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EXAM: What arguments can you make? What are the Constitutional predicates (cite Constitution, cases)?
How certain are you of the outcome? How would you advise the client?trick is to recognize what is
applicable to a given fact patternspot the issue, understand which facts are relevant, explain why certain
facts aren’t relevant, talk about the claim, it’s basis from the Constitution, how the courts have dealt with
the issue, and then the likelihood of success for your clientbuild your answer around the facts; consider
alternate interpretations; use dissents to show the counterargument


• 5 Themes:

o (1) legitimate government depends on consent (preamble)

o (2) structure defines and protects rights

 No strict divide between personal rights and gov’t structure

o (3) 2 structural elements of the Constitution

 Federal gov’t structure as balance of powers/separation of powers/intersection of powers

 Federalism: idea that states are sovereign or at least have dignity

• Grappling with having a dual sovereign in a federal system

o (4) Constitutional law is not confined to the decisions of the Supreme Court

 14th Amendment cases

o (5) Constitutional law is not confined to the text of the Constitution, although we read the text
with great care

 Text is continually interpreted and reinterpreted

 Words don’t have the same meaning over time

• We are learning how to craft a constitutional claim

o Structural constitutional claims

 Text of the constitution, what can we argue that it says (Marshall)

 Words, phrases, sentences, articles

 Concept of welfare under the police powers

• What are the categories of constitutional claims?

o Government can’t do this; no gov’t can do this; exceeds the scope of gov’t authority

o Federal gov’t can’t do this

o State gov’t can’t do this

o A particular branch of federal/state gov’t can’t do this

o Gov’t can do this, but not in this way

 Commandeering cases

o Gov’t can enact legislation, but private parties can’t enforce the provisions against the state

 Alden, Seminole Tribe

• Constitutional predicates for categories of claims

o Scope of gov’t authority

 Enumerated powers; executive has categories of powers

• Powers left to the people/states

 Substantive due process

 Liberty vs. general welfare/police powers

o Scope of federal gov’t authority

 Concept of concurrent authority with the states

 10th: what is reserved to people and states

 11th: difficulty with how it should be interpreted

o Scope of state gov’t authority

 Look at what authority is enumerated for the federal gov’t

 Look at supremacy clause

 Look at necessary and proper clause; 1st part referring to interpretation of enumerated
powers; 2nd part referring to any and all powers granted to gov’t

o Idea that a particular branch of federal or state gov’t can’t do a particular thing

 Federal: Articles 1-3which powers are allocated to each branch

o Idea that gov’t can do it, but not in this way

 Commandeering cases

o Federal gov’t can act, but private parties can’t enforce it

 Merging of 10th/11th Amendments

 Seminole Tribe

• What kinds of claims will arise?

o (1) No government can do this (government can’t order us to marry a particular person)

 Powers retained by the people

o (2) Federal government can’t do thisthis power is reserved to the states

o (3) State government can’t do thisonly the federal gov’t can do this

o (4) Balance of power issueswhat branch of the federal gov’t can do this?

 Same question can be asked about state governments

o (5) Gov’t can do this, but only in a particular way

• The “Preamble” is the only sentence that really matters; the rest is just commentary


• Subject: We the People

o Controversial phrase at the time

o Slaves, Native Americans, and women were left out

• Predicate: do ordain and establish this Constitution for the United States of America

o Gov’t is based on the consent of the people

 Gov’t exists based on the governedonly can be governed if consent is givenfirst time
in history a gov’t built based on citizens saying it’s ok to govern them

o Framers are saying this document isn’t legit simply b/c we wrote it, but b/c the states ratified it

o The concept of consent was revolutionaryvoting is the ongoing consent mechanism

o The process of ratification was even more revolutionary; the states had a choice

• Enumeration of purposes: form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defense, promote the general Welfare, and secure the
Blessing of Liberty to ourselves and our Posterity

o More perfect Union

 Articles of Confederation were making it too hard to successfully run an economy with a
mere confederation of states

 Framers had a continental vision of the countrywould be impossible w/o a free trade

 Central gov’t not strong enough to collect taxes for its debt

 The idea was to make a stronger central gov’t, come together as one to form one strong
Union instead of 13 weaker statesbecame controversial b/c the fed gov’t could end

• Art. 1 Sec. 9 applies to Congressprotected the institution of slavery and the
slave trade until the year 1808 (20 years). Did not address specifically whether
new states could have slavery (said "states now existing") so huge controversy.

• Slavery is at the core of the compromise that allowed our country to exist.

• Slavery was built into the system of representation in Congress by the 3/5
compromise. Meant that white landowners voted for more Congress members
than they would otherwise have had.

• Compromises made to ensure people in slave states would approve the


o Establish Justice

 Reaction against Englandfreedom from the motherland

 Fix oppression by the colonial gov’t

o Ensure domestic Tranquility

 Can’t house soldiers

 Confederation forced separate militias

 Idea was that states wouldn’t fight each otherCivil War (oops)

o Provide for the common defense

 Enemies abroad and within

 Canadians to the north posing a threat of invasion

o Promote the general Welfare

o Secure the Blessing of Liberty to ourselves and our Posterity

 Protecting ourselves and future generations

 Bill of Rights insisted upon by states during the ratification process in order to secure the
“blessings of liberty”

 Ability to amend the Constitutionppl at the time worried about selling their ancestors
into Constitutional bondage

Constitution vs. Articles of Confederation (before Constitution)

• Constitution required states to ratify if they wanted in

• Under Articles each state had own currency; Constitution created a national treasury

• Constitution birthed the theory of consentdemocracy

• Founders wanted a large, prosperous nationan “insular” nation; prepared to wipe out anyone who got
in our way

• Women, slaves, and Native Americans were left out

• Slavery was an important issuewhat should we do?

o Certain states refused to ratify if slavery was abolished

o Part of deal was that each state would have 2 senators and the number of reps would be
apportioned according to population

o Big southern slave states realized they would dominate the northern states in the House of Reps
if slaves were countedsides agreed that a slave would count as 3/5 of a person for this
purposethis was the deciding factor in getting the Constitution ratified

• What role did the ratification process play?

o Ratification was revolutionarystates didn’t have to join

o The idea of consent along with the great injustices done to slaves/women


Article I: Legislative Power

• Section 1: legislative powers are vested in Congress, comprised of a Senate and House of Reps

• Section 2: reps and taxes shall be apportioned among the states according to their populations; Indians
are not included; slaves count as 3/5; reps must be 25 years old and a citizen for 7 years

• Section 3: the Senate is composed of 2 Senators from each state; 6 year terms; must be 30 years old
and a citizen for 9 years; includes rules for impeachment process

• Section 4: Congress shall assemble once a year

• Section 5: rules for the House of Reps

• Section 6: Senators and Reps shall be compensated by the Treasury

• Section 7: all bills for raising revenue shall originate in the House; every bill which passes the House
and Senate becomes a law only after being approved by the President; if the President rejects the bill it
will be returned to the House where it will have to be approved by 2/3 of the House and Senate

• Section 8: enumerates the legislative powers; the powers listed and all other powers are made the
exclusive responsibility of the legislative branch

• Section 9: provides a list of 8 specific limits on Congressional power

• Section 10: limits the rights of the states

Article II: Executive Power

• Section 1: creates the Presidency; 4 year term, same for VP; provides for Presidential qualification,
succession, pay, and oath of office

• Section 2: grants substantive powers to the President (the President is the Commander in Chief of the
armed forces; president may require opinions of the principal officers of the federal government;

president may grant reprieves and pardons, except in cases of impeachment); grants and limits the
president's appointment powers (President may make treaties; President may appoint ambassadors,
other public ministers and consuls, judges of the supreme Court, and all other officers of the United
States whose appointments are not otherwise described in the Constitution; Congress may give the
power to appoint lower officers to the President alone, to the courts, or to the heads of departments.

• Section 3: describes President’s relations with Congress

• Section 4: provides for removal of the President and other federal officers; President is removed on
impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors

Article III: Judicial Power

• Section 1: requires that there be one court called the Supreme Court; Congress, at its discretion, can
create lower courts, whose judgments and orders are reviewable by the Supreme Court

• Section 2: creates the right to trial by jury in all criminal cases

• Section 3: defines the crime of treason, and charges Congress with providing for a punishment for it

Discussion Questions

• 3 branches: legislative, executive, judicial

o Legislative: make laws (Congress)

o Executive: to implement/execute law (President)

o Judicial: interpret and apply law (Supreme Court)

 Debate on whether judges just interpret law or also apply law to facts

• Does any branch perform more than one function?

o President can veto legislationhis powers overlap into legislative power

o President can pardon persons convicted of crimes

o President may nominate judges; Senate must advise and consent

o President can send legislative proposals to Congress

o President can reconvene Congress and decide when they adjourn if the Houses disagree

o Congress defines the jurisdiction of the federal courts

• What issues or types of activities does each branch address? Does any branch have a primary role with
respect to any particular activity? War? Commerce?

o Legislative

 Congress has the power to levy taxes

• States have power to tax, but only within their states

 Article I, Section 8, Commerce Clause: Congress regulates commerce with foreign

nations, and between states and the Indians

o Executive

 President has power to make treaties; must be approved by Congress

 Article II, Section 2: president is the commander of the army, navy, and state militias

 President can declare war; however, Congress must give permission

• Last time Congress declared war was Pearl Harbor

• All expenditures must begin in Congress; therefore they can pull the funding in
order to stop a declaration of war

• How is the federal gov’t best defined in terms of the 3 branches?

o A rigid separation of powers doesn’t describe our gov’t

o Nor is balance of powers accurate

o An “intersection of powers” is probably the best metaphor

• What kind of authority does each branch exercise?

o Enumerated, inherent, and implied authority

o At the time of the drafting of the Constitution, people feared the authority of Congress

 Enumerated: therefore, the founders said Congress will only have these powers
enumerated in the Constitution and no more

 Other Congressional powers were construed broadly (implied)

 Article I, Sec. 8: “all necessary and proper laws”inherent

 Basically saying whatever it takes to handle the enumerated powersso it begins with
enumerated powers but they find a way (inherent and implied) to slip in others

 The power to do anything that the gov’t has the power to do

• Where do federal gov’t agencies fit into this structure?

o Where are agencies and depts. referenced in the Constitution?

 Nowhere, but the necessary and proper clause comes into play

 Article 2, Sec. 3, Clause 1: “commission all officers of the United States”

 Article 2, Sec. 2, Clause 1: “…each of the executive departments”

 It appears Article 4 makes these agencies part of the executive branch

 These agencies make regulations under the United States Code

 Agencies have quasi-legislative duties (writing regulations), quasi-judicial duties

(interpreting regulations), but somehow they fit in the executive framework

 Separation of powers doesn’t account for these agencies; more like intersection

o Does each department have authority to address only one issue?

 They seem to each have a singular area of authority, i.e., treasury/money

• How do the foregoing analyses help us as lawyers craft claims for our clients?

o Claim that such power is not allowed under some branch of government

 Lawyers lobby to get decisions changed

o Claim that the right branch was used, but in the wrong way

• What types of activities does each branch engage in?

o Congress and President have a role in foreign affairs

o Legislative has initiative on commerce

Constitutional Amendments

• 9th Amendment: enumerated rights

• 10th Amendment: limits the powers of the Federal Government to only those specifically granted to it
by the constitution

• 11th Amendment: immunity of states from suits from out-of-state citizens and foreigners not living
within the state borders; lays the foundation for sovereign immunity


• Definition: type of politics wherein a group of members create a sovereign constitution with central
governing authority and political units

Discussion Questions

• Is it correct to say that the federal gov’t is in all cases supreme?

o 10th and 11th Amendments create real issues here

 10th: any powers not delegated to the federal gov’t lie with the states

 11th: judicial limitationssovereign immunity

o It’s a mystery as to what powers are left “to the people” (10th Amendment)

• Are there instances where a state can limit the authority of the federal gov’t?

o Seldom, but possible…CA, medical weed

• Can a state conduct its own foreign policy?

o No, but governors can go on foreign trade missions

• Can a state regulate the commercial dealings of its citizens with citizens of other states?

o Yes…states can tax the citizens of other states in commercial dealings

• Are there any activities with respect to which the state governments and the federal government share

o Yesconcurrent authority over various issues

• Is it constitutionally meaningfully to say that the states are sovereign?

o 10th Amendment says, concept of sovereignty, but not full sovereignty, even in instances that
are seemingly reserved to the states

• Would the nature of federalism have been different if slavery had not been legal in certain of the

o Absolutely, b/c many states refused to sign unless slavery remained legal and they got votes
(ultimately 3/5) for slaves

o It was partly an accommodation to bring the slave states into the Union, and partly an attempt
at the preservation of liberty

• How do analyses of federalism help us as lawyers craft claims for our clients?

o Ability to argue only state or only federal gov’t can do a certain thing

Enumerated Powers (Article 1 §8 Clause 1-17)

• Congress has the power to…levy taxes, borrow money, to regulate commerce, to coin money, to raise
and support armies, etc.

• Congress was feared at this time; ppl thought they would be the dangerous branch b/c they had so
much authority over the states

• A central gov’t with so much power over the people/states had not yet existed in America

Necessary and Proper Clause (Article 1 §8 Cl. 18)

• The Congress shall have the 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 Office thereof”

McCulloch v. Maryland (1819)

Facts: The state of Maryland passed a law that imposed taxes on all the banks located in its territory that
are not chartered by its legislature. The branch of the Second Bank of the United States fell under this law.
The chief cashier of this Bank, McCulloch, refused the pay the taxes and claimed that the state cannot tax
the national bank.

Issues: (1) Does the Congress have the power to incorporate a bank? (2) Can the state of Maryland tax
the branch of the Bank of United States without violating the Constitution?

Holdings: (1) Yes. (2) No.

• Before John Marshall, being Chief Justice of the Supreme Court was not a good job; nobody knew
exactly what the Supreme Court was supposed to do
• John Marshall was determined to interpret the Constitution while deciding cases of controversy
o He wanted to make the judiciary an equally powerful branch of government
o In interpreting the Constitution, Marshall made things up as he went along
o His political agenda was to make sure that the Supreme Court established by the Constitution
became an important piece in our gov’t
• Bank of the United States
o 1st Bank of the US created in 1791 under federal law; lost charter in 1811
o 2nd Bank of the US created in 1816 after War of 1812 caused severe inflation
 South feared the concentration of wealth in the North
 Owned by powerful Americans and the gov’t, but it was not a federal gov’t agency
 Bank was started to help the fed gov’t by loaning them money
o In the summer of 1818, national bank managers realized the bank's massive over-extension,
and instituted a policy of contraction and the calling in of loansthis recalling of loans
simultaneously curtailed land sales and slowed the U.S. production boom due to the recovery of
Europethe result was the Panic of 1819 and the situation leading up to McCulloch v. Maryland
• (1) The first question is: Does Congress have the authority to charter a bank?
o First, we look to the Constitution, which enumerates post offices, but what about a bank?
 Doesn’t specifically say anything about “banks” but it doesn’t end here
 “necessary and proper clause”
 Marshall wants to ensure that Congress has broad powers
o Marshall says gov’t gets its authority from the people, not secondhand via the states
 Sets him up for the question of what it means to have enumerated powers
 Brings him to the “necessary and proper” clausemust do what is necessary and proper
to execute the foregoing enumerated powers
• We have authority of finances, so this clause allows us to incorporate a bank
o Question then moves to what is necessary and proper…what does this mean?
 Marshall says necessary means convenient, useful
 Necessary and proper clause wasn’t designed to limit gov’t, but just the opposite
 It’s placed among the section about the authority of Congress, not the section that limits
the authority of Congress
 Means must be necessary to the ends set forth in the document
 This is the opposite of what Youngstown says
• (2) The second question is: Is it unconstitutional to tax the Bank of the US?
o Maryland wanted to tax the Bank on their operating income in Maryland
o Marshall held that Maryland couldn’t tax the Bank
 The Bank is chartered under federal law; therefore, states can’t interfere with an
operation of the federal gov’t
 People of the US are the whole of the country, and no part can interfere with the whole
 However, the federal gov’t could tax a state bank, and a state bank could tax the bank of
another state if it’s operating within the state’s territory
• Is this case about the balance of powers or federalism?
o Both; Marshall is talking about federalism directly, but he is also trying to put the judicial branch
on the constitutional map
• This case established the following two principles:
o (1) The Constitution grants to Congress implied powers for implementing the Constitution's
express powers in order to create a functional national gov’tnecessary and proper clause
o (2) State action may not impede valid constitutional exercises of power by the Federal
• Chief Justice Marshall’s opinion:
o The court determined that Congress had the power to charter the bank. Chief Justice Marshall,
supported this conclusion with three main arguments:
 (1) The Constitution was a social contract made with the people of the United States at
the Constitutional Convention. Therefore, the federal government is supreme, based on
the consent of the people.
 (2) Congress must act under explicit or implied powers of the Constitution. Although the
term "bank" is not included, there are express powers in the Taxing and Spending
Clause. Although not explicitly stated, Congress has the implied power to create the
bank in order to implement the express powers.
 (3) Marshall supported the Court's opinion textually using the Necessary and Proper
Clause, which permits Congress to seek an objective that is within the enumerated
powers as long as it is rationally related to the objective and not forbidden by the
• Marshall noted that the Necessary and Proper Clause is listed within the powers of
Congress, not the limitations.
• The word "necessary" does not refer to the only way of doing something, but
rather applies to various procedures for implementing all constitutionally
established powers
o This opinion is a broad reading of the necessary and proper clause, thus expanding federal
power and limiting state power

Rationale: Although the Constitution does not specifically give Congress the power to establish a bank, it
does delegate the ability to tax and spend, and a bank is a proper and suitable instrument to assist the
operations of the government in the collection and disbursement of the revenue. Because federal laws
have supremacy over state laws, Maryland had no power to interfere with the bank's operation by taxing
it. Reversed.

