplement it
• Actual conflict w/ a contrary state law
• Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm.
• →Case deals w/ a statute enacted by congress and a state statue which are both
attempting to regulate nuclear waste disposal. Court held that congress left sufficient
authority to the states to allow development of nuclear power to be slowed or even
stopped for economic reasons.
• →When the fed. Gov. completely occupies a given field or an identifiable portion of it=
• →Whether The matter on which the state asserts the right to act is in anyway
regulated by the federal government

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 →Field Preemption=scheme of federal regulation so pervasive as to make reasonable the inference
that congress left no room to supplement it
• Rice v. Santa Fe Elevator Corp.
• →Area that states typically regulated under their police powers. Court says the federal
government cannot supersede historic state police powers unless it was the clear and
manifest purpose of congress.
 →Conflict Preemption=
• →When congress has enacted a complete scheme of regulation, states cannot inconsistently
with the purpose of congress conflict or interfere with curtail of complement the federal law
• Hines v. Davidowitz
• →State law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of congress
• → Identification of the federal objective
• → Determination of the extent to which state law interferes
• Florida Lime & Avocado Growers v. Paul→ described conflict preemption as a situation
where compliance with both federal and state regulation is a physical impossibility. FL
avocados were considered mature under fed. Regulations but did not have the minimum oil
content under CA standards. Court upheld this b/c CA only required a minimum standard
(there was no physical impossibility of complying w/ both standards)
• Gade v. National Solid Waste Management
• → Federal scheme which forbade duplicative regulation, court departs from the clear
and manifest intent requirement when superseding state police powers
 Preemption and foreign affairs power= President is invested w/ authority to handle foreign affairs
and the states cannot interfere w/ this authority
• Crosby v. National Foreign Trade Council→
• → Federal sanctions against the nation of Burma superseded the more stringent
sanctions imposed by Mass. Laws b/c they interfered w/ Congressional objectives
• Congressional Consent to State Regulation
 → Congress can validly consent to state laws when the constitutional limitation on state power is
not matched by a similar or identical limitation on federal power
• Federal development grants and local-hire rules
 → Court upheld an executive order by Mayor of Boston reserving 50% of jobs on public works
projects to Boston residents
• → Upheld against dormant commerce clause challenge under the market participant
exception
• Where state or local government action is specifically authorized by congress, it is not
subject to the commerce clause even if it interferes with interstate commerce
○ State Taxation of interstate business
• Complete Auto Transit v. Brady→
 → Court upheld against commerce clause challenge a Miss. Tax on shipper of automobiles for the
privilege of doing business in the state
• → Interstate commerce is not immune from state taxation
 Four-part test→ state tax may be sustained when:
• Applied to an activity w/ a substantial nexus with the taxing state
• Fairly apportioned
• Does not discriminate against interstate commerce
• Fairly related to the services provided by the state
• Quill Corp v. North Dakota→
 → substantial nexus w/ the state is greater than minimum contacts with a state required under the
due process clause

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• Held it permissible under due process, not under the Auto transit test to tax out of state
business that had no physical presence in the state and whose only contacts w/ the state were
by common carrier or the mails
○ Intergovernmental Tax Immunities
• States cannot impose property taxes directly on federal property or activities
 2 situations:
• → When the tax falls on the US itself; or
• → On an agency or instrumentality so closely related to the gov that the two cannot be
separated
• Neither States nor federal government can destroy the autonomy of the other
○ Mutual Obligations Among the States=
• Privileges and Immunities Clause
• Extradition Clause:
 When demanded, A fugitive from justice must be delivered by the state to which he fled
• Interstate compact Clause:
 States cannot compact w/ each other so as to impair the supremacy of the United States
• Separation of Powers
○ Executive Power=shall be vested in a president; that he shall take care that the laws be faithfully executed;
and that he shall be commander in chief of the army
• ROL=President's power must either stem from an act of congress or the constitution itself
 Youngstown Sheet & Tube Co. v. Sawyer→ steel workers went on strike, so the president seized
the steel mills to continue producing b/c the country was at war and necessary to stop a national
catastrophe. Held that the power to make laws belongs to congress and he overstepped his
boundary in this case. Congress retains authority to raise and support armies and provide and
maintain the navy.
• 3 ebbs of Presidential Power=
• When the president acts pursuant to an express or implied authorization of Congress, his
authority is at is maximum ↓
• When president acts in absence of either a congressional grant or denial of authority , he
can only rely on his own independent powers (but there is a zone where he and congress
may have concurrent powers)
• ↓
• When the president takes measures incompatible w/ the expressed or implied will of
congress, his power is at its minimum (he can rely on his own powers, minus any
constitutional powers of congress in the matter) ↓
• Executive Agreements
 → Interstate compacts are separate from treaties which require the advice and consent of the senate
• → narrow and limited in scope
 → Held that an executive agreement takes precedence over conflicting state policy
• Dames & Moore v. Regan
• → President's action in nullifying Iranian attachments and ordering transfer of frozen
assets was taken pursuant to congressional authorization, therefore:
• → it is supported by the strongest presumption and the widest latitude of judicial
interpretation, places a heavy burden of proof on anyone who challenges it
• Burden of proof was not met in this case
• Emergency Powers
 Ex Parte Milligan
• → Milligan was a long time resident of Indiana, a non-rebellious state. He was arrested and
captured when he was suspected of being involved in the rebellion. He was tried by a