Commerce Clause (Article 1 §8 Cl. 3)

• “Congress shall have Power to…regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes”

• Barriers to trade which blossomed under the Articles of Confederation were hindering the economic
unity of the American people

• Congress was given the power to regulate commerce, presumably so nation commercial interests
might prevail over what Federalists called local protectionist “factions”

• As the nation grew during the 19th and 20th centuries, Americans became enamored w/ a laissez-faire
notion of gov’t b/c they thought this was the best was to facilitate growth

o After the Great Depression, the laissez-faire approach was questioned as insufficient

• The key is that we don’t know the meaning of “regulate” or “commerce”

Classical View of the Commerce Power

Gibbons v. Ogden (1824)

Facts: Thomas Gibbons was operating a competing steamboat service which had been licensed by
Congress in regulating the coasting trade. Ogden operated another steamboat service and had a NY
license which gave him a monopoly in the area. Ogden filed a complaint asking the court to restrain
Gibbons from operating his boats. Ogden's lawyer contended that states often passed laws on issues
regarding interstate matters and that states should have fully concurrent power with Congress on matters
concerning interstate commerce. The monopoly, therefore, should be upheld.

Issue: Is a state commerce license invalid which attempts to override Congress’ power regarding
interstate navigation commerce?

Holding: Yes. The New York license was found invalid because the Commerce Clause of the Constitution
designated power to Congress to regulate interstate commerce and that the broad definition of commerce
included navigation.


• Gibbons argued that Congress had exclusive national power over interstate commerce according to
Article I, Section 8 of the Constitution and that to argue otherwise would result in confusing and
contradicting local regulatory policies

• Important adjective in this case…legislature of NY gave Ogden the authority to have “exclusive”
navigation between NY and NJ

o Ogden is claiming he has a monopoly on the waters (no anti-trust laws back then)

o Ogden bought the license from John Livingston; it was assigned to him by Robert Livingston and
Robert Fulton; it was granted to them by the NY legislature

o Not a matter of safety; it’s all about money

• Gibbons had a license as well, but his did not pertain to a specific area of water

o Via the Commerce Clause, Congress granted Gibbons a license to operate in coastal waters

o Gibbons loses all the way up the chain in NY courts

o In the Supreme Court Gibbons got his dream judgeJohn Marshall, who wanted to make the
judicial branch more powerful

• Gibbons claims the exclusive privilege given to Ogden was unconstitutional b/c the area between NY
and NJ is interstate commerce, the regulation of which is given to Congress

• Marshall’s agenda was to enlarge the authority of the gov’t operating under the Constitution

o There’s no reason for the enumerated powers to be construed so strictly

o Marshall wants to make sure the federal gov’t has broad authority

o Broadly construing the enumerated powers = broad congressional power

 Marshall is doing the same thing he did in McCulloch

• Uses McCulloch argument that the power is derived from the people

• Constitution contains enumerated power granted by the people to their gov’t

• The specific issue here is whether navigation is part of “commerce”

o Marshall says navigation is more than just traffic (trade of tangible goods); it also intercourse
(exchanges of all kinds)

o Marshall is not objecting to the exclusivity of the license; he’s objecting the existence of the
licenseNY doesn’t have the power to grant such a license

 Only the US gov’t can grant licenses to navigate waters “among the several states”

o Marshall says things would be really bad if navigation wasn’t part of “commerce”

o Not only is commerce broad, but anything that touches on commerce is also under the control
of Congress

• States can still do pretty much whatever they want, as long as no other state is involved

• What was the point of the concurring opinion in Ogden?

• Was Marshall consistent in his opinions in McCulloch and Ogden?

o Yes; wants to broaden the powers of government

o McCulloch is an implied power case (necessary and proper); Ogden is enumerated power case
(commerce clause)

o Marshall has narrow view of limitations, which creates a broader scope of power

o Enumerated powers will be broadly construed

Rationale: The sole argued source of Congress's power to promulgate the law at issue was the Commerce
Clause. Accordingly, the Court had to answer whether the law regulated "commerce" that was "among the
several states." With respect to "commerce," the Court held that commerce is more than mere traffic—that
it is the trade of commodities—it is also intercourse. This broader definition includes navigation. The Court
interpreted "among" as "intermingled with.” Marshall's ruling determined that "a Congressional power to
regulate navigation is as expressly granted as if that term had been added to the word 'commerce'." The
Court went on to conclude that Congressional power over commerce should extend to the regulation of all
aspects of it, overriding state law to the contrary.

Commerce Clause During and After the New Deal

Wickard v. Filburn (1942)

Facts: A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had
imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat
prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was
ordered to destroy his crops and pay a fine.

Issue: Is Congress allowed to regulate the price of commerce with regards to intrastate commerce in an
effort to regulate interstate commerce?

Holding: Yes. Production quotas under the Agricultural Adjustment Act were constitutionally applied to
agricultural production that was consumed purely intrastate, because its effect upon interstate
commerce placed it within the power of Congress to regulate under the Commerce Clause.

• Wickard is the Secretary of Agriculture; Filburn is a farmer in Ohio

• New Deal: FDR’s complex package of economic programs he initiated between 1933 and 1936 with the
goals of what historians call the 3 Rs, of giving Relief to the unemployed and badly hurt farmers,
Reform of business and financial practices, and promoting Recovery of the economy during the Great
DepressionNew Deal included Agricultural Adjustment Act (AAA)

• AAAthe goal of the legislation was to limit the total production of wheat, so that the supply and
demand of wheat would be stabilized, thereby ending the cycle of broad price swings that were
deemed to be destructive of the farm economy

• Filburn was producing excess wheat for personal consumption, declaring that this didn’t not violate the
Agricultural Adjustment Act of 1933 (AAA), which limited the area farmers could devote to wheat
production in an attempt to stabilize the wheat price

o Filburn said he was only producing the excess wheat for himself so it shouldn’t count

• Commerce Clause says nothing about regulating small farms in Ohio…so how does this become a
Commerce Clause issue?

o b/c Congress wants to regulate the price

o an issue arises b/c Filburn’s production is only intrastate (stays within Ohio)

o Congress is acting directly on individuals, not just the states

o Case forces us to think about individual liberty vs. the common good

• Court uses a “cumulative effect theory”excess wheat has a net effect on the market, regardless of
how it is usedFilburn wasn’t using his money to purchase wheat from others

o This distributional effect should be weighed by Congress, not the Court

• Is this borderline socialism? Gov’t controlling, defeating capitalistic notions

• In the end, this case is significant b/c the Court decides the gov’t can reach down and affect individual

• Ultimately, the Court reasoned that if everyone was allowed to do what Filburn was doing, the whole
point of the AAA would be defeated

• It seems we are still trying to figure out how far gov’t can regulate through trial and error

• Note: Right before he was appointed, Justice Jackson wrote an angry book about how the Court was
striking down government stimulus plans. He was a supporter of FDR’s New Deal.

o Case is decided during WWII, during which the role of gov’t expanded dramatically

• Expansively expanded the scope of Congress’s commerce clause powers

o By eliminating the distinction between commerce, production, and other stages of business…
congress can have control over all aspects

o No distinction between indirect and direct effects on interstate commerceas long as it has a
cumulative effect on interstate commerce

• After Ogden, Filburn expands the reach of the Commerce Clause yet again

Rationale: The rule laid down by Justice Jackson is that even if an activity is local and not regarded as
commerce, "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic
effect on interstate commerce, and this irrespective of whether such effect is what might at some
earlier time have been defined as 'direct' or 'indirect.'" Countering Filburn’s argument, the Court reasoned
that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This
effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn
alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would
certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity
if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if
the individual effects are trivial.

Heart of Atlanta Motel v. United States (1964)

Facts: Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public
accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia,
refused to accept Blacks and was charged with violating Title II.

Issue: Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by
depriving motels, such as the Heart of Atlanta, of the right to choose their own customers?

Holding: No. Congress did not unconstitutionally exceed its powers under the Commerce Clause by
enacting Title II of the 1964 Civil Rights Act, which prohibited racial discrimination in public

• This case becomes a Commerce Clause issue b/c the Court says that 75% of the guests are from out-
of-state and therefore we’re dealing with interstate commerce

• In addition, we introduce the issue of racial discriminationhow do these issues affect one another?

• Federal statute, Title II of the Civil Rights Act, disallows racial discrimination by “establishments that
serve the public…if their operations affect commerce”

• Civil Rights Act applies if the (1) discrimination affects commerce or if the (2) discrimination is
supported by a state action

• 13th Amendment allows for the interpretation that individuals could be punished for
slavery/discriminationthe CRA said no, only state actions will be punished

• This case would not have prevailed w/o reference to the Commerce Clause, which is why the
Commerce Clause ends up being cited in the CRAput there explicitly to deal with state action

• State action doctrine: a legal principle that the 14th Amendment applies only to state and local
governments, not to private entities; under state action doctrine, private parties outside of government
do not have to comply with procedural or substantive due process under the 14th Amendment

o Commerce Clause is introduced to counter the weight of the state action doctrine so the gov’t
has a way to extend the Equal Protection of the 14th Amendment to private entities

• It is common to have more than one Constitutional provision which applies and predicates that will
serve as counterweights to each other

o Here, commerce is serving as a counterweight to the state action doctrine to bolster the
protections of the 14th Amendment

o Title II incorporates the commerce clause to require protections from Congress

• Contemporary Court will attempt to use the 1st Amendment as a way to regulate the reach of the gov’t
in private business, limit the reach of the Commerce Clause

• HOA vs. Ogden & Wickard & Filburn

o Applying the Wickard reasoning, allowing this behavior could have a substantial affect on the
aggregate of hotels (many hotels could decide not to allow individuals of certain race, location)

o This case employs a rational basis test for commerce

o Employs the Wickard idea that it will inevitably affect interstate commerce as a whole

o Employs the Ogden idea that it will affect people coming to the area

 The sheer increase in the volume of interstate traffic alone would give discriminatory
practices which inhibit travel a far larger impact on the nation’s commerce than such
practices would have had in another day

 Therefore, the civil right cases have no relevance to the basis of the decisionthe Act
explicitly relies on the commerce clause

o Was HOA more like Wickard or Ogden?

 More like Gibbonspeople and goods moving back and forth on ferry, people are like
articles of commerce.

 If what people do when they travel is commerce, then it would be more like
Wickardletting people travel has an aggregate effect on interstate commerce

• Court admits they are dealing more so with a moral wrong (discrimination) than with commerce

o But this doesn’t refute the fact that racism has had a major affect on intrastate commerce

o If it was only a moral issue, it would have been determined the same way by the necessary and
proper clause

• This line of cases established that up to this point, a Commerce Clause claim by the gov’t would be
upheld as long as there was “rational basis” for concluding that there was some affect on commerce

Rationale: While it might have been possible for Congress to pursue other methods for abolishing racial
discrimination, the way in which Congress did so, according to the court, was perfectly valid. Having
observed that 75% of the Heart of Atlanta Motel's clientele came from out-of-state, and that it was
strategically located near Interstates 75 and 85 as well as two major U.S. Highways, the Court found that
the business clearly affected interstate commerce. As such, it therefore upheld the permanent injunction
issued by the District Court, and required the Heart of Atlanta Motel to receive business from clientele of
all races.

Discussion Questions

• What is “commerce” for purposes of the Commerce Clause?

o Essence test:

 Marshall, in Ogden, defined commerce as "every species of commercial intercourse."

This is limited in future cases. Marshall's reasoning is that navigation has always been
recognized as commerce. This is not the kind of argument you can give on an exam.
("Everybody knows this is commerce, so it is!") He is defining commerce rather than
focusing on the results of what effects it has on commerce. The very nature of it makes it
commerce, rather than the result of it.

o Consequences test:

 This test is when the court looks at the actual effect on economy. Marshall settles in the
middle. Congress can regulate commerce if it has an effect on interstate commerce.
Intermingling standard to reserve some powers to the states individually. By not going to
any extreme, court maintains a balance of powers between federal and state powers.

• Are Wickard and Heart of Atlanta reasoning consistent with the reasoning in Ogden?

o All are talking about commerce; broadly define commerce clause

o Construing commerce in Wickard to include wheat that never left the farm, because of
“substantial economic effect” on intrastate commerce

o In Heart of Atlanta, just b/c there is a moral element, still interstate commerce, b/c ppl come
from out of state to stay at the hotel

o Anything that effects the stream of commerce seems to be caught under the umbrella of the
commerce clause and within the authority of Congress to regulate

Limits of the Commerce Clause Power

United States v. Lopez (1995)

Facts: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio,
Texas high school. He was 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 a federal criminal
statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a
firearm at a place that [he] a school zone." Lopez was found guilty following a bench trial and
sentenced to six months' imprisonment and two years' supervised release.

Issue: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a
school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce

Holding: Yes. The possession of a gun in a local school zone is not an economic activity that might,
through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal
statute that has nothing to do with "commerce" or any sort of economic activity.

• Here we have a case which looks somewhat similar to HOA and maybe Wickard

• Court uses the rational from Wickard (substantial effect on interstate commerce) to limit the power of

• There is a clash between commerce and police power

• The first United States Supreme Court case since the Great Depression to set limits to Congress's
power under the Commerce Clause of the United States Constitution

• The Court specifically looked to 4 factors in determining whether legislation represents a valid effort to
use the Commerce Clause power to regulate activities that substantially affect interstate

o (1) Whether the activity was non-economic as opposed to economic activity; previous cases
involved economic activity
o (2) Jurisdictional element: whether the gun had moved in interstate commerce

o (3) Whether there had been Congressional findings of an economic link between guns and

o (4) How attenuated the link was between the regulated activity and interstate commerce

• Lopez raised serious questions as to how far the Court might be willing to go in implementing judicial
safeguards against federal encroachments on state sovereignty; this precedent takes special
significance in cases where the federal government is attempting to limit private conduct

• This case does not overrule Ogden; CJ Rehnquist shows how historically the commerce clause
expanded past Ogden

o Country has changed; prior expansive cases happened b/c the country was changing, adopted a
“living constitution”

• 3 areas Congress may regulate: (comes from Wickard)

o (1) use of channels of commerceOgden

o (2) instrumentalities of interstate commerceHOA

o (3) activities having a substantial relation to interstate commerceWickard

• Gov’t didn’t win b/c Court was concerned that if they followed the gov’ts logic, their power would
extend to almost anythinggov’t is one of enumerated powers; w/o limits this concept disappears

o This would convert the commerce clause to the general police powers reserved to the states

• This case presents a balance of powers argument as well as a federalism argument

• Regarding enactment of the statute, Rehnquist says Congress failed to give sufficient legislative
findings regarding the effect on interstate commerceCongress didn’t have any findings, but he
admits that Congress doesn’t have to have any

• Kennedy and O’Connor, concurring:

o Federalism is clearly in play here

o Admits that in the modern world everything is interdependent and has some sort of commerce

 However, there has to be boundaries

 Certain traditional powers must remain with the states (police power here)

• Thomas, concurring:

o The commerce clause power was already pushed too far with the substantial effects test in the
Wickard case

o Originalist view of the Constitution; different take on the Constitution than Amar

o Agenda: fix the commerce clause jurisprudence; agrees w/ this opinion in Lopez, but still not
happy; wants to go back to Wickard and start over b/c Lopez result flows from Wickard

• Stevens, dissenting:

o Guns are part of commerce and therefore may be regulated by Congress

• Souter, dissenting:

o Congress is not intentionally exceeding their authority; reasonable basis

o It’s not up to the courts to review the rationality of Congress

• Breyer, dissenting:

o He applied 3 principles that he considered basic:

 The Commerce Clause included the power to regulate local activities so long as those
"significantly affect" interstate commerceWickard

 A court must consider not only the individual act being regulated (i.e. a single case of
gun possession) but rather the cumulative effect of all similar acts (i.e. the effect of all
guns possessed in or near schools)

 A court must specifically determine not whether the regulated activity significantly
affected interstate commerce, but whether Congress could have had a "rational basis"
for so concluding

• In the end, this cases does not overrule Ogden or Wickard

o Distinguishes these cases b/c guns are not substantially related to interstate commerce

o Actually uses the Wickard “substantial effects” test but says there is no substantial effect here

o Ogden (Channels of commerce): Probably not. The “commerce” in Ogden involved actual
transportation between state lines, which can clearly be interpreted as interstate commerce.

o Wickard (Substantially affecting interstate commerce): Maybe, but the two are
distinguishable. There is a similarity in the “one step of removal” between farmers growing
wheat for their personal use instead of buying it from the national market and Congress
regulating the possession of guns in schools, which do not impact commerce by themselves, but
can if extrapolated far enough. Even so, the modern Court might see a connection between the
actions of many farmers on the wheat market and commerce, but the link between banning
possession of guns near and in schools is much more nebulous.

o HOA (The instrumentalities of commerce): No. This is a clear case of a hotel’s actions
affecting interstate commerce by refusing to rent rooms to black people.

• Notes:

o It is important to note that although the ruling stopped a decades-long trend of inclusiveness
under the commerce clause, it did not reverse any past ruling about the meaning of the clause.
Later, Rehnquist stated that the Court had the duty to prevent the legislative branch from
usurping state powers over policing the conduct of their citizens. He admitted that the Supreme
Court had upheld certain governmental steps towards taking power away from the states, and

cited Lopez as a decision that finally stepped in to check the government's authority by defining
clearly between state and federal powers.

o Lopez raised serious questions as to how far the Court might be willing to go in implementing
judicial safeguards against federal encroachments on state sovereignty. This precedent takes
special significance in cases where the federal government is attempting to limit private

o Amar: Says the Court is now attempting to limit the scope of the Commerce Clause, and
thereby, the scope of Congress’ enumerated authority.

o This was the 1st decision in 60 yrs to invalidate statute based on exceeding Commerce Clause.

Rationale: It held that while Congress had broad lawmaking authority under the Commerce Clause, the
power was limited, and did not extend so far from "commerce" as to authorize the regulation of the
carrying of handguns, especially when there was no evidence that carrying them affected the economy on
a massive scale. The Court reasoned that if Congress could regulate something so far removed from
commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body
with enumerated powers, this could not be so.

United States v. Morrison (2000)

Facts: In 1994, while enrolled at 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 1994 (VAWA), which provides a federal civil remedy for
the victims of gender-motivated 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.

Issue: Does Congress have the authority to enact the Violence Against Women Act of 1994 under either
the Commerce Clause or 14th Amendment (Equal Protection Clause)?

Holding: No. The Violence Against Women Act of 1994 is unconstitutional as exceeding congressional
power under the Commerce Clause and under section 5 of the 14th Amendment to the Constitution.

• There’s no question the plaintiff is going to lose here; it’s a question of how she’s going to lose

• Congress enacted this private civil remedy ($) because of what the minority called a mountain of data
suggesting that states did not prosecute crimes against women as often as crimes against men

• Rehnquist’s majority opinion:

o The Court majority ruled that VAWA exceeded congressional power under the Commerce Clause
and the Equal Protection Clause

o In the same vein as Lopez, this is not economic activityit does not have a substantial effect on

interstate commerce

 Upholding the provision would allow Congress to regulate all violent crimes

o However, unlike Lopez, here Congress made extensive findings of how the act related to
activities that had a substantial effect on interstate commerce. Many women lost their jobs after
being raped, and many were killed, both of which would have a negative economic effect

o Court rejected this argument though

 “Simply because Congress may conclude that a particular activity substantially affects
interstate commerce does not necessarily make it so.” This question is a judicial one,
and can only be settled finally in the Supreme Court. The majority finds that the
reasoning relied upon by Congress has already been rejected: an attempt by Congress to
obliterate the distinction between national and local governments.

• The Court extended the states' rights restrictions on the Commerce Clause power which the Court had
established in Lopez to Morrison

• Morrison was part of a series of Rehnquist era decisions from 1999 through 2001 that specified states'
rights limits on various civil rights laws

o However, the Court's subsequent Gonzales v. Raich decision arguably reversed this trend

• Morrison goes further than Lopez in limiting the scope of Congress’ Commerce power by
narrowing the ability of Congress to regulate based on findings of “substantial effect” on
interstate commerce

o Congress cannot regulate noneconomic activity based on cumulative substantial effect on

interstate commerce

• Federalism issueCourt doesn’t want to blur the line between federal (Congress) power and state
(police) power

Rationale: 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. Rehnquist wrote for the
Court that “if 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."

Gonzales v. Raich (2005)

Facts: California voters passed Proposition 215 in 1996, legalizing the medical use of marijuana. The
United States Federal Government has limited the use of marijuana since the 1937 Marijuana Tax Act
came into effect. Defendant Angel Raich used homegrown medical marijuana, which was legal under
California law, but illegal under federal law. Butte County Sheriff's Department officers and agents from
the federal DEA destroyed all six of California resident Diane Monson's marijuana plants. The marijuana
plants were illegal Schedule I drugs under the federal Controlled Substances Act (CSA). CSA is Title II of the
Comprehensive Drug Abuse Prevention and Control Act of 1970. Monson and Raich sued, claiming
that enforcing the CSA against them would violate the Commerce Clause, the Due Process
Clause of the 5th Amendment, the 9th Amendment, the 10th Amendment, and the doctrine of
medical necessity. California was one of eight states that allowed medicinal use of marijuana.
California's Compassionate Use Act allows limited use of marijuana for medicinal purposes. Raich's
physician said that without marijuana, Raich would be in excruciating pain and could die.

Issue: Does the Commerce Clause allow Congress to ban the use of marijuana even where states approve
its use for medical purposes?

Holding: Yes.

• Intersection of powers caselegislative vs. judiciary powers

• Fed gov’t enacted CSA so they could go into states by means of the Commerce Clause
• This case is closely related to Wickard with regards to regulation of a fungible good; however, the
penalty under the CSA is criminal
• Issue: Can the Federal gov’t use the CSA to nullify the CA statute on the basis of Commerce Clause
o The CSA must be Constitutionalgov’t says CSA is constitutional b/c of the Commerce Clause
b/c the activity being regulated is commerce
o Using the “substantial effects” test of Wickard
• By growing personal weed, the gov’t claims they are affecting the national weed market
• It seems that we are expanding the Commerce Clause to include the use of products
• Steven’s majority opinion:
o Stevens upheld the validity of CSA as an exercise of federal power because Congress "could
have rationally concluded that the aggregate impact on the national market of all the
transactions exempted from federal supervision is unquestionably substantial." (Rational Basis
o Stevens cites Wickard v. Filburn, that “one concern prompting inclusion of wheat grown for
home consumption in the 1938 Act was that rising market prices could draw such wheat into the
interstate market, resulting in lower market prices.”
o The parallel concern making it appropriate to include marijuana grown for home consumption in
the CSA is the likelihood that the high demand in the interstate market will draw such marijuana
into that market.
o Invoking the Supremacy Clause toofederal law trumps state law (conflicting statutes)
• Scalia’s concurrence:
o Aimed to differentiate the decision from the more recent results of Lopez and Morrison
o Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison
decisions, he said that his understanding of the Necessary and Proper Clause caused him to
vote for the Commerce Clause with Raich
o Necessary and Proper Clause is broader than Congress’s enumerated powersbrings back
debate in Ogden that there are implied powers beyond the enumerated powers
o “Unlike the power to regulate activities that have a substantial effect on interstate commerce,
the power to enact laws enabling effective regulation of interstate commerce can only be
exercised in conjunction with congressional regulation of an interstate market, and it extends
only to those measures necessary to make the interstate regulation effective”
o As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic
intrastate activities only where the failure to do so “could … undercut” its regulation of
interstate commerce...this is not a power that threatens to obliterate the line between “what is
truly national and what is truly local”
• Dissenting opinions:
o “Federalism promotes innovation by allowing for the possibility that "a single courageous State
may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments
without risk to the rest of the country...”
o If the majority is to be taken seriously, the Federal Government may now regulate quilting bees,
clothes drives, and potluck suppers throughout the 50 States; this makes a mockery of
Madison's assurance to the people of New York that the "powers delegated" to the Federal
Government are "few and defined", while those of the States are "numerous and indefinite"
• Contrary to Lopez and Morrison, here there is a commercial activity (growing weed)
• This line of cases may not be reconcilable at all, but we need to understand how the courts have
interpreted the Commerce Clause, how federalism has effected these holdings, etc.
• How does Raich fit into the court’s recent commerce clause jurisprudence?

o The court did not change the test for the Commerce Clause since Lopez

o Raich stands for the proposition that intrastate production of a commodity sold in interstate
commerce is an economic activity and thus substantial effect can be based on cumulative

Rationale: [Using Wickard as precedent] One concern prompting inclusion of wheat grown for home
consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate
market, resulting in lower market prices. The parallel concern making it appropriate to include marijuana
grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will
draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the
federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate
market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating
commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely
within Congress' commerce power because production of the commodity meant for home consumption, be
it wheat or marijuana, has a substantial effect on supply and demand in the national market for that

Other Article I Powers

• Article I, Sec. 8, Cl. 1: Congress has the power to tax (Taxing and Spending Clause)

• First substantive power given to the central gov’t

o Under Articles of Confederation, had to beg the states to provide taxes to the gov’t

o Originally it was the states’ prerogative to send tax money or not

o This clause finally gave the federal gov’t power to tax

o Power to appropriate funds goes along with the power to tax

o “to provide for the common defense and general welfare”how does this fit in?

 Seems to be somewhat open-ended “general welfare”

South Dakota v. Dole (1987)

Facts: In 1984, Congress enacted legislation ordering the Secretary of Transportation to withhold five
percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age.
South Dakota, a state that permitted persons 19 years of age to purchase alcohol, challenged the law.

Issue: Did Congress exceed its spending powers, or violate the 21st Amendment, by passing legislation
conditioning the award of federal highway funds on the states' adoption of a uniform minimum drinking

Holding: No. Congress may attach reasonable conditions to funds disbursed to the states.

• State law is inconsistent with federal law with regards to the drinking age, not with regard to the
highway funding

• Gov’t says you can do whatever you want but we won’t give you the final 5% of your highway fund

• The issue is whether the federal gov’t can impose any kind of condition upon the receipt of federal
funds? More specifically, can they impose this particular condition?

• South Dakota argues that setting the drinking age is within the powers granted to the states by the 21st

o 21st Amendment: repealed the 18th Amendment, which mandated nationwide prohibition

o Ambiguous about setting the drinking age

o Rehnquist says this doesn’t matter, Congress is exercising this through its spending power, not
infringing on states’ powers

• Rehnquist says Congress is simply encouraging/creating an incentive to comply, but not mandating

o This legislative effort to encourage is within Constitutional bounds

o Congress is not mandating, just encouraging

o “incident to this power, Congress may attach conditions to receipt of federal funds”

• Congress's conditional spending is subject to four restrictions:

o (1) must promote "the general welfare"

o (2) must be unambiguous

o (3) relate "to the federal interest in particular national projects or programs"

o (4) other constitutional provisions may provide an independent bar to the conditional
grant of federal funds

• Justice O’Connor, dissenting:

o O'Connor agreed that Congress may attach conditions on the receipt of federal funds, and that
the 21st Amendment gives states authority over laws relating to the consumption of alcohol

 The attached condition on the states, O'Connor said, must be "reasonably related to the
expenditure of funds"

o O'Connor disagreed with the Court's finding that withholding federal highway funds was
reasonably related to deterring drunken driving and drinking by minors and young adults

o She argued that the condition was both over and under-inclusive: it prevents teenagers from
drinking when they are not going to drive on federal and federally-funded highways, and it does
not attempt to remedy the overall problem of drunken driving on federal and federally-funded

 “Establishment of a minimum drinking age of 21 is not sufficiently related to interstate

highway construction to justify so conditioning funds appropriated for that purpose”

o If you allow such a loose connection to the federal interests in a project, congressional authority
becomes almost unbounded

Rationale: Congress had engaged in a valid exercise of its power under the Taxing and Spending Clause,
and did not violate the 21st Amendment. Rehnquist said that Congress's conditional spending is subject to
four restrictions: (1) the condition must promote "the general welfare;" (2) the condition must be
unambiguous; (3) the condition should relate "to the federal interest in particular national projects or
programs;" and (4) other constitutional provisions may provide an independent bar to the conditional grant
of federal funds. The first three restrictions, Rehnquist noted, are uncontested. This leaves the fourth
restriction. The 10th Amendment bars federal regulation of the States, and it has been suggested that the
21st Amendment might prohibit federal regulation of the drinking age. Nevertheless, the Congressional
condition of highway funds is merely a "pressure" on the State to comply, not a "compulsion" to
do so, because the State's failure to meet the condition deprives it of only 5% of the highway funds it may
obtain. Therefore, Congress has not run afoul of the 10th or 21st Amendments.


• Dual sovereignty (federal and state)

o National security is shared
o Article 6, Section 1, Clause 2
o Two things left to consider:
 10th Amendmentreserved powers for states/people
 11th Amendmentcitizens of FL can’t sue state of NY
• Four big issues that come up because of sovereign immunity of the states:
o Sources of state sovereign immunity
 10th Amendment: powers not delegated to federal gov’t or prohibited by it are reserved
for the states or to the people
• Hill says that this is saying that there are some things that no government can
do, and there’s some things that the state gov’t cant’ do either
• The structure of the Constitutionwe’re reserving some authority of the group of
things gov’t can do to the states if there’s something that federal gov’t is not
given power for, then it’s reserved for states
 11 Amendment: dealing with the suits against states and restrained judicial power
• No one who is a citizen of France can sue the state of Florida
• No one who is a citizen of GA can sue the state of FL
• But it doesn’t say that a citizen of FL can’t sue FL in a federal courtcan we do
that or is it precluded by the structure of constitution, sovereignty of states,
sovereign immunity of states from any lawsuit or it is inherent in common law?
o What does sovereign immunity do?
 Limit jurisdiction of federal court with respect to roles played by state court
 Limit congressional authority to regulate states
o How do we get around what we mean by sovereignty and sovereign immunity of states?
 Even Supreme Court says that federal courts can hear cases against state officials
 The state is permitted to weigh its 11th amendment immunity, whatever that means and
however broad that may be
 Federal courts can hear cases against state arising under the 5th section of the 14th
amendment (civil rights cases and cases that give Congress rights to ensure that the
post civil war, civil rights amendments are not restricted)
o How do we reconcile state sovereignty and state sovereign immunity with a variety of things
that seem contrary to it in the constitution?
 The issues that really are in play and the values are rights protected under the
constitution (14th amendment section 5 and the Supremacy Clause taken with the 14th)
 Supremacy clause becomes really important

10th 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”

11th Amendment

• “The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State”

Federalism as a Limit on Article I Powers

Amar on “General Welfare”

• Talks about a geostrategic vision of the US; general welfare is to ensure that the gov’t will not play
favorites like parliament used to do in England

o Way to ensure equal treatment for people, precursor to the 14th Amendment

• Emphasis given to the “general” part; vision for the future of the country

o Repeated emphasis on the perennial favoritism played by Parliament

10th Amendment and Regulation of the States

• Some powers are outside the boundary of gov’t regulationthese powers go to the people

• But generally, the 10th Amendment stands for the proposition that powers not explicitly given to the
Federal gov’t and not explicitly denied to the states are reserved to the states

Garcia v. San Antonio Metropolitan Transit Authority (1985)

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). Garcia, an employee of SAMTA, brought suit for
overtime pay under Fair Labor Standards Act.

Issue: Did principles of federalism make the SAMTA immune from the Fair Labor Standards Act?

Holding: No. Congress had the authority under the Commerce Clause of the United States Constitution to
apply the Fair Labor Standards Act to a municipal mass transit system operated by a governmental entity.

• National League of Cities: FLSA as applied to state employers was unconstitutional as a violation of the
10th Amendment

o Pursuant to this case SAMTA revoked overtime pay for its employees. SAMTA sought a
declaratory judgment that its transit operations were beyond Congress’ power to regulate.

o Garcia overturns National League

o Justice Blackmun joined the four dissenters in National League to form the five justice majority

• Fair Labor Standards Act: governs minimum wage and overtime requirements; sets a standard for what
states have to pay transportation workers

o This case is not challenging the minimum wage; rather, the issue concerns employees engaged

in “traditional government functions”; the Commerce Clause cannot be relied upon to regulate
these functions through a federal statutethis would intrude on principles of federalism

• Federal gov’t can only regulate traditional gov’t functions via the Commerce Clause

o This case deals with whether or not transportation is a traditional gov’t function

• What is a traditional government function and how can we tell?

o Education, finance

o Historical concept is unworkable, so where is the line?

o Non-historical, categorical attempt is also unworkable on the theory of the living Constitution;
things are always changing

o More fundamental problem is that we can’t achieve federalism (limit power of fed gov’t) if we
look at limits in a historical or even categorical way

o The only way to resolve this problem is to look to the constitutional structure

 Must look to the structure of the federal gov’t itself

 The federal balance of power preserves the rights of states

o Power is vested in the peoplewe must let the states be free to define or engage in any activity
which their citizens choose

 If a state’s citizens want the state to govern a certain activity a certain way, unless it’s
specifically given to the federal gov’t, we must let the state handle it

• Therefore, this case has nothing to do with the minimum wage at SAMTA, but it has everything to do
with the minimum wage in general

o This case at first seems to be about minimum wage, but ends up being a debate about
Congress destroying the 10th Amendment

• Blackmun2 reasons for overruling National League:

o (1) The approach in National League had proved unworkableimpossible to make a distinction
between “traditional government functions” and non-traditional functions

o (2) The protection of state prerogatives should be through the political process and not from the

• Powell, dissenting:

o Objected to both the Court's failure to grant stare decisis effect to its earlier decision in National
League of Cities and for reducing the balancing test that the Court adopted in National League
of Cities into a cruder categorical distinction between traditional and non-traditional
governmental functions

o Powell's opinion was even more critical of the majority's failure to recognize any limiting
role of the 10th Amendment, accusing it of negating the Court's role in mediating between

the two through judicial review of the constitutionality of Congress' intrusions into areas
previously left to the states

• O’Connor, dissenting:

o Acknowledging that the changes in the economy in the past 200 years had transformed the
Commerce Clause power from a marginal power that served mostly to mediate between the
states into a general power that gave Congress essentially unlimited power to regulate,
O'Connor argued for special limitations on this power to protect the states' authority over their
own employment relations

o She invoked the limiting language of the most expansive interpretations of the Commerce
Clause to argue that the Court retained the power to decide whether a particular exercise of the
Commerce Clause authority was “necessary and proper” to the federal purposes to be achieved

o Applying that standard, she would find the FLSA unconstitutional as applied to employees of
state and local governments

• Dissents don’t mention McCulloch, but there is a connectionMaryland’s view in McCulloch is similar to
the dissent’s view in this caseCongress is overreaching its bounds and the Court is letting it do
so/isn’t reigning Congress in

• Amar: difficult balancethe federal government MUST be powerful, but that power has to be diffused
and one of the ways this power is diffused is through the 10th Amendment (although the Court isn’t
allowing that here)

• Rule: State sovereign interests are protected by procedural safeguards within the structure of the
federal system, rather than judicially created limitations.