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military tribunal, convicted and sentenced to death. But the Court issued a writ of habeas
corpus.
• → Court held that president's suspension of writ of habeas corpus had not properly
empowered him to try and convict before military tribunals citizens who had been detained
during the war
• Based on idea that constitution should apply the same during times of peace and war
• Milligan was entitled to:
• → an Article III civilian court
• → trial by jury
• Martial Rule can only apply when:
• → Foreign Invasion, or
• → Civil War, where
• → The courts are actually closed!
• Executive Detention and the trial of Enemy Combatants
 → Habeas Corpus
• Suspension of writ may require legislative approval
 Ex Parte Quirin
• → Whether the detention of petitioners for trial by Military commission, appointed by order
of president, on charges preferred against them purporting to set out their violations of the law
of war and articles of war, is in conformity w/ the laws and constitution of the US
• → Germans came over in a submarine to try and attack the US when we were at war w/
Germany
• Court held that they were in violation of law of war enacted by Congress, therefore
they were properly triable by a military court
 → Lawful Combatants=
• Subject to capture and detention as prisoners of war by opposing military forces
 → Unlawful Combatants=
• Also subject to capture and detention
• Subject to trial and punishment by military tribunal
• Executive Detention and Trial of Enemy Combatants after 9/11
 Johnson v. Eisentrager
• → German civilians accused of being enemy aliens captured in a theater of war were tried by
a military tribunal
• → could not be extended the privilege of litigation in US courts b/c they at no relevant
time were within any territory over which the US is sovereign
 Rasul v. Bush
• → Guantanamo detainees claimed they were being held unlawfully
• → Whether the habeas statute confers a right to judicial review of the legality of
executive detention of aliens in a territory over which the US exercise plenary and
exclusive jurisdiction, but not ultimate sovereignty
• Held that the habeas statute applied to Guantanamo detainees b/c it was US
territory where there is jurisdiction, distinguishable from Eisentrager
• Court has power of judicial review over habeas corpus applications!
 Hamdi v. Rumsfeld
• → whether the executive has authority to detain citizens who qualify as "enemy combatants"
• → Held that although congress authorized detention if combatants, due process
demands that a citizen held in the US as an enemy combatant be given a meaningful
opportunity to contest the factual basis for that detention before a neutral decision maker
• In this case congress had authorized the detention, so no need to determine
whether article 2 confers that authority