• Garcia represents in many ways the high-water mark for the Court's expansive reading of the
Commerce Clause to favor centralized national government as opposed to the more decentralized
version of federalism, in which the 10th Amendment limits the authority of the federal government vís à
vís the states, as envisioned by Justices Rehnquist and O'Connor (Lopez case)

Rationale: The Court also rejected the theoretical underpinnings of the National League of Cities v. Usery
decision (that the Constitution's recognition of the sovereignty of the states necessarily implies limits on
the power of the federal government to regulate their employment relations). In the majority's view, the
constitutional grant of authority to Congress to regulate interstate commerce was not qualified by any
implied limitation on the right to regulate the activities of the states when they engaged in interstate
commerce; on the contrary, the Commerce Clause invalidates state regulations that interfere with
commerce, while the Supremacy Clause allows Congress to preempt state laws that conflict with federal
law in this area. According to the majority, the framers believed that state sovereignty could be
maintained by the peculiar structure they adopted: a Senate in which each state was given equal
representation, regardless of its population, an electoral college that gave the states the power to choose
electors, and the indirect election of Senators by the legislature of each state prior to the adoption of the
17th Amendment to the United States Constitution. Noting that the same Congress that extended the FLSA
to cover government-run mass transit systems also provided substantial funding for those systems, the
Court concluded that the structure created by the framers had indeed protected the states from
overreaching by the federal government.

New York v. United States (1992)

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 Courtland 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

Issue: Does the Low-Level Waste Act violate the 10th Amendment and the "guarantee clause" of Article

Holding: Yes. The "Take Title" provision of the Low-Level Radioactive Waste Policy Amendments Act of
1985 exceeded Congress's power under the Commerce Clause.

• 1985 act in question seems sort of like Dole; dealing with the incentives in the act

• Issue here is the 3rd incentive (“take title” provision): offers states, as an alternative to regulating
pursuant to Congress’ direction, the option of taking title to and possession of the waste generated
between their borders and becoming liable for all damages waste generators suffer as a result of the
States’ failure to do soclaims to offer state gov’ts a “choice” of either accepting ownership of waste
or regulating according to the instructions of Congress

o If states fail to comply, they are required to take title and assume the liability of waste
generated within their boarders

• 10th Amendment is at issue here

o Are any of these incentives punishments? If so, this is no good

• Issue here is not whether congress can regulate nuclear waste, it is conceded that this is within federal
authority; the only issue is with the way in which the gov’t decides to regulate here

o They can regulate in this area, but not in the way it was done here

o Look at the first few cases

• Majority notes the difference between this case and past decisions in this area (Garcia)

o "Most of our recent cases interpreting the 10th Amendment have concerned the authority of
Congress to subject state governments to generally applicable laws. This case presents no
occasion to apply or revisit the holdings of any of these cases, as this is not a case in which
Congress has subjected a state to the same legislation applicable to private parties."
• Court says the line has finally been crossed between a mere incentive and coercion

o The first two provisions are okay b/c they merely provide incentives, which is okay

o The third provision, according to the Court, compels the states to regulate according to the
federal gov’ts scheme

o In this regard, this case seems to agree with Doleincentives are okay

• The other word here besides “coercion” is the idea of “commandeering”

o O’Connor defines commandeering as leaving the states w/ no choice

o If they didn’t comply they would be penalized

o States had to choose between conforming to federal regulations or taking title to the waste

o Congress can regulate, but it can’t force the states to regulate or legislate in a particular way

o Such coercion would be counter to the federalist structure of government, in which a "core of
state sovereignty" is enshrined in the 10th Amendment

o O’Connor notes that in Dole, Congress offered the states a choiceno coercion

o Commandeering is creating a compulsion of the state to do somethingif the state doesn’t

have a “real” choice

• With the “Take Title” provision, the problem is that the federal gov’t is “commandeering” the state
gov’ts by essentially making them work for them to achieve their goals

• White, dissenting:

o Whole plan was devised by the national governor’s associationstate’s wanted this

o States were asking Congress to pass legislation to solve this problem

o Stressed that the Act was a product of "cooperative federalism," a situation where the States
"bargained among themselves to achieve compromises for Congress to sanction"

 Can’t be a commandeering if the states are agreeing to legislation

o Noting that Congress does have the power to directly regulate radioactive waste (as opposed to
compelling state legislatures to regulate according to their scheme), White said that the
"ultimate irony of the decision today is that in its formalistically rigid obeisance to 'federalism,'
the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving
local solutions to local problems"

• Stevens, dissenting:

o Nothing in the history of the framing of the Constitution suggests that the Federal gov’t may not
impose its will on the States as it does on individual citizens, and as it did under the Articles of

o As compared to the federal powers under the Articles, the Constitution enhanced, rather than
diminished, the power of the Federal Government

o The notion that Congress does not have the power to issue a simple command to state
governments to implement legislation enacted by Congress is incorrect and unsound

• 3 different opinions = 3 constitutional interpretations

o Majority represents a strict and formalistic adherence to federalismunwilling to compromise

the separation of powers between State and Federal gov’ts

o Justice White, while not disclaiming the limits of federalism, feels the Act should be viewed as a
product of collective state action, not as simple congressional mandate

o Justice Stevens feels that the constitutional federalism does not bar the Act at allhe sees no
difference between regulating directly and regulating through the States

Rationale: 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 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." The distinction was that with
respect to the "take title" provision, the States had to choose between conforming to federal regulations or
taking title to the waste. Since Congress cannot directly force States to legislate according to their
scheme, and since Congress likewise cannot force States to take title to radioactive waste, O'Connor
reasoned that Congress cannot force States to choose between the two. Such coercion would be counter
to the federalist structure of government, in which a "core of state sovereignty" is enshrined in the 10th
Amendment. The Court found the "take title" provision to be severable, and, noting the seriousness of the
"pressing national problem" being addressed, allowed the remainder of the Act to survive.

Printz v. United States (1997)

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.

Issue: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require
state CLEOs to regulate handgun purchases by performing duties called for by the Brady Bill?

Holding: No.

• Brady Bill is commandeering local law enforcement to perform tasks mandated by a federal statute
requires state law enforcement to do something on behalf of the fed gov’t

• “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the
President, it says, “shall take care that the laws be faithfully executed”

o The Brady Bill effectively transfers this responsibility to thousands of CLEOs in the states, who
are left to implement the program w/o meaningful Presidential control

• Justice Scalia’s majority opinion:

o (1) Justice Scalia refers to the “dual sovereignty” established by the U.S. Constitution that
federalism is built upon

 His opinion states that the Framers designed the Constitution to allow Federal regulation
of international and interstate matters, not internal matters reserved to the State

 The majority arrives at the conclusion that allowing the Federal government to draft the
police officers of the 50 states into its service would increase its powers far beyond what
the Constitution intends

o Scalia is trying to make an argument that the Necessary and Proper Clause can’t be used
this way

 If the law usurps, then it can’t be necessary and proper

o (2) The Court also offered an alternative basis for striking down the provision: it violated the
constitutional separation of powers by robbing the president of his power to execute the laws;
that is, it contradicted the "unitary executive theory"

o (3) The majority relied on New York v. United States, wherein the Court ruled a Federal bill
compelling States to enact legislation to provide for radioactive waste disposal was
unconstitutional because it violated the 10th Amendment; thus, a precedent was set prohibiting
the Federal government from compelling a state to enforce a Federal regulatory program

• Majority has a specific argument why the dissent’s Necessary and Proper Clause argument is no
goodwhen a “law for carrying into execution” (quoting N&P clause) the Commerce Clause violates
the principle of state sovereignty, it is not a “law proper for carrying into Execution the Commerce
Clause,” and is thus merely an act of usurpation

o There is a time when the N&P clause is not useful for carrying into execution the Commerce
ClauseN&P clause doesn’t apply to acts of usurpation

o Scalia says he’s not relying on the 10th Amendment, b/c we have an enumerated power of
Congress under Article I (Commerce Clause), then we also have a Necessary and Proper
Clausebut we can’t turn to the N&P clause b/c that enumerated power violates principles of
federalism stemming from various parts of the constitution

o It isn’t enough that Congress has this power under Article I, we must have the proper means

o Arguing against the means of implementation rather than the Commerce Clause itself

• CJ Marshall wanted a strong central gov’t, didn’t want to hear about what’s necessary and proper

o Marshall said that with any power granted to Congress come the means to implement it

o But Scalia wants a narrower interpretation of what’s necessary and proper

o Scalia says it’s about what is proper; doesn’t debate the federal gov’ts ability to determine what
is necessary, but this use of the clause is not proper

• Why is this such a tough case? Why does the Court find that we can’t just use the Necessary and
Proper Clause and say the federal gov’t can do this?

o b/c state legislatures are not subject to federal directionthat’s what the Court said here

o the best answer is that this is an unresolved issue in federalismit’s not clear from the
structure of federalism why the federal gov’t can’t commandeer agents of a state gov’t from the
necessary and proper clause

o the principles of federalism do not compel an answer in these situationsthese cases are
difficult b/c we still haven’t figured it out

• Stevens, dissenting:

o Suggests the Commerce clause of the Constitution, giving the Federal government the right to
regulate handgun sales, can be coupled with the Necessary and Proper Clause, giving Congress
the power to pass whatever laws are necessary and proper to carry out its previously

enumerated power

• Note: Congress could probably get around this problem (and the problem in New York) by conditioning
(not compelling though) the state or local government’s receipt of federal funds on the officials running
background checks

Rationale: 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, by performing background-checks on applicants for handguns, the 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.

11th Amendment and State Sovereign Immunity

• 11th Amendment was a response to a 1793 Supreme Court decision, Chisholm v. Georgia, which
allowed a diversity suit by a nonresident of Georgia (SC resident) against the state of Georgia to
proceed in federal court

• The states responded with outrage; an initial proposal to amend the Constitution was introduced in the
House the day after Chisholm was announcedthe proposal adopted the 11th Amendment

• 11th Amendment: “the Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State”

• 11th can be read very broadly to mean that it effectively immunizes the actions of state govt’ from
federal court review, even when a state violates the most fundamental constitutional rightsthis is
how it protects autonomy

• It also provides this independence by risking the ability to enforce basic federal rights. Stakes can be
really high.

• 11th Amendment has lead to 2 competing theories, but court hasn’t definitively said its one over

o (1) Constitutional limit on subject matter jurisdiction for all suits against state gov’ts

 Federal court subject matter jurisdiction is limited by the states’ sovereign immunity (so
this allows for immunity for both federal question and diversity jurisdiction)

 This is a broader reading of sovereign immunity. But Supreme Court hasn’t been
completely consistent with this idea. This provides a clear rule that federal courts may
not hear suits against state gov’ts regardless of the plaintiff’s citizenship.

o (2) Limit on diversity suits

 More restrictive to only diversity jurisdiction of federal courts

Seminole Tribe of Florida v. Florida (1996)

Facts: In 1988 Congress passed the Indian Gaming Regulatory Act, a statute requiring the states to
negotiate with Indian tribes to create compacts governing Indian Gaming. The statute provided that if a
state failed to enter into such negotiations, or to negotiate in good faith, the Tribes could sue the state in
federal court in order to compel the states to negotiate. If the states still refused, the statute provided that
the matter would ultimately be referred to the Secretary of the Interior. Congress had asserted its
power under the part of the Commerce Clause relating to commerce with Indians to pass such
a statute, abrogating the immunity of states pursuant to its express powers. The Seminole Tribe
of Florida requested that the state enter into such a negotiation. When the state refused, the Tribe filed
suit, as allowed by the statute, against both the state of Florida and the governor, Lawton Chiles. The
District Court declined to dismiss the case, but the United States Court of Appeals for the 11th Circuit
reversed, holding that the 11th Amendment barred the suit, and that the doctrine of Ex parte Young could
not be used to force good faith negotiations.

Issue: Does the 11th Amendment provide Florida with immunity from the Tribe’s lawsuit?

Holding: Yes. Congress does not have the power pursuant to the Commerce Clause to abrogate the
sovereign immunity afforded to states under the 11th Amendment; the doctrine of Ex parte Young, which
allows parties to seek relief against state officials for violations of the Constitution or laws of the United
States, does not apply where Congress has already created what it deems a sufficient remedy.

• This is a “dignity”/sovereignty casefed gov’t can act, but private parties can’t enforce it against the

• Abrogation doctrine: a constitutional law doctrine expounding when and how the Congress may
waive a state's sovereign immunity and subject it to lawsuits to which the state has not consented

• Ex Parte Young: allows state officials to be sued in their individual capacity for prospective injunctive

o Court said it was inapplicable under these circumstances, because any remedy was limited to
the one that Congress had provided

• We thought the Seminole people were a sovereign nation, but according to this case they are just an
individual like anyone else

• The IGRA was a dually enacted federal statute

• Congress’s power to regulate Indian gaming is explicitly enumerated under Article 1, Sec.8, Cl.3 this
is not the question

o The question is whether Congress can take away a state’s sovereign immunity and allow the
Indian nation to sue the state

• Rehnquist wrote the opinion and was a big believer in new federalism. He thought that federalism
should be revitalized in a modern world and he held that Congress can’t invoke its commerce clause
authority to abrogate state sovereign immunity and it can’t grant jurisdiction over a state that does not
consent to be sued in a federal court. Rehnquist then says that we have never restricted our
understanding of the amendment to its text, but what we have done is to not use the 11th amendment
by what it says but by the presumptions with which is concerned.

• Rehnquist’s Opinion:

o Ignore the 11th Amendment’s textpresuppositions

 (1) a state is a sovereign entity

 (2) sovereignty implies that states can’t be sued w/o their consent
o Suggested that allowing Congress to abrogate sovereign immunity improperly expanded the
jurisdiction of the federal courts beyond what Article 3 of the Constitution permitted

 Seems Article 3 provides for exactly the kind of diversity jurisdiction the 11th precludes

o The 11th Amendment, it contended, had further protected the states' sovereign immunity; the
14th Amendment placed limitations on the 11th Amendment, but only with respect to the rights
guaranteed in the 14th Amendment

o Rehnquist has to overcome the precedent of Pennsylvania v. Union Gas

 Basically just says stare decisis has its limits and sometimes you have to throw things

 He tells us Union Gas expanded the bounds of Article 3 pursuant to the commerce clause
and says Congress can't do that

 CITES MARBURY V. MADISON (for the idea that you can't expand the jurisdiction of the

 Rehnquist says since sovereign immunity is the principle embodied in the 11th
Amendment he is overruling Union Gas b/c you can only expand authority of Congress
under 14th Amendment. He has made 11th Amendment coextensive with some
unbounded principle of state sovereign immunity.
• Souter, dissenting:

o Focuses on the language of the 11th Amendment, which only appears to eliminate diversity
jurisdiction between states and citizens of other states

o Souter discounts the importance of the common law in interpreting the Constitution because
the Constitution itself was such a new and unprecedented device at the time of its creation that
it was clearly intended as a rejection of the common law that came before it

o As support for this contention, Souter notes that the framers of the U.S. Constitution did not
include language adopting the common law that had already been adopted by many of the
states in their own constitutions

o Souter also notes that Congress had rejected proposed language for the 11th Amendment which
would clearly have barred suits between states and their own citizens, and which would clearly
have prevented Congress from abrogating this bar

o “negative legislative history”

• Stevens, dissenting:

o This case is about power; that’s it

o Congress has the power to create a federal cause of action against a state

• Hill says the Seminole Tribe starts to become incidental here (like Marbury)

o This is an 11th Amendment case in the NEW FEDERALISM

o Interestingly, the 5-4 split here is the same as the 5-4 split in Lopez (the year earlier), both
restricting Congress’ authority over the states
Rationale: The Court held that Congress did intend to abrogate states' sovereign immunity under the
IGRA but that the Indian Commerce Clause (and by implication the Commerce Clause) did not give
Congress that power. Under the 11th Amendment, all states are regarded as sovereign entities. Such
sovereignty inherently implies that states may not be sued by parties without their consent, even if they
are given authority to regulate those parties' activities through receipt of federal funds. Finally, Ex Parte
Young's ruling does not justify the Tribe's suit against Florida's governor in light of certain IGRA provisions
which specifically prohibit such an action.

Alden v. Maine (1999)

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 immunity, the
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.

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 (state courts)?

Holding: No.

• This case came along and clarified the opinion in Seminole Tribe

• Seminole said they couldn’t sue in federal court, so they sued in state court
• Case of 1st impression1st time Court has decided this kind of case
• Case involves federalism and Congressional (legislative) power
• Kennedy’s Opinion:
o The Constitution provides immunity for non-consenting states from suits filed by citizens of that
state or any foreign state, noting that such immunity is often referred to as “11th Amendment
 Must look at the structure of the Constitution and its history
 Authoritative interpretation by this Court
 Before the ratification of the Constitution, states were historically immune from suit in
their own courtswas this power surrendered with the ratification of the Constitution?
• Supremacy clause doesn’t affect this power, fed gov’t is only supreme over what
is granted to it via the Constitution
• This is a question of first impression
o What did the framers intend?
 All the framers at ratification understood that states couldn’t be sued in their own courts
 Worried about states being brought to court and treated like debtors
o Such immunity, he continued, is necessary to maintain the state sovereignty that lies at the
heart of federalism
o “Sovereign immunity derives not from the 11th Amendment but from the structure of the
original Constitution itself.... Nor can we conclude that the specific Article I powers delegated to
Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the
incidental authority to subject the States to private suits as a means of achieving objectives
otherwise within the scope of the enumerated powers.”
o What does it mean for a state to be sovereign within a system with a strong central government
given enumerated powers?

 No real answer to this question, just interpretations/variations

o Kennedy has captured much of the conceptual ambiguity of our federal system

 Can you be oppressed by a state in ways that are inconsistent with the rights that
Congress has made available to everyone as a citizen of the US?

 The scope of state sovereignty and the scope of the 11th amendment becomes hugely
important because then our federal rights are only going to be enforced in a patchwork
around the countrycan that possibility be our constitutional design?

o Believes that there are limits on state sovereign immunity

 A state can consent to being sued

 A state official can be sued in their individual capacities and the state $ will not be used
to pay damages

 No definite formula

o Kennedy says states don’t have full, unhindered sovereignty, but they do have “dignity”

o Exception: Kennedy said there would only be an exception if Congress is enforcing the 14th

• Souter, dissenting:

o Argued that the concept of “sovereign immunity” had been misapplied by the majority

o Souter continued by noting that the idea of sovereign immunity was unclear during the period
of the Constitution’s ratification

o In addition, he argued, the framers would certainly have not expected the idea to remain static
over numerous years

 Sites Garcia; SAMTA workers case

 Making fun of Kennedy for talking about the “dignity” of a state

• Pure rhetoric, what the fuck is that supposed to mean; robust concept of

• Doesn’t really explain much about the structure of the constitution

• Seminole sort of seems to be a bridge between Garcia and Alden

o Garcia is a suit against a municipality brought in federal court

 Kennedy would consider a municipality as a lessor entity

 Private person, simple diversity jurisdiction

o Seminole is a suit against a state brought in federal court

o Alden is a suit brought against a state in state court

• Hill thinks the Court is making things up here ala Marshall

• It’s hard to know what powers are reserved to the people anymorecase leaves us with the question…
is there any activity that some level of gov’t doesn’t intrude upon anymore?

• One of the reasons we are reading cases about 10th and 11th Amendments is b/c Justice Rehnquist and
others came to the court with a mission to shrink the intrusion of the federal gov’t
o Wanted to limit authority of federal gov’t by claiming the power is limited to the states
o The only way to do this after Wickard v. Filburn is to say "No. We can limit their authority."

Rationale: Congress may not use its Article I powers to abrogate the states' sovereign immunity. Both the
terms and history of the 11th 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 10th Amendment confirm that states retained much of their sovereignty despite their
agreeing that the national government would be supreme when exercising its enumerated
powers (the majority stated that the Supremacy Clause of the Constitution only applies to pieces of
legislation that fit within its design). In addition, Maine was not a consenting party in the suit, and
therefore this exception wasn’t present.

Federal Maritime Commission v. South Carolina State Ports Authority (2002)

Facts: South Carolina Maritime Services, Inc. (Maritime Services), asked the South Carolina State Ports
Authority (SCSPA) five times for permission to build 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 filed a complaint with the Federal Maritime
Commission (FMC), arguing that SCSPA violated the Shipping Act by its denials. The complaint was
referred to an 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.

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. States cannot be sued in federal administration agency proceedings. The same principle of
state sovereignty in Alden bars the federal government from requiring that states defend against private
complaints in proceedings brought before federal administrative agencies.

• Plaintiff in this case is a gambling ship operator

• Defendant is South Carolina State Ports Authority

o A state administrative agency in charge of the Port of Charleston

o “an arm of the state of South Carolina”a gov’t instrumentality

• South Carolina had a statute which prohibited gambling ships from docking

o South Carolina has the authority to do this

• After ship tries to dock 5 times and is rejected

o Files a complaint with the Federal Maritime Commission

 FMC is the federal administrative agency which mediates when shipping acts violated

 FMC is not an Article 3 court; authority delegated by Congress, members appointed by

president with approval of the senate

 Has the authority to adjudicate disputes and write regulations

• Regulations have same status as a statute as long as they are consistent with
congress enacting the same

• Justice Thomas’s majority opinion:

o Thomas says that the 11th Amendment could not have covered such a complex relationship

 There is no way the framers could have ever thought up a system as described above

 Harks on the “administrative state” agencies with powers to adjudicate and write

o Court relied on Alden that sovereign immunity is broader than the protections of the 11th
Amendmenttext of 11th says “judicial power” but this does not mean only federal courts; it can
be extended to the FMC

o Employing “imaginative reconstruction”if these facts applied back when the Constitution was
formed, what would they have done?

 The Framers could not have anticipated the growth of the administrative state

 An administrative tribunal is analogous to a federal court, and these adjudications are

the type of proceedings from which the Framers would have thought the States
possessed immunity

o The “preeminent purpose” of sovereign immunity is to protect the “dignity” of state

governments, and such dignity would be impermissibly offended by allowing states to be named
as defendants in agency proceedings without their consent

• Justice Breyer, dissenting:

o Judicial power and executive power are not the same, therefore 11th Amendment does not apply

o State “dignity” is not on the line b/c it is the Commission against the state, not the individual vs.
the state

o Breyer rejects “dignity” as an analytical term (and Hill would agree)

• Question in this case: can a state or state agency be brought before a federal administrative agency
when 11th Amendment makes no mention of such entities?

o Is South Carolina State Ports Authority subject to be brought before FMC?

o Or, does state sovereign immunity extend to the adjudicatory roles within the state agencies?

• Says that Seminole excludes making an exception for maritime agencies like the FMC

• Still no definition of sovereignty in this case

Rationale: The Court held that state sovereign immunity bars the FMC from adjudicating a private party's
complaint against a non-consenting 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.


• Cases in an area that is very clouded

o 11th Amendment doesn’t really have anything to do with Seminole or Alden

o Court has very broad latitude to define and re-define the definition of federalism

 Inherent in doing this is defining and re-defining state sovereignty

 Also, what role does the Supremacy Clause play?

o Embrace this indeterminacy, just have to look at how different courts work with it

• What holds judges accountable since they are elected for life?

o Held accountable by the reasoning of the past

o Departures from that reasoning must be compelling and well-articulating to justify the change

o However, the court is also political (not partisan)

o Do make policy, and in the course of crafting this policy the plaintiffs often get lost

 i.e. Seminole tribe gets shit on, no access to justice

 same with Alden, probation officers don’t have any recourse to get paid

• Judges often have policy agendas, just won’t ever admit it

o Look for this in some or their reasoning


• Federalism was our nations own discovery; it was the genius of our framers that our citizens would
have two political capacities, one state and one federal, each protected from intrusion by the other

• There is considerable controversy concerning whether federalism properly positions the boundary
between federal and state spheres of authority

o We’ve already discussed whether Congress possesses certain powers

o But just as federalism imposes limits on the federal gov’t, it also imposes limits on the states

Article I Limitations on the States

Article I §9: Limits on Congress

Article I §10: Limits on the States

• Contracts Clause: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of
Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a
Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility.

• Export Clause: No State shall, without the Consent of the Congress, lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for executing it's [sic] inspection Laws:
and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the
Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control
of the Congress.

• Compact Clause: No State shall, without the Consent of Congress, lay any duty of Tonnage, keep
Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or
with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not
admit of delay.

Contracts Clause

Home Building & Loan Ass’n v. Blaisdell (1934)

Facts: In 1933, Minnesota enacted the Mortgage Moratorium Law in an effort to combat the economic
emergency posed by the Great Depression. The law extended the time period in which borrowers could
pay back their debts on property to lenders. The state argued that this was a legitimate use of its police
powers since Minnesota faced massive economic difficulties. Bank brought law suit to strike down the
statute as unconstitutional.

Issue: Did the Minnesota law violate both Article I §10 of the Constitution which prevents a state from
"impairing the Obligation of Contracts"?

Holding: No.

• Issue isn’t whether it’s a good idea to help ppl keep their homes, but whether the state statute impairs
the obligation of contracts by extending the time period to pay back loans

• Modern relevance: responding to the recession of 2008-2009, several states enacted moratoriums on
home foreclosures, required homeowners to pay rent during the extension period, made Blaisdell-like
findings of emergency, and enacted only temporary reliefBlaisdell has been criticized but never

• Majority found wiggle room in the language of the Contracts Clause, suggesting that “the process of
construction is essential to fill in the details” and the clause was not meant to be read literally

• Seems to involve not only gov’t intrusion into contractual relations, but also the exercise of emergency

o Majority analogizes this economic emergency to a natural emergency

o In prior states of natural emergency, the power to interfere in contracts was allowed; this power
is within the police powers reserved to the states

 Thus, this is within the powers reserved to the state and therefore it’s not a violation of
the contracts clause and is in accordance with the 10th Amendment

o Supreme Court is focusing on the fact that this is an economic emergency that effects the
public interest of the people of MN

 Gov’t has the power to protect the public interest through its police powers, it always has
this power, just exercises in an emergency here

 Justice Hughes sounds like Marshall in McCullochinterpreting the constitution to narrow

the scope of the contracts clauseexcept that Hughes is giving more power to the
states, less to the fed gov’t

 Court agrees with Marshallthe Constitution was intended to endure for ages and adapt
to the various crises of human affairsthe framers did not intend to read every clause
literally, but merely to create a framework within which to work

 Hughes said the Contracts Clause was not meant to be read literallystates can adopt
legislation to modify contracts in order to safeguard its citizens

• Court also notes that the statute does not impair the integrity of the mortgage; the person still has to
pay interest and monthly fees; aside from the extension of time to repay, the other conditions of
redemption are unaltered

• Sutherland, dissenting:

o The dissent sees a strict provision which “forbids state action under any circumstances, if it has
the effect of impairing the obligation of contracts”

o The phrase “obligation of a contract” imports a legal duty to perform the specified obligation
of that contract, not to substitute and perform, against the will of one party, a different

o A state, under the contract impairment clause, has no more power to accomplish such a
substitution than one party of the contract has against the other party

o Sutherland says this is an explicit provision; can’t change just based on the circumstances

• This case stands for the court giving the states broad latitude to exercise police powers

• There was concern after this decision that the emergency excuse would be used to justify more
use/abuse by the stateemergency is in the eye of the beholder

o There is no neat answer here; seems to be subjective, both to the state in determining that
there’s an emergency and to the court in determining how to approach this issue

• After Blaisdell, the Contracts Clause was believed to be dead until the late 1970s, when a hand full of
cases struck down state statutes abrogating contractual commitments in circumstances where the
public justifications were far weaker than in Blaisdell

o More recent cases, however, seem to give more deference to state laws which abrogate
contractual expectations

o In short, the Court’s decisions defer to state law contract abrogations unless the Court thinks
deference is unjustified

Rationale: Chief Justice Hughes explored the relationship of emergency to constitutional power, the
historical setting in which the Contract Clause was adopted, and its judicial development. Hughes argued
that the sanctity of contracts in the United States and the Contract Clause, while important, had never
been absolute or meant to be interpreted literally. Thus, in an attempt to "safeguard the vital interests of
its people" a state could adopt legislation which had the effect of "modifying or abrogating contracts
already in effect." Since the demands of the Great Depression were vital to all of the state's citizens, the
law was a legitimate use of Minnesota's police power.

Protection of Federal Institutions

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

Facts: On November 3, 1992, Arkansas voters adopted Amendment 73 to their State Constitution. The
"Term Limitation Amendment," in addition to limiting terms of elected officials within the Arkansas state
government, also provided that any person who served three or more terms as a member of the United
States House of Representatives from Arkansas would be ineligible for re-election as a US Representative
from Arkansas. Similarly, the Amendment provided that any person who served two or more terms as a
member of the United States Senate from Arkansas would be ineligible for re-election as a US Senator from

Issue: Can states alter those qualifications for the U.S. Congress that are specifically enumerated in the

Holding: No.

• Justice Stevens’ majority opinion:

o The qualifications clauses (Art. I §2, cl. 2 and Art. I §3, cl.3) preclude from the states from
exercising any such power

o “State-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell,

violate a third idea central to this basic principle: that the right to choose representatives
belongs not to the States, but to the people. ... Following the adoption of the 17th Amendment
in 1913, this ideal was extended to elections for the Senate. The Congress of the United States,
therefore, is not a confederation of nations in which separate sovereigns are represented by
appointed delegates, but is instead a body composed of representatives of the people.”

o Believed the framers of the Constitution had intended for there to be a uniform national
legislature that represented the people of the United States. Such a requirement could not be
met through Amendment 73, since the states were prohibited from establishing their own
qualifications for congressional service.

o He further noted that sustaining Amendment 73 would result in "a patchwork of state
qualifications" for U.S. Representatives, and described that consequence as inconsistent with
"the uniformity and national character that the framers sought to insure."

o Majority cites McCulloch for the idea that we are NOT going to let the states add to the list of
requirements, as requirements must be uniform throughout the states.

 Court uses the idea in McCulloch to say that this is unconstitutional (idea that the people
can change the constitution, but the people doesn’t mean the people of the individuals
states, it means the people as a whole throughout the country)
• Justice Kennedy concurring:

o The amendment would "interfere" with the "relationship between the people of the Nation and
their National Government."

o People have allegiance to the federal government too, not just their state

o Kennedy reminded the dissenters, with whom he often sided, that citizens of the United States
had a dual identity, one state and one federal, which formed the major “discovery” of the
American constitutional system. The power to add qualifications for membership in Congress
could not be seen as a power “reserved” to the states by the 10th Amendment because it was
never part of the states' original powers.

o McCullochdoesn’t matter that states ratified; states cannot interfere with the federal right of

• Justice Thomas, dissenting:

o Countered that the Constitution's authority depends on "the consent of the people of each
individual State, not the consent of the undifferentiated people of the Nation as a whole," and
argued that on the question of whether the qualifications clause is exclusive, "The Constitution
is simply silent...And where the Constitution is silent, it raises no bar to action by the States or
the people."

o Therefore, the 10th Amendment actually applies here: “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.”

o In response to Stevens, Thomas noted that more than 605 of the voters in Arkansas had
approved the ballot initiative and that it had passed in every congressional district. By failing to
accept the Arkansas measure, the Court had, according to Thomas, misrepresented the nature
of the federal union. That union, he declared, was based on the consent of the people of each
individual state, not the consent of the undifferentiated people of the nation as a whole.

• The Court is limiting the STATES not to supersede Congress (this is different than the previous pattern
of Seminole Tribe, Alden, and Federal Maritime Commission)

• But dissent says —“people are sovereign, but there are 2 different theories of sovereignty.”

o MajoritySovereign as whole

o Dissent Sovereign by acting through state

• Note: The Court's decision was among the most important of the modern era dealing with the
structure of the federal government. The decision effectively wiped off the books congressional term
limit provisions in twenty‐three states, although it left intact measures that limited state legislators and
executive branch officials. Most important, the Court affirmed the right of the people as a whole
and not the states individually to serve as the building blocks of American representative

Rationale: The Constitution prohibits States from adopting Congressional qualifications in addition to
those enumerated in the Constitution. A state congressional term limits amendment is unconstitutional if it
has the likely effect of handicapping a class of candidates and "has the sole purpose of creating additional
qualifications indirectly." Furthermore, "...allowing individual States to craft their own congressional
qualifications would erode the structure designed by the Framers to form a 'more perfect Union.'"

Federal Preemption of State Law

• Preemption: preemption refers generally to the displacement of a lower jurisdiction's laws when they
conflict with those of a higher jurisdiction

o Federal preemption = displacement of state laws by federal laws

• The doctrine of resolving such conflicts between state and federal laws – preemption – stems from
Article VI, § 2, Cl. 2 of the Constitution (SUPREMACY CLAUSE):

o “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary notwithstanding”

• The Constitution’s Supremacy Clause is stronger than its counterpart in the Articles of Confederation

o (1) it clearly requires state courts to implement the priority of the laws passed by Congress
“pursuant to” the powers granted in Article I §9

o (2) it establishes the rule that federal law trumps state law, just as the rule “later in time, first in
priority” governs the relationship between two statutes passed by the same sovereign’s

o (3) the ultimate arbiter of such conflicts is the US Supreme Court, which didn’t exist under the
Articles of Confederation

Geier v. American Honda Motor Company (2000)

Facts: The Department of Transportation, under the National Traffic and Motor Vehicle Safety Act of 1966
(Act), promulgated Federal Motor Vehicle Safety Standard (FMVSS) 208, which required auto
manufacturers to equip some of their 1987 vehicles with passive restraints. To comply with FMVSS 208,
Honda installed manual seat belts and a warning light, instead of a driver-side airbag, for the 1987 Honda
Accord. Alexis Geier suffered severe head and facial injuries in an accident while driving a 1987 Honda
Accord that did not have a driver-side airbag.

Procedure: Geier and her parents sought damages under District of Columbia tort law, claiming that
Honda was negligent in not equipping the Accord with a driver's side airbag. The District Court ruled in
favor of Honda, finding that Geier's claims were expressly preempted by the Act because a jury verdict in
Geier's favor "might establish a safety standard that was not identical to Standard 208." In affirming, the
Court of Appeals concluded that, because Geier's state tort claims posed an obstacle to the
accomplishment of the objectives of FMVSS 208, those claims conflicted with that standard and that the
Act consequently preempted the lawsuit.

Issue: Does the NTMVS Act of 1966 preempt a tort action in which the plaintiff claims that the defendant
auto manufacturer, who was in compliance with the safety standard promulgated under the Act, should
nonetheless have equipped an automobile with airbags?

Holding: Yes.

• The state cannot have a tort standard that requires something that federal law doesn’t require

o This is what’s meant by preemption and the is the issue here

• Breyer’s opinion:

o Court held that a federal automobile safety standard preempted a stricter state rule

o The court held that Geier, who suffered severe injuries in a 1987 Honda Accord, could not sue
Honda for failing to install a driver-side airbag—a requirement under District of Columbia law
tort law but not Federal law—because Federal law preempted the District's rule

o "Geier's 'no airbag' lawsuit conflicts with the objectives of FMVSS 208 and is therefore pre-
empted by the Act"

o Basically, the state law can’t impose something than conflicts with the federal law on the same

• Stevens, dissenting:

o The dissent challenged the majority's "unprecedented use of inferences from regulatory history
and commentary as a basis for implied preemption"

o We believe in the Supremacy Clause, but the federal gov’t shouldn’t make states guessif they
intend to preempt something it should be noted in the statute

o B/c of the role of states as separate sovereigns in our federal system (federalism), we have long
presumed that state laws are not to be preempted by a federal statute unless it is the clear and
manifest purpose of Congress to do so

o Justice Breyer is running amuck

• Appears the dissent may be the better view heretypically states can impose stricter laws than federal
gov’t, but can’t loosen federal laws

Rationale: The Court held that "Geier's 'no airbag' lawsuit conflicts with the objectives of FMVSS 208 and
is therefore preempted by the Act." Justice Breyer wrote for the Court that a rule of state tort law imposing
a duty to install airbags in cars such as Honda's would have presented an obstacle to the variety and mix
of devices that the federal regulation sought and to the phase-in that the federal regulation deliberately
imposed. It would also have made adoption of state mandatory seatbelt laws less likely." The dissent found
fault in the majority's "unprecedented use of inferences from regulatory history and commentary as a
basis for implied pre-emption."