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• Does not apply to initial capture, only when citizens are to be detained for an
indefinite amount of time!
• → Due Process to be given is determined by weighing=
• Private interest that will be affected by the official action
• Against the gov's asserted interest, including:
• The function involved, and
• Burdens the gov would face in providing greater process
 Padilla v. Rumsfeld
• → American citizen arrested by feds in Chicago airport for helping to plot a bombing, turned
over to Dept of defense as an enemy combatant
• → Held that the Non-Detention act constituted express congressional prohibition against
executive detentions absent congressional authorization, placing Bush's power at lowest
ebb
• → Pres using his own powers, minus any power of congress over the matter
• Military tribunals for enemy combatants
 Hamdan v. Rumsfeld
• →Yemeni national, captured in Afghanistan and was prisoner at Guantanamo. Pres deemed
eligible for trial by military tribunal
• →Court held that the military commission convened to try Hamdan lacks power to
proceed b/c in violation of UCMJ and Geneva Conventions
• Military commissions typically used in 3 cases=
• →times and places where martial law is in place
• →temporary military government in occupied enemy territory
• →when there is a violation of laws of war
○ Congressional Violation of the Separation of Powers
• Congressional Control over the actions of the executive branch
 →Nondelegation
• →Congress may not delegate its powers to another branch
• →Does not prevent Congress from seeking assistance from other branches
• United States v. Curtiss-Wright Export Corp.
• →Nondelegation principle is weaker for foreign affairs than domestic affairs
• →Involved joint resolution of Congress to prohibit sale of arms to Bolivia and
Paraguay, Pres proclaimed an embargo
• →Court held that President alone has the power to speak w/ regards to foreign
nations, Congress cannot infringer on this authority
• INS v. Chadha
• →statute authorizing one house of congress to invalidate decision of executive branch to
suspend deportation of a deportable alien if the alien met specified conditions and would
suffer extreme hardship if deported. House passed a resolution that the deportation of
Chadha not be suspended.
• →Presentment Clauses=all legislation must be presented to president before
becoming law, and gave Pres the right to veto legislation
• →Bicameralism=Has to pass two houses of Congress, but then Pres has unilateral
veto which can be overruled by 2/3 vote of both houses
• →Congress delegated authority concerning deportation to attorney general
• →Held that actions taken by the house were unconstitutional b/c it didn't fall into either
of the 4 exceptions authorizing one house to act alone
• →Decision strikes down the legislative-veto
 →Presidential Vetoes
• →Line item veto

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• Clinton v. New York
• →Pres clinton used line item veto to cancel a provision in the balanced budget act
allowing NY to keep certain funds it would otherwise have to pay fed gov under
medicaid program, several organizations challenged the cancellation
• →Held that the Line item veto is unconstitutional and violation of separation
of powers b/c it allows the Pres to create new law, which is the legislature's
job violates art. 1. sec. 7
 Congressional Control Over Executive Officers
• →President can appoint superior officers under the Appointments Clause with the advice and
consent of senate but grants congress authority to appoint inferior officers who report to
superior officers
• Buckley v. Valeo
• →Congress appointed a bunch of officer to the FCC in violation of the
appointments clause
• →Congress can't do this b/c it is the president's job to appoint superior
officers that who undertake executive or quasi-judicial tasks.
 Removal of Executive Officers
• →Appointments clause is silent as to removal of executive officers
• Bowsher v. Synar
• →Whether the assignment by congress to the comptroller general of the US of
certain functions violates separation of powers
• →Constitution doesn’t contemplate an active role for congress in the supervision
of officers charged w/ execution of the laws it enacts
• →Once appointment has been made, constitution explicitly provides for
removal of officers of the US by Congress only upon impeachment by the
House and conviction by Senate
• →Court held that congress cannot reserve to itself power of removal other than by
impeachment and comptroller is a position of executive nature designed to
implement legislation therefore can only be removed by impeachment
• →allows congress to intrude on the executive function
 Fettering Executive Removal Power
• Myers v. United States
• →Court held unconstitutional a statute providing that certain groups of postmasters
could not be removed by the pres w/o the consent of senate
• →Unconstitutional restriction on pres control over executive personnel
• →Myers Rule=unrestrictable power of the pres to remove purely executive officers
• Humphrey's Executor v. United States
• →Held that pres could not remove a member of an independent regulatory agency in
defiance of restrictions in the statutory framework
• →Congress could limit the pres power of removal of FTC commissioner to
removal for cause and limited Myers to purely executive officers
• →Officers here were quasi-judicial and quasi-legislative
• Wiener v. United States
• →Applied Humphrey's rule rather than Myers rule
• →Held removal by pres unconstitutional b/c it was intrinsically judicial
• →Power to remove only exists if Congress confers it
 Constitutionality of Independent Counsel
• →Congress created independent counsel to investigate possible criminal wrongdoing by high
ranking executive officers can conduct preliminary investigations. Counsel could only be
removed for good cause by the attorney general and is subject to judicial review