American Insurance Assoc. v. Garamendi (2003)

Facts: In 1999 the California legislature enacted the Holocaust Victim Insurance Relief Act (HVIRA) in an
attempt to facilitate Holocaust-era insurance claims by California residents. The Act required all insurance
companies doing business in California that sold policies to people in Europe between 1920 and 1945 to
make public all of those policies, including the names of policy owners and the status of the policies. A
group of insurance companies and a trade organization sued, saying that only the federal government,
with its jurisdiction over commerce and foreign affairs, had the right to enact such legislation. They also
said the law violated the Due Process and Equal Protection clauses of the U.S. Constitution because the
companies, if they failed to comply, could lose their insurance licenses.

Issue: Did California's passage of the HVIRA interfere with the federal government's sovereignty over
foreign affairs established by Article I of the Constitution?

Holding: Yes.

• There was a connection between the insurance companies and the Nazisthey insured the Jews and
then never paid their claims after the Holocaust

• CA wanted disclosure b/c the legislature didn’t want to do business w/ anyone involved in the Nazi

• 2 things US gov’t agreed to do

o (1) foundation would be exclusive forum/option for claims made against German companies
made in US courts (arising from Holocaust)

o (2) something about good faith?

• Court ruled that an exercise of state power that concerns foreign relations must yield to the Federal
Government's policy

• President of US, back in the day, had set up a fund which gave money to persons affected by
Germany’s anti-Semitism, instead of having them go to court; then CA came along and created this
statute to expose companies w/ ties to the Nazis

o This was an executive agreement, not a treatyexecutive agreement not subject to ratification
by the Senate

o This is an implied power, not specifically enumerated in Article 2

o It’s established by historical precedence, Congress has always acquiesced

• Ginsburg, dissenting:

o Argued that no executive agreement or other formal expression of foreign policy expressly
disapproved of state disclosure laws like California's HVIRA

o There should be an express intent to preempt, and there wasn’tthis would serve as notice to
the states and confine federal power

Rationale: The Court held that California's HVIRA interferes with the president's ability to conduct the
nation's foreign policy and is therefore preempted. The Court reasoned that an exercise of state power
that concerns foreign relations must yield to the Federal Government's policy or that generally there is
executive authority to decide what policy should be implemented. Based on an account of related
international negotiations, the Court found sufficiently clear conflict between HVIRA and the President's
foreign policy. "The basic fact is that California seeks to use an iron fist where the President has
consistently chosen kid gloves," wrote Justice Souter.


• This chapter focuses on commerce

• These cases involve situations where Congress has not exercised legislative power pursuant to the
Commerce Clause

• These cases, instead, consider invalidation of state regulations on the ground that they are
inconsistent with the policies behind the constitutional allocation of power to Congress to regulate
interstate commerce

• They also consider whether state commerce-related actions violate the Article IV guarantee that “the
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the States”

• The economic component involves whether a state or local law discriminates against or has an adverse
effect on interstate commercial transactions

• The political component deals with whether the citizens of a state are seeking to impose burdens on
those not part of the state’s policy or to confer benefits on the state’s citizens at the expense of

Origins of the Dormant Commerce Clause

• Dormant Commerce Clause (DCC): legal doctrine that courts in the United States have inferred from
the Commerce Clause in Article I of the United States Constitutionalso called the Negative Commerce
o The Commerce Clause expressly grants Congress the power to enact legislation that affects
interstate commerce
o The idea behind the Dormant Commerce Clause is that this grant of power implies a
restriction prohibiting a state from passing legislation that improperly burdens or
discriminates against interstate commerce
o The premise of the doctrine is that the U.S. Constitution reserves for the United States Congress
at least some degree of exclusive power "to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes" (Article I, § 8)
o Therefore, individual states are limited in their ability to legislate on such matters
o The central rationale for the rule against discrimination is to prohibit state or municipal laws
whose object is local economic protectionism, laws that would excite those jealousies and
retaliatory measures the Constitution was designed to prevent
• Therefore, the Commerce Clause has 2 functions:
o (1) it authorizes congress to control interstate commercetraditional Commerce Clause
o (2) gives congress the ability to limit state/local regulation that burdens interstate
commerceDormant (Negative) Commerce Clause

Willson v. The Blackbird Creek Marsh Company (1829)

Facts: The state of Delaware authorized the Blackbird Creek Marsh Company to construct a dam spanning
the Blackbird Creek. Willson, the licensed owner of a sailing vessel, was travelling on the Creek and broke
through the dam. The Company successfully sued Willson for trespassing and obtained a court order for
Willson to pay damages. Willson then brought the case to the Supreme Court.

Issue: Did Delaware's authorization of the building of the dam unconstitutionally infringe upon Congress's
powers under the Commerce Clause?

Holding: No. As long as Congress has not exercised its power over commerce in a certain area, a state may
regulate that area as long as such regulations do not conflict with the Dormant Commerce Clause of the
U.S. Constitution.

• DCC applies when congress has done nothing at all; it’s when the states do something which could
interfere with congress’s power to regulate interstate commerce

• Because no federal law dealt specifically with the situation, and the state law did not violate Congress'
Dormant Commerce Clause power, the state law was valid

• Justice Marshall’s opinion:

o Marshall affirmed the lower court's decision, that because no federal law dealt specifically with

the situation, and the state law did not violate Congress' Dormant Commerce Clause power,
therefore, the state law was valid

o If Congress had done something here, we would have a different issue – but Congress has done

• A key issue here is that Marshall is expanding judicial power by expanding the Court’s jurisdiction

o Marshall says that there is a constitutional issue here, so the Supreme Court can hear this case

Rationale: The Court held that the Act's interference with the navigation of the Blackbird Creek was "an
affair between the government of Delaware and its citizens," and was not in conflict with the Commerce
Clause. The Court found that Congress had taken no actions with which the Delaware authorization could
conflict: "We do not think that the Act can be considered as repugnant to the power to regulate commerce
in its dormant state, or as being in conflict with any law passed on the subject."

Rubric for Analyzing Commerce Claims

• If Congress has legislated, the issue is whether the federal law preempts the state or local law.
Congress can invalidate any state/local law that it deems to place an undue burden on interstate
commerce, because Congress has always had the authority under its commerce power to preempt
state or local regulation of commerce.
• If Congress has NOT acted, or if NO preemption is found, the state or local law can still be
challenged on the ground that it excessively burdens commerce among the states. Therefore, even
if Congress has NOT acted (even if its commerce power lies DORMANT), state and local laws can
still be challenged as unduly impeding interstate commerce. The issue with regard to the Dormant
Commerce Clause is whether the judiciary, in the absence of congressional action, should invalidate
state and local laws b/c they place an undue burden on interstate commerce.

Arguments FOR the Dormant Commerce Clause:

• Historical Argument: framers intended to prevent state laws that interfered with interstate
• Economic Argument: the economy is better if state and local laws impeding with interstate
commerce are invalidated
• Political Justification: states and their citizens should not be harmed by laws in other states where
they lack political representationit is the duty of the federal government to protect them
o Example: McCulloch v. MarylandMaryland’s tax on the Bank of the US was invalidated in
part b/c it was a tax that ultimately would have been borne by individuals in other states
who did not have representation in the Maryland political process

Arguments AGAINST the Dormant Commerce Clause:

• Textual Argument: framers did not include a provision prohibiting states from interfering with
interstate commerce, even though they included many restrictions on state power in Art. 1 §10
o J. THOMAS and J. SCALIA are big anti-dormant commerce clause proponents because they
are textualists
• Separation of Powers Argument: Congress was given the constitutional power to invalidate state
laws that unduly burden interstate commerce, and the judiciary should not interfere with that

Discrimination Against and Burdens on Commerce

Philadelphia v. New Jersey (1978)

Facts: NJ passed a state statute that prohibited the importation of most “solid or liquid waste which
originated or was collected outside the territorial limits of the State…” Philly, and several out-of-state
cities, challenged the statute on the grounds that it violated the Commerce Clause, and that “valueless”
waste is not entitled to constitutional protection.

Issue: Is it a violation of the Commerce Clause for one state to prohibit others from selling and
transporting legitimate articles of commerce within its borders?

Holding: Yes.

• NJ didn’t want to let waste from other states into its landfills

• The question arose…is this commerce?nobody in NJ is buying this waste, it’s just being dumped in NJ
and other states are paying to dump there

• Does this sound like Gibbons v. Ogden?

o Court said commerce in that case = intercourse (a transactional interaction)

o This is a market transaction, which would be well within Marshall’s concept of commerce

o This Court says “all objects of interstate trade merit Commerce Clause protection; none is
excluded by definition at the outset…just as Congress has power to regulate the interstate
movement of these wastes, States are not free from constitutional scrutiny when they restrict
that movement”

• Stewart’s opinion:

o “Whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against
articles of commerce coming from outside the State unless there is some reason, apart from
their origin, to treat them differently”

o In other words, NJ can’t regulate beyond its borderscan’t say what’s aloud into its own state in
the free flow of commerce

o Furthermore, the court held that legitimate local interests which had incidental interstate effects
were within the state's general police powers, but "where simple economic protectionism is
effected by state legislation, a virtually per se rule of invalidity has been erected"

o Of course there will be incidental burdens on interstate commerce when a State legislates to
safeguard the health and safety of its peoplebut where other legislative objectives are
credibly advanced and there is no patent discrimination against interstate trade, we use a
balancing teststate legislation will be upheld unless the burden imposed on such commerce
is clearly excessive in relation to the local benefits

o It doesn’t matter what NJ intended the statute to do, it was detrimental to other states in a
greater way

• Rule: State laws that regulate commercial activity may not, on their face or in effect, favor in-state
interests over out-of-state interests.

o States can’t discriminate against other states’ articles of commerce

• Rehnquist, dissenting:

o Maintained that the law was constitutional, on the basis of the validity of quarantine laws
o Rehnquist reasoned that the toxic trash NJ handled from out-of-state was no different than
diseased meat and germ-infected rags that were legally prohibited in quarantine laws

o "The physical fact of life that NJ must somehow dispose of its own noxious items does not mean
that it must serve as a depository for those of every other state”

o Because states can rightfully burden interstate commerce in the name of health and safety,
Rehnquist found no hindrance to this law in the Commerce Clause

• This case stands for stopping states from setting up barriers to commerce

Rationale: All objects of interstate trade deserve protection under the Commerce Clause, including such
waste as is at issue here. The question is whether NJ’s law is constitutionally permissible under the
Commerce Clause. Where simple economic protectionism is effected by state legislation, a virtually per se
rule of invalidity has been erected. Thus, we must determine whether the statute is a protectionist
measure, or a law directed to legitimate local concerns, with effects upon interstate commerce that are
only incidental. The expressed purpose of the law is to protect the local environment and the public health,
safety, and welfare of citizens. NJ can do this by slowing the flow of all wastes into the State’s landfills,
even though interstate commerce may incidentally be affected. However, NJ may not accomplish those
purposes by discrimination against articles of commerce coming from outside the State unless there is
some reason, apart from their origin, to treat them differently. The statute on its face, as well as in its
effect, violates the principle of nondiscrimination.

Granholm v. Heald (2005)

Facts: Michigan and New York laws allowed in-state wineries to directly ship alcohol to consumers but
restricted the ability of out-of-state wineries to do so. In separate cases groups sued the states and argued
the laws violated the U.S. Constitution's "dormant" commerce clause. The dormant commerce clause
prohibited states from passing laws affecting interstate commerce, particularly laws favoring
in-state business over out-of-state business. The states argued the laws were valid exercises of state
power under the 21st Amendment, which ended federal Prohibition and allowed states to regulate alcohol

Issue: Does a state law that allows in-state wineries to directly ship alcohol to consumers, but restricts the
ability of out-of-state wineries to do so, violate the dormant commerce clause in light of the 21st

Holding: Yes.

• In each of these two cases, the state governments of Michigan and New York had argued that Section 2
of the 21st Amendment (ended prohibition) granted them carte blanche to regulate liquor

• One of their justifications for the laws was that by regulating out-of-state wineries in this way, they
might be able to hinder the shipment of alcohol to underage minors; this would serve a valid state

• The statutes at issue here seem to be based on economic discrimination, not on the basis of other
intereststates said they wanted to keep alcohol out of the hands of minors and be able to collect
taxesreally though, they wanted to make money via bypassing wholesalers

• The Supreme Court decided the states' laws were unconstitutional

o The context of the 21st Amendment, they wrote, was to return to the status quo that existed
before Prohibition, making it clear that the states had the power to regulate alcohol however
they wished, including banning alcoholic beverages entirely within the state if desired

o Before Prohibition, the states did not have the power to violate the Dormant Commerce Clause,
and the 21st Amendment was not intended to grant them this power

Rationale: The Court held that both states' laws violated the commerce clause by favoring in-state
wineries at the expense of out-of-state wineries and did so without the authorization of the 21st
Amendment. State authority to engage in such economic discrimination was not the purpose the 21st
Amendment. Moreover, in modern cases, that amendment did not save state laws violating other
provisions of the Constitution.

Kassel v. Consolidated Freightways (1981)

Facts: Kassel was the Director of the Iowa DOT. CF was one of the largest common carriers in the country.
CF mainly uses two kinds of trucks. One consists of a three-axle tractor pulling a 40-foot two-axle trailer.
This unit, commonly called a single, or "semi," is 55 feet. Consolidated would like to use 65-foot doubles on
many of its trips through Iowa. Unlike all other States in the West and Midwest, Iowa generally prohibits
the use of 65-foot doubles within its borders. Instead, most truck combinations are restricted to 55 feet in
length. Doubles, mobile homes, trucks carrying vehicles such as tractors and other farm equipment, and
singles hauling livestock, are permitted to be as long as 60 feet.

Issue: Whether the Iowa statute that prohibits the use of certain large trucks within the State
unconstitutionally burdens interstate commerce?

Holding: Yes.

• CF wanted to have as big trucks as possible, and all the states around Iowa permitted these longer
o Iowa bears a lot of the traffic of these huge trucks b/c they are a gateway to the other states
o Iowa wants to protect the health and safety of its citizens on I-80
• Iowa did not win this case b/c, despite what they argued about the regulations benefitting safety, these
concerns were simply “illusory”
• The Court weighed the state’s safety concern against the detriment to interstate commerce
o Looked at what the evidence shows about the difference in safety between the longer trucks
versus the regular length trucks
• Rule: State’s power to regulate commerce is never greater than in matters of local concern. Matters
that touch safety, which are not illusory, must be balanced by weighing the asserted safety purpose
against the degree of interference with interstate commerce.
• Powell’s opinion:
o Powell found this law to be a great burden on interstate commerce with only an “illusory” safety
o Powell reexamined the evidence on the record and determined that the State failed to meet its
burden of proof to show that there was any statistically significant difference in safety between
the 55-foot and 65-foot trucks
o Moreover, the statute could potentially create more accidents, by forcing shippers to use more
small trucks to carry the same quantity of goods
o Powell further rejected the State’s contention that deference to the state legislature was in
order, because the statute created such a burden to out-of-state residents, and the legislative
history of the “border-cities” exemption suggested that Iowa’s real purpose in enacting this law
was to discriminate against out-of-state businesses
• Brennan, concurring:
o He suggested a new, three-factor test for the Dormant Commerce Clause:
 (1) The courts are not empowered to second-guess the empirical judgments of
lawmakers concerning the utility of legislation.
 (2) The burdens imposed on commerce must be balanced against the local benefits
actually sought to be achieved by the State's lawmakers, and not against those
suggested after the fact by counsel.
 (3) Protectionist legislation is unconstitutional under the Commerce Clause, even if the
burdens and benefits are related to safety rather than economics.
o In this analysis, Brennan suggested greater deference to the state legislature and better
examination of the legislative history of the statute in dispute, rather than giving credence to
the factual record created at trial by the State’s attorneys
o However, protectionist legislation such as this, which shifts burdens and expenses to other
states, does not require such deference
 Brennan would create a per se invalidity rule for such laws
• Rehnquist, dissenting:
o Rehnquist noted that every state has truck-length regulations, and that this law is not odd
o It’s not our task to balance the incremental safety benefits against the burdens on interstate
o He worried that the Court’s ruling basically forced Iowa to bow to the policy choices of
neighboring states, when the power to make such interstate regulations is vested in Congress
by the Constitution
o He further argued that the court was reading too much into the motives of the legislature in
enacting the statute
o Rehnquist further argues that it was error to portray Iowa's statute as protectionist because it is
nearly impossible to separate the safety and protectionist motives of the law
 The problem is that the DCC jurisdiction is a confused area of the law; the CC was never
intended to force one state to comply with the laws of other states; rather, it was
intended to require states to comply with Congress

Rationale: Iowa failed to present any persuasive evidence that 65-foot doubles are less safe than 55-foot
singles. Moreover, Iowa's law is now out of sync with the laws of other Midwestern and Western States.
Iowa thus substantially burdens the interstate flow of goods by truck. Iowa’s safety interest has been found
to be illusory, and its regulations impair significantly the federal interest in efficient and safe interstate
transportation. In 1974, the legislature passed a bill that would have permitted 65-foot doubles in the
State. Governor Ray said: "I find sympathy with those who are doing business in our state and whose
enterprises could gain from increased cargo carrying ability by trucks. However, it would benefit only a few
Iowa-based companies while providing a great advantage for out-of-state trucking firms and competitors at
the expense of our Iowa citizens.” A State cannot constitutionally promote its own parochial interests by
requiring safe vehicles to detour around it.

The Market Participant Exception

• Exception to the Dormant Commerce Clause that the Court made up

• An exception to a phantom statute (DCC)

• Must diagram the business transactions in these cases to understand what’s happening between the

• The most ubiquitous example of a service offered by the individual states is the operation of public

o Because the provision of higher education is deemed not to be a fundamental right, the
individual states that have universities may charge higher tuition to out-of-state students

• Definition: a state may favor its own citizens in dealing with government-owned business and in
receiving benefits from government programs

o If the state is literally a participant in the market, such as with a state-owned business, and not
a regulator, the DCC does not apply

South-Central Timber Development v. Wunnicke (1984)

Facts: Pursuant to an Alaska statute, the Alaska Department of Natural Resources published a notice that
it would sell certain timber from state lands under a contract requiring "primary manufacture" (partial
processing) of the timber within Alaska before the successful bidder could ship it outside of
the State. South-Central engaged in the business of purchasing timber and shipping the logs into foreign
commerce, but did not operate a mill in Alaska and customarily sells unprocessed logs. When it learned
that the primary manufacture requirement was to be imposed on the sale of state-owned timber, South-
Central filed an action seeking an injunction on the ground that the requirement violated the DCC.

Procedure: The District Court agreed and issued an injunction, but the Court of Appeals reversed. That
court found it unnecessary to reach the question whether the requirement would violate the Commerce
Clause, because it found implicit congressional authorization in the federal policy of imposing a primary
manufacture requirement on timber taken from federal land in Alaska.

Issue: May a state, acting as a market participant, impose conditions on “down-stream” market
participants w/o violating the DCC?

Holding: No.

• Alaska, the state, is selling trees to anyone who wants to buy them

• State of Alaska has a contract term that the buyer has to process the trees that they buy from the
state lands via an Alaskan processor

o Essentially attaches a 2nd contract to the original contract for the sale of the timber

• South-Central wants to sell the wood out-of-state but they don’t have a processor within the state

o They are happy about contract #1 (want to buy timber from the state), but they don’t like
contract #2 b/c it requires them to process the timber in Alaska

o Sought an injunction, arguing that this violated the DCC, which isn’t even real (made up by the

• Alaska’s defense is that there is another doctrine, an exception to the DCCmarket participant

o Market participant exception: describes a U.S. State which is acting as a producer or supplier of
a marketable good or service (timber here)

 When a state is acting in such a role, it may permissibly discriminate against non-

o The state of Alaska is saying that, for purposes of this transaction, it isn’t a sovereign at all, it’s
just a market participant, acting like another commercial entity

o This does not fall under the DCC b/c the state is not placing a burden on interstate
commercedifferent from passing a statute that directly discriminates against out-of-state

 The state says they are acting “in the market” like anyone else, not as a “market
regulator,” which would be in violation of the DCC

• The question becomes whether the state is operating through a market mechanism, or whether the
state is a sovereign that is “regulating” commerce

• The state does not overrule the market participant exception; rather, they say it doesn’t
apply here

o By imposing conditions “down-stream,” Alaska went beyond the market in which it was

• Rehnquist and O’Connor, dissenting:

o Alaska is merely paying the buyer of the timber indirectly to hire Alaska residents to process the
timberAlaska is taking a reduced price for their timber in order to put this money into the
private processors in their state; not regulating, simply a trade-off

o Alaska could do this in other ways too; it could even pay to have the logs processed and then
enter the market only to sell processed logs

o It is unduly formalistic to conclude that the one path chosen by Alaska as best suited to promote
its concerns is the path forbidden it by the Commerce Clause

• (pg. 394) Note 4: Why are we even talking about this in the context of the Dormant Commerce Clause?
Wasn’t this question answered in Garcia in the context of the “active” Commerce Clause?

Rationale: If a State is acting as a market participant, rather than as a market regulator, the DCC places
no limitations on its activities. The precise contours of the market participant doctrine have yet to be
established; it has only been applied in 3 cases to date. Alaska participates in the timber market by
imposing conditions down-stream in the timber-processing market. It is clear that Alaska is more than
merely a seller of timber; rather, it’s regulating who and where the timber will be processed. They are
protecting the Alaskan market, and that is regulation. Here, payment for the timber doesn’t end the
obligations of the purchaser. Instead, he is obligated to deal w/ a stranger to the contract after the
completion of the sale. The limit of the market participant exception must be that it allows a State to
impose burdens on commerce within the market in which it is a participant, but allows it to go no further.
The State may not impose conditions that have a substantial regulatory effect outside of that market.
Thus, Alaska may not avail itself of the market participant exception to immunize its down-stream
regulation of the timber-processing market in which it is not a participant.

United Haulers v. Oneida-Herkimer Solid Waste Management Authority (2007)

Facts: Oneida and Herkimer counties adopted a local "flow control" ordinance requiring locally-produced
garbage to be delivered to local publicly-owned facilities. The United Haulers Association filed suit in
federal district court, arguing that by prohibiting the export of waste and preventing waste
haulers from using less expensive out-of-state facilities, the ordinance ran afoul of the
Dormant Commerce Clause. The Supreme Court has held that the Commerce Clause forbids any state
law that regulates interstate commerce.

Procedure: The District Court ruled against United Haulers and held that the ordinance was constitutional
because it did not discriminate against out-of-state businesses. On appeal, the U.S. Court of Appeals for
the Second Circuit affirmed. The Court of Appeals ruled that even if the ordinance imposed a slight burden
on interstate commerce, the effect was outweighed by the ordinance's local benefits.

Issue: Does an ordinance requiring delivery of all solid waste to a publicly owned local facility impose a
substantial burden on interstate commerce and therefore violate the Commerce Clause?

Holding: No. The NY state ordinance forcing private waste management companies to deliver waste to a
public facility did not discriminate against interstate commerce.
• This case broaches the issue of the “market participant exception”but the court avoids mentioning it
o Is the state gov’t regulating the market (not okay)? Or are they acting as a market participant
(exception to the DCC, so it’s okay)?
 Can’t be bothgov’t can’t regulate the market to its own benefit
 Court says we can’t treat gov’t authorities the same as private entities
 Court says collecting trash is a “traditional gov’t activity”these cases give a broad
definition to what constitutes traditional gov’t activities
• Roberts’ opinion:
o In Carbone v. Clarkstown, the Court struck down a similar flow control ordinance that forced
haulers to deliver waste to a private processing facility
o Here, however, the Court held that b/c the facilities were owned and operated by a state-
created public benefit corporation, the restriction was permissible
o "Disposing of trash has been a traditional government activity for years, and laws that favor the
government in such areas— but treat every private business, whether in-state or out-of-state,
exactly the same—do not discriminate against interstate commerce for purposes of the
Commerce Clause"
o The Court applied the balancing test from Pike v. Bruce Church to determine that the local
benefits outweigh the interstate commerce concerns
• Scalia, concurring:
o Agreed with the Court's holding, and wrote separately to restate his opinion that "the so-called
'negative' Commerce Clause is an unjustified judicial invention, not to be expanded beyond its
existing domain"
o Scalia also objected to the use of the Pike test
o Two situations in which Scalia would be willing to go along with the Dormant Commerce Clause:
 (1) a state law that facially discriminates against interstate commerce
 (2) a state law that is indistinguishable from a type of law previously held
• Thomas, concurring:
o Agreed with the Court's holding, and wrote separately to refute his earlier Commerce Clause
opinion in Carbone, stating that "the negative Commerce Clause has no basis in the Constitution
and has proved unworkable in practice"
o Would discard the dormant Commerce Clause completelyit is “untethered from the written
• Alito, dissenting:
o Alito would have held that the ordinance discriminated against commerce and was thus
o The court is trying to draw in the market participant exception, but that’s not the case here
o Questions the public/private distinction
• Note: Roberts’ general rule here is that laws that favor the gov’t in some areas but treat every private
business (in-state or out-of-state) the same are not discriminating. Roberts says the other problem is
that if the citizens of these counties are shifting the cost onto out-of-state people this would be a
problem, but they’re not doing that either. If these 2 things arose, that would be problematic, but we
don’t have them here. He concludes that because there’s police power, and not commerce, that
they’re going to reject the idea in Lochner. In Lochner, the issue is substantive due process, and he
refuses to review Lochner as a DCC case. Commerce is normally defined broadly, and having limited
Lochner, they’re not going to bring it back under this commerce clause idea.
o Scalia and Thomas drop out of the majority on this issue. This is where substantive due
process and the CC come together, and they start talking about Lochner as a DCC case,
which it isn’t. We start to see the 2 doctrines circling around each other.

Rationale: The Court upheld the ordinance. CJ Roberts's majority opinion distinguished the Oneida-
Herkimer ordinance from previous ordinances that were struck down by the Court (for DCC reasons) by
emphasizing that the favored waste-disposal facilities were publicly operated. The majority found that
"[t]he flow control ordinances in this case benefit a clearly public facility, while treating all private
companies exactly the same." After deeming the ordinance nondiscriminatory, the Court balanced its

burden on commerce against its financial, health, and environmental benefits. The Court found
that it imposed only an "incidental burden." The majority declined to "rigorously scrutinize" the economic
effects of the ordinance, preferring to leave the policy analysis to local government.

United Building & Construction Trades Council v. City of Camden (1984)

• Article 4 §2 cl. 1 – Privileges and Immunities Clause

o Prevents a state from treating citizens of other states in a discriminatory manner, with regard to
basic civil rights
o Applies only to rights fundamental to interstate harmony/dignity
o Relates to the general relationship between and among states, not the relationship of the
government between and among the states

Facts: A municipal ordinance requiring that 40% of employees working on city-funded projects be
residents of the city, was challenged under the Fourteenth Amendment of the United States Constitution’s
(Constitutions) Privileges and Immunities Clause.

Procedure: The New Jersey Supreme Court held first that the ordinance did not violate the Dormant
Commerce Clause because the city was acting as a market participant. It further held that the Privileges
and Immunities Clause did not apply to the ordinance, because the discrimination was based on municipal,
rather than state residency.

Issue: Does the ordinance violate the Privileges and Immunities Clause of the 14th Amendment?

Holding: Yes. Held that a city can pressure private employers to hire city residents, but the same exercise
of power to bias private contractors against out-of-state residents may be called into account under the
Privileges and Immunities Clause.

• The Privileges and Immunities Clause prevents states (and cities in this case) from discriminating
against non-residents if two elements are met. First, the discrimination burdens a “fundamental”
privilege. Here the fundamental privilege was employment. Second, there is no “substantial reason” for
the discriminating treatment.
• Rehnquist’s majority opinion:
o Rehnquist held first that the fact Camden adopted the discriminatory ordinance in its capacity
as a municipality does not render it immune from review under the Privileges and Immunities
o Secondly, he held that even though the ordinance discriminates against New Jerseyans who are
not Camden residents just as much as it discriminates against out-of-state citizens, New Jersey
citizens at least have the chance to remedy the problem through the political process (i.e., the
state legislature). Out-of-state residents have no such option.
o Rehnquist also formulated a framework for analysis for Privileges and Immunities claims. First,
the Court must decide whether the law in question burdens any of the “fundamental” privileges
or immunities protected by the clause. Rehnquist held that only those rights fundamental to
interstate harmony were protected by the clause. In this case, he reasoned that while
employment was a fundamental right under this clause, public employment such as this was
o Rehnquist distinguished the Privileges and Immunities from the Dormant Commerce Clause by
explaining that while the DCC is a judicially-created doctrine to prevent economic protectionism,
the Privileges & Immunities Clause is an actual Constitutional text to protect people’s rights.
Thus, since the clauses have two distinct purposes, the “market participant” exception did not
apply to the Privileges and Immunities analysis. Camden could pressure public works
contractors to hire city residents without running afoul of the Dormant Commerce Clause, but
this did not allow the city to escape scrutiny under the Privileges & Immunities Clause. However,
Rehnquist went on to explain that the Privileges & Immunities Clause did not bar all potentially
discriminatory acts by a state or political subdivision.
• Court decides this case by saying there is an insufficient record here; can’t actually decide the case
o Doesn’t matter that the workers are working for private contractors
o Not enough facts to establish a case either way here; case gets sent down to NJ supreme court
• If this had involved both PA and NJ workers, an attempt to replace PA workers with NJ, might have been
a different story
• Dissenting Opinion:
o Blackmun rejected Rehnquist’s assertion that discrimination based on municipal residence could
not escape scrutiny under the Privileges and Immunities Clause, because both in-state and out-
of-state citizens could be equally harmed by such protectionist legislation.
o He also wrote that the Clause was never intended by the Framers of the Constitution to reach
this type of discrimination by municipalities.
o Finally, he believed that out-of-state residents could benefit indirectly from the political action of
in-state residents’ opposition to such discriminatory measures by municipalities, because some
states (California and Georgia) had already passed laws prohibiting exactly the type of
protectionist ordinances as the one in this case.
o Can trace back to the articles of confederation; between states argument, rather than within
 This type of discrimination should not be subject to privileges and immunities clause
 They have local recourse, don’t need to go to federal courts
• Can use their own political action to remedy such discriminatory practices
• Miscellaneous:
o Relation to in-state vs. out of state tuition; what’s the deal?
 Suggestions that in-state students being discriminated against so schools can increase
the money they get from tuition
 Can this clause be used to say that all must pay same tuition or all be admitted based
solely on grades?
 Tax support vs. private funding is the key issue when dealing with privileges and
• Clause may not really be all that powerful


Substantive Due Process

• In the late 1800s, the Supreme Court first recognized that the Due Process Clause of the 14th
Amendment has a non-procedural (substantive) component that protects economic interests

• This was often called the Lochner era of substantive due processit was eventually abandoned

• Lochner, its demise, and the Court’s current use of substantive due process in economic areas, are
discussed in this section

Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary (1925)

Facts: The Compulsory Education Act of 1922 required parents or guardians to send children between the
ages of 8 and 16 to public school in the district where the children resided. The Society of Sisters was an
Oregon corporation which facilitated care for orphans, educated youths, and established and maintained
academies or schools.

Issue: Did the Act violate the liberty of parents to direct the education of their children?

Holding: Yes.

• This is an example of an early case in which the economic and the personal strands of substantive due
process are fused rather than separated

• This decision significantly expanded coverage of the Due Process Clause of the 14th Amendment
• The Compulsory Education Act, prior to amendment, had required all Oregon children between eight
and sixteen years of age to attend public school

• There were several exceptions incorporated in this Act, one of which was for private school kids

• The Act was amended by the 1922 initiative, which would have taken effect on September 1, 1926,
eliminated the exception for attendees of private schools

o Private schools viewed this as an attack on their right to enroll students and do business in the
state of Oregon

• Two sorts of opposition to the law emerged

o Nonsectarian private schools, such as the Hill Military Academy, were primarily concerned with
the loss of their revenue; this loss was felt almost immediately, as parents began withdrawing
their children from private schools in the belief that these would soon cease to exist

o In addition, religious private schools such as those run by the Society of Sisters of the Holy
Names of Jesus and Mary were concerned about the right of parents to send their children to
such schools as they saw fit, including religious schools

• McReynolds’ Opinion:

o Children were not "the mere creatures of the state" and that, by its very nature, the traditional
American understanding of the term liberty prevented the state from forcing students to accept
instruction only from public schools

o He stated that this responsibility belonged to the child's parents or guardians, and that the
ability to make such a choice was a "liberty" protected by the 14th Amendment

o With respect to the discussion of whether or not the schools' contracts with parents constituted
property protected by the 14th Amendment, McReynolds agreed that since the schools were
corporations, they were not technically entitled to such protections. However, he continued,

 “They have business and property for which they claim protection. These are threatened
with destruction through the unwarranted compulsion which appellants are exercising
over present and prospective patrons of their schools. And this court has gone very far to
protect against loss threatened by such action.”

o McReynolds also agreed that businesses are not generally entitled to protection against loss of
business subsequent to "exercise of proper power of the state"

 However, citing a number of relevant business and property law cases, he concluded
that the passage of the revised Act was not "proper power" in this sense, and constituted
unlawful interference with the freedom of both schools and families

o In response to the claims by the appellants that the suits were premature, attempting to
prevent rather than to rectify a problem, Justice McReynolds simply referred them to the
evidence provided by the appellees showing that the schools were already suffering falling

Rationale: The unanimous Court held that "the fundamental liberty upon which all governments in this
Union repose excludes any general power of the State to standardize its children by forcing them to accept
instruction from public teachers only."

Significance: This decision marked the beginning of a period of more liberal interpretation of due process;
specifically, the Court recognized consciously that it had allowed the 14th Amendment to apply to entities
other than individuals, and had broadened the list of liberties or rights which it protected. Over the course
of the next half century, that list would be extended to include the right to marry, to have children, to
marital privacy, to have an abortion, and others.

Economic Rights

Lochner v. New York (1905)

Facts: The state of New York enacted a statute forbidding bakers to work more than 60 hours a week or
10 hours a day.

Issue: Does the New York law violate the liberty protected by due process of the 14th Amendment?

Holding: Yes. A "liberty of contract" is implicit in the due process clause of the 14th Amendment.