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• Morrison v. Olson
• →Issue Is whether the restriction of having to show good cause for removal interferes
w/ president's duties
• →When congress creates a temporary office, the nature and duties of which will
by necessity vary with the factual circumstances giving rise to the need for an
appointment in the first place, it may vest power to define the scope of the office
in the court as an incident to the appointment of the officer pursuant to the
appointments clause
• →Independent counsel does not need to be terminable at will by pres in order to
avoid intruding on executive authority
• →Does not exceed authority under sep of powers
• →congress is limited to receiving reports of the counsels findings, which is a
legislative function
• →No judicial usurpation
• →terminable by attorney general, an executive branch office
 Other interbranch appointments
• Mistretta v. United States
• →Court rejected attacks on the unusually composed US sentencing commission
• →commission was set up as an independent commission in the judicial branch
• →Members removable by pres for good cause
• →Case applied Morrison approach
• →Congress' decision to create an independent rulemaking body and vest its authority in
the judicial branch is not unconstitutional unless Congress has vested in the Commission
powers that are more appropriately performed by the other branches or that undermine
the judiciary
• →Rulemaking can constitutionally be performed by the judiciary
• →does not violate sep of powers
• →does not interfere w/ judiciary
○ Executive Privileges and Immunities
• United States v. Nixon
 →members of pres Nixon's reelection committee stole tapes from democratic headquarters.
Congress appointed special prosecutor to investigate. Dist ct issued subpoena to have Nixon
submit the stolen tapes, but he moved to quash on ground of executive privilege
• →whether subpoena should be quashed b/c it demands confidential information btw pres and
his close advisors that is protected by executive privilege
• →neither need for confidentiality or sep of powers without more can give the pres absolute
immunity
• →exceptions:
• Military
• Diplomatic
• Sensitive national security secrets
• →have to weigh importance of the general privilege of confidentiality of pres
communications in performance of his responsibilities against inroads of such a privilege on
fair administration of crim justice
 →Court held that when ground for asserting privilege as to subpoenaed materials sought for use in
a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law

• Scope and Limits of Executive Privilege


 →Amenability to Judicial Process

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• →Pres is not immune from judicial process while he is in office
 →Scope of Executive Privilege
• →cannot shield an executive from criminal wrongdoing
 →Presidential Immunity from Civil Damages Liability for Official Actions
• Nixon v. Fitzgerald
• →President is absolutely rather than qualifiedly immune from civil damages liability for
his official acts at least in the absence of explicit affirmative action by Congress
• →making pres amenable to private suits would hamper the functioning of gov by
distracting pres from his duties
• →says there is still constitutional check of impeachment to rely on!
• →Guy was fired b/c of publicly made statements, he sues pres Nixon and other officials
for 1st amendment violation
 →Presidential Immunity from Civil Damages Liability for Unofficial Actions
• Clinton v. Jones
• → whether litigation concerning a pres actions taken before his term began should be
deferred until his pres term ends
• →Pres Clinton made sexual advances to a woman at a conference in a hotel while
he was gov of Arkansas so she sues him later when he is President
• →Immunity from suits for money damages arising out of official acts is inapplicable to
unofficial conduct
• →sphere of protected conduct must be closely related to the immunity's justifying
purpose
• →immunities are grounded in the nature of the function performed, not in the
identity of the actor who performed it
• →Clinton claims the suit will unduly burden his time and impair his functioning, so it
should be postponed
• →BUT court says just b/c it makes it inconvenient, doesn’t mean it violates the
constitution
• →Doctrine of sep of powers does not require federal courts to stay all private actions
against the president until he leaves office
• Privileges and Immunities of National Citizenship
○ →Based on the 14th amendment
• Saenz v. Roe
 →involved challenge to state law that distinguished btw new and old state residents In the
distribution of welfare benefits. CA enacted a statute limiting max welfare benefits available to
newly arrived residents. There was also a federal statute authorizing the states to do this.
• →"Right to Travel"
• →Protects the rights of a citizen of one state:
• to enter and leave another state
• The right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second state
• For those who choose to become permanent residents, the right to be treated like
other citizens of that state
• →Entails privileges and immunities of the second state
• →Right protected by status as a new citizen, but also as citizen of the US
• →Citizenship Clause
• →does not allow degrees of citizenship based on length of residence
• →equates residence w/ citizenship
• →Court says the statute is invalid b/c Congress cannot authorize states to violate the 14th
amendment

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