• The question arises…can a State deprive its citizens of life, liberty, and property w/o due process?
• Liberty of contract: freedom of individuals and corporations to form contracts without government
restrictions; this is opposed to government restrictions such as minimum wage
• Lochner got fined for overworking an employee…
o Lochner's appeal was based on the 14th Amendment to the Constitution, which provides: "... nor
shall any State deprive any person of life, liberty, or property, without due process of law"
o In a series of cases starting with Dred Scott v. Sandford (1857), the Supreme Court established
that the due process clause (in both the 5th and 14th Amendments) is not merely a procedural
guarantee, but also a "substantive" limitation on the type of control the government may
exercise over individuals
o Lochner argued that the "right to free contract" was one of the rights encompassed by
substantive due process
o The issue facing the Supreme Court in Lochner v. New York was whether the Bakeshop Act
represented a reasonable exercise of the state's police power
• Case is really about the scope of gov’t authority
o There are things that gov’t can’t do; echoes the 10th Amendment as well
o This case attempts to define what the boundaries might actually be
o The idea that some things are reserved to the people, not the state or federal gov’t
o Once we get past the fact that Lochner is about bakers and it’s in 1905, it becomes a
contemporary case attempting to answer the question of why the gov’t can do whatever it
pleases when it sees fit
• The Supreme Court rejected the argument that the law was necessary to protect the health of bakers,
deciding it was a labor law attempting to regulate the terms of employment, and calling it an
"unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to
• Peckham’s opinion:
o 14th Amendment protected an individual's "general right to make a contract in
relation to his business"
o Acknowledged that the right was not absolute, referring disparagingly to the "somewhat
vaguely termed police powers" of the state
 Liberty can be restrained in the interest of the general welfare through police powers
o At the same time, Peckham argued that the police power was subject to certain
limitations; otherwise, he claimed, the 14th Amendment would be meaningless, and states
would be able to pass any law using the police power as a pretext
 Here there is no detriment to the general welfare from overworking as a baker
o Asserted that it was the court's duty to determine whether legislation is "a fair, reasonable and
appropriate exercise of the police power of the State, or…an unreasonable, unnecessary and
arbitrary interference with the right of the individual…to enter into those contracts in relation to
labor which may seem to him appropriate"

 The idea that a baker had as much bargaining authority as did Lochner, the owner of the
bakerthe purpose of the statute is to protect the baker, but he doesn’t want these
o Peckham proceeded to disclaim the idea that long working hours posed a threat to the health of
 Court, w/o saying so, is also weary of extending this and allowing unions to set the
hoursthis is the secret motive behind this decisionprevent unions
 He addressed the argument with the following words: "To the common understanding,
the trade of a baker has never been regarded as an unhealthy one”
o Hence, Peckham and his fellow Justices reached the conclusion that the New York law was not
related "in any real and substantial degree to the health of the employees"
o Consequently, the New York law was not a valid exercise of the state's police powers
• Harlan, dissenting:
o Contended that the liberty to contract under the Due Process Clause of the 14th Amendment is
subject to regulation imposed by a State acting within the scope of its police powers.
o Justice Harlan offered the following rule for determining whether such statutes are
 “The power of the courts to review legislative action in respect of a matter affecting the
general welfare exists only "when that which the legislature has done comes within the
rule that, if a statute purporting to have been enacted to protect the public
health, the public morals or the public safety, has no real or substantial
relation to those objects, or is, beyond all question, a plain, palpable invasion of rights
secured by the fundamental law."
o State statute just has to be reasonable; if it is reasonable it is not up to the court to say
o Justice Harlan asserted that the burden of proof should rest with the party seeking to have such
a statute deemed unconstitutional
o It was "plain that this statute was enacted in order to protect the physical wellbeing of those
who work in bakery and confectionery establishments”
• Holmes, dissenting:
o Holmes accused the majority of judicial activism, claiming that the case was "decided upon an
economic theory which a large part of the country does not entertain"
o He attacked the idea that the 14th Amendment enshrined the liberty of contract, citing laws
against Sunday trading and usury as "ancient examples" to the contrary
o He added, "Some of these laws embody convictions or prejudices which judges are likely to
share. Some may not. But a constitution is not intended to embody a particular economic
o Argues that liberty is malleableit changes over time
• Lochner was one of the most controversial decisions in the Supreme Court's history, starting what is
now known as the Lochner era
• In the Lochner era, the Supreme Court invalidated scores of progressive federal and state statutes that
sought to regulate working conditions during the Progressive Era and the Great Depression
• During the quarter-century that followed Lochner, the Supreme Court generally upheld economic
regulations, but also issued several rulings invalidating such regulations
o The Court also began to use the Due Process Clause of the 14th Amendment to protect personal
(as opposed to purely property) rights, including freedom of speech and the right to send one's
child to private school (which was the beginning of a line of cases interpreting privacy rights;
o The Lochner era is considered to have ended with West Coast Hotel Co. v. Parrish (1937), in
which the Supreme Court took a much broader view of the government's power to regulate
economic activities
• What makes this case contemporary is the idea that there are limits to governmental authority
o There are still powers reserved to the states and to the people
• A constant tension between liberty and regulation
• Lochner has come to stand for a case in which the Court substituted policy concerns in favor of the

Rationale: The Court invalidated the New York law. The majority maintained that the statute interfered
with the freedom of contract, and thus the 14th Amendment's right to liberty afforded to employer and
employee. The Court viewed the statute as a labor law; the state had no reasonable ground for interfering
with liberty by determining the hours of labor.

West Coast Hotel Co. v. Parrish (1937)

Facts: Parrish, an employee of the West Coast Hotel Company, received sub-minimum wage
compensation for her work. Parrish brought a suit to recover the difference between the wages paid to her
and the minimum wage fixed by state law.

Issue: Did the minimum wage law violate the “liberty of contract” as construed under the 5th Amendment
as applied by the 14th Amendment?

Holding: No. Washington's minimum wage law for women was a valid regulation of the right to contract
freely because of the state's special interest in protecting their health and ability to support themselves.

• This case marked the end of the Lochner erathis court took a broader view of state governments’
power to regulate economic activities
• The hotel challenged the minimum wage law for women; they wanted to pay less; court says the state
law is a legit exercise of state poweroverturned earlier decision in Adkins v. Children’s Hospital
o Remember that 1937 is still the Great Depression; Parrish needs the money; likewise, the hotel
wants to pay as little as possible
• Hughes’ opinion:
o Ruled that the Constitution permitted the restriction of liberty of contract by state law
where such restriction protected the community, health and safety or vulnerable groups,
as in the case of Muller v. Oregon, where the Court had found in favor of the regulation of
women's working hours
o The Muller case, however, was one of the few exceptions to decades of Court invalidation of
economic regulation, exemplified in Lochner v. New York
o West Coast Hotel represents the end of that trend, and came about through an unexpected shift
in the voting habit of Justice Owen Roberts
 Coming shortly after FDR had proposed his court reform bill to weaken the votes of the
older, anti-New Deal justices, Roberts' move was notoriously referred to as "the switch in
time that saved nine"
o Additionally, this law protects a class of workers who are in an unequal bargaining position.
Many workers take low-paying jobs that do not meet their bare cost of living, and then they are
forced to use public services to meet this cost of living. The community is not bound to
provide what is in effect a subsidy for unconscionable employers.

• In order to access the issue of liberty in these cases, we must look at who are the interested parties
o Here, unlike Lochner, there is a larger social interest to the community
o Lochner was more concerned with each individual baker
• Sutherland, dissenting:
o Contained a thinly veiled admonition of Roberts, as well as an insistence that the Constitution
does not change by events alone (namely, the Great Depression)
o The dissent also adhered to the previously dominant perspective that the majority repudiated:
that freedom of contract was the rule with few exceptions, and that the shift of the burden for
the poor onto employers was an arbitrary and naked exercise of power
• nd
2 big issue, besides women’s rights, is the concept of liberty that changes over time which takes into
account social interests rather than just the immediate parties involved (Lochner)
• Hillthis is viewed as progressive at the time, but nowadays, it looks like a violation of Equal
o “What could be closer to the public interest than the health of women and their protection
from unscrupulous and overreaching employers?”
• Although the majority's view on economic regulation remains the law of the land today, the expansion
of Commerce Clause jurisprudence signaled by West Coast Hotel was reined in slightly by US v. Lopez
and US v. Morrison

Rationale: The Court held that the establishment of minimum wages for women was constitutionally
legitimate. The Court noted that the Constitution did not speak of the freedom of contract and that liberty
was subject to the restraints of due process. The Court also noted that employers and employees were not
equally "free" in negotiating contracts, since employees often were constrained by practical and economic
realities. This was found to be especially true in the case of women.

State Farm v. Campbell (2003)

Facts: Although investigators concluded that Campbell caused an accident in which one person was killed
and another permanently disabled, his insurer, State Farm, contested liability and took the case to trial.
State Farm assured the Campbells that they would represent their interests. After losing in court, the
Campbells sued State Farm for bad faith, fraud, and intentional infliction of emotional distress.

Procedure: In the first part of the trial, the jury found State Farm's decision not to settle unreasonable. In
the second part, the trial court denied State Farm's renewed motion to exclude dissimilar out-of-state
conduct evidence, ruling such evidence was admissible to determine whether State Farm's conduct in the
Campbell case was indeed intentional and sufficiently egregious to warrant punitive damages. The jury
awarded the Campbells $2.6 million in compensatory damages and $145 million in punitive damages,
which the trial court reduced to $1 million and $25 million respectively. The Utah Supreme Court
reinstated the $145 million punitive damages award.

Issue: Is an award of $145 million in punitive damages, when full compensatory damages are $1 million,
excessive and in violation of the Due Process Clause of the 14th Amendment?

Holding: Yes. Held that the due process clause usually limits punitive damage awards to a maximum of
ten times the size of the compensatory damages awarded.

• State Farm refused to settle with the other party on behalf of Campbell
o State Farm wanted to settle for the policy limit of $25,000 per claimant
o Jury determined that Campbell was 100% at fault, so what the hell was State Farm thinking?
o Jury returned verdict for $185,000, but State Farm refused this
o Then the Campbell’s sued State Farm
• Campbell ended up making a ton of money for committing a torthow does this happen?
o But this isn’t really the issuethis case has nothing to do with the injured parties
o The question here is the relationship between the compensatory and punitive damages, which
is a question of taking of property
 $145 million is depriving State Farm of their property, in violation of due process
• Supreme Court was after two interests here:
o (1) personal injury lawyers bringing these cases
o (2) they wanted to discipline the state courts
o No issue of justice herewanted to bring an end to huge punitive damages awards
• Kennedy’s majority opinion:
o In terms of reprehensibility, Utah jury was wrong to penalize State farm for its conduct out of
that state
o When compared to the compensatory damages, the ratio is too high
o The Court has preference for a single digit ratio, but it’s not bright line rule
o Finally, punitive damages are no substitute for criminal process that does exist for the
 Just b/c State Farm couldn’t be held criminally liable, this doesn’t justify punishing them
financially to this degree
• The Court reached this conclusion applying guideposts first noted in BMW of North America, Inc. v.
Gore, requiring courts to consider:
o (1) The degree of reprehensibility of the defendant's misconduct
o (2) The disparity between the actual or potential harm suffered by the plaintiff and the punitive
damages award
o (3) The difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases
• Scalia and Thomas, dissenting:
o Argued that the Due Process Clause provides no substantive protections against “excessive or
unreasonable” awards of punitive damages
o Nowhere in the Constitution does it say “life, liberty, and punitive damages”
• Ginsburg, dissenting:
o Noted that the decision overstepped states' traditional territory to regulate punitive damages
o She expressed her view that the Supreme Court "has no warrant to reform state law governing
awards of punitive damages..."
o She wrote that punitive damage caps should be set in place by legislatures
• An amazing case on many levels, one of which is a Supreme Court majority deciding the ratio of
compensatory to punitive damages with numbers
• This is a modern use of substantive due process
• This case demonstrates how DCC and substantive due process have somewhat merged together
(comes out of freedom of K) to allow courts to do anything they want unhindered by the Constitution
o Court talks about burdening people of other statescould bring up commerce clause issues

Rationale: The Court held that the punitive award of $145 million was neither reasonable nor
proportionate to the wrong committed, and it was thus an irrational, arbitrary, and unconstitutional
deprivation of the property of the insurer. The Court reasoned that evidence of dissimilar out-of-state
misconduct was an improper basis for punishing the insurer for the limited harm and noted, "few awards
exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will
satisfy due process."


• This deals with the reach of Congress’s power under §5 of the 14th Amendment: “The Congress shall
have power to enforce, by appropriate legislation, the provisions under this article.”
• Can Congress provide protection broader/narrower than the due process and equal protection rights
accorded to persons by the Court?
• Is there any limit to the remedies Congress can provide when the alleged violator is a state that would
otherwise have immunity under the 11th Amendment?
• The following cases provide the framework established by the Court for assessing the §5 power of
• The Reconstruction Amendments were enacted in the backlash of occupation by the Union army, the
freeing of slaves
• 14th Amendment was meant to rectify other parts of the Constitution, but there were ?s about how to
enforce it
o Section 5 exemplifies the core conflict surrounding what congress can do and what the court
can do to enforce the 14th Amendment

The Framework for Enforcing the 14th Amendment

Katzenback v. Morgan (1966)

Facts: Prior to the 1960s, many states and municipalities in the United States used literacy tests in order
to disenfranchise minorities. In 1959, the U.S. Supreme Court held that literacy tests were not necessarily
violations of Equal Protection Clause of the 14th Amendment nor of the 15th Amendment. (Lassiter v.
Northampton Election Board (1959)). In 1965, Congress passed the Voting Rights Act of 1965, which
sought to safeguard the voting rights of previously disenfranchised minorities. Among other
provisions, the Voting Rights Act made some literacy tests illegal. Section 4 (e) was aimed at securing the
franchise for New York City's large Puerto Rican population and provides that “no person who has
completed the 6th grade in a public school, or an accredited private school, in Puerto Rico in which the
language of instruction was other than English shall be disfranchised for inability to read or write English."
Registered voters in the state of New York brought suit, alleging that Congress exceeded its powers of
enforcement under the 14th Amendment and alleging that Congress infringed on rights reserved to states
by the 10th Amendment.

Issue: May Congress enact laws stemming from its 14th Amendment enforcement power (§5) that increase
the rights of citizens beyond what the judiciary has recognized?

Holding: Yes.

• NY statute required people to be able to speak English in order to vote

• Voting Rights Act comes along and says Puerto Ricans can’t be disenfranchised for not being able to
read or write
o This would change outcomes of electionsthere’s a new voting block
 Some people didn’t like this
• This was a question of vertical federalism; does congress have authority to pass voting rights statute
that violates a state statute?
• Attorney General of NY argued not federalism, as we would have expected, but that the judiciary must
decide; not saying the federal gov’t doesn’t have this authority, but that the wrong branch is deciding
this issue
o 4(e) of the federal statute can’t be sustained as appropriate legislation under the equal
protection clause of the 14th Amendment
o Court must determine whether the state statute is interfering with a federal right, and only after
that determination has been made can Congress legislate
• Section 4(e) arguably expanded rights beyond what the Court had recognized in Lassiter, but Justice
Brennan ruled that Section 4(e) was appropriate
• The question before the court is…whether congress can prohibit NY law by legislating through §5 of the
14th Amendment
o They say §5 of 14th Amendment is basically the same as the necessary and proper clause
(Article 1 §8)
o Sounds like the broad reading of the necessary and proper clause by Marshall in
 In fact, the Court applied the appropriateness standard of McCulloch to determine
whether the Act was constitutionalsaying that the Framers intended to grant Congress
the same authority in the 14th Amendment as in the Necessary and Proper Clause
• In doing so, Brennan has often been credited with introducing the "ratchet theory" for congressional
legislation enacted under §5
o The "ratchet theory" held that Congress could ratchet up civil rights beyond what the Court had
recognized, but that Congress could not ratchet down judicially recognized rights
o The "ratchet theory" essentially set judicially recognized rights as a support, on which Congress
could expand if it so chose
o According to this "ratchet" theory, Justice Brennan's opinion allowed for multiple interpreters of
the 14th Amendment, as opposed to just the judiciary
o The remedy here is not prohibited by the Constitution; it’s in accordance with the “letter and
spirit of the Constitution”
• Harlan, dissenting:
o Pivotal question is what the congressional enactment does to the question of the equal
protection argument
 Congress has authority to “enforce” prohibitions by appropriate legislation
o Majority has confused two things: (1) the issue of how much power congress has under §5 and
(2) what types of issues must be determined by the judiciary
o Criticized the "ratchet theory" and the idea of multiple interpreters of the 14th Amendment
o Harlan relied on the separation of powers doctrine to argue that allowing Congress to interpret
the 14th Amendment undercut the power of the judiciaryBALANCE OF POWERS argument
 The Court is supposed to be the one who interprets the Constitution, not Congress
o Harlan objected to Congress having the power to interpret the 14th Amendment substantively
(that is, to create new rights)

o He argued that the appropriate use of Section 5 power was the enforcement of judicially
recognized 14th Amendment rights
• Court says Congress can decide when and how to act; Congress can interpret the Constitution
• Hillthis case says that §5 of 14th Amendment enhances Congressional authority &
Supremacy/Commerce Clause gives Congress broad power
o Court basically says Congress has the authority to define the 14th, not the Court
o Ever since this case, Court has tried to narrow Necessary & Proper Clause & 14th Amendment
support of Congressional authority, like in City of Boerne (below)

Rationale: The majority held that Section 4(e) was constitutional. Writing the majority opinion, Justice
Brennan stressed that §5 of the 14th Amendment is "a positive grant of legislative power authorizing
Congress to exercise its discretion in determining the need for and nature of legislation to secure 14th
Amendment guarantees." Justice Brennan applied the appropriateness standard of McCulloch v. Maryland
(1819) to determine whether the legislation passed constitutional muster.

City of Boerne v. Flores (1997)

Facts: Archbishop Flores sued local zoning authorities for violating his rights under the 1993 Religious
Freedom Restoration Act (RFRA) by denying him a permit to expand his church in Boerne, Texas. Boerne's
zoning authorities argued that the Archbishop's church was located in a historic preservation district
governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional
insofar as it sought to override this local preservation ordinance.

Issue: Did Congress exceed its 14th Amendment enforcement powers by enacting the RFRA which, in part,
subjected local ordinances to federal regulation?

Holding: Yes.

• Katzenbach v. Morgan was a prime example of judicial deference to Congressional authority, and
allowed Congress great latitude in use of Section 5
o 31 years after Katzenbach, the Supreme Court revisited the "ratchet" interpretation here
o The Boerne Court stated: "This is not a necessary interpretation…or even the best one”
o By striking down the RFRA, the Court addressed the separation of powers concerns
voiced earlier by Justice Harlan in Morgan
• Court narrowed the enforcement of the 14th Amendment from a broad use of the necessary and proper
(used in McCulloch and Morgan) clause to a more narrow interpretation
• The Court essentially takes the dissent from Katzenbach and makes it the majority here
• Kennedy’s opinion:
o Because it was the Court that had the sole power of defining the substantive rights guaranteed
by the 14th Amendment—a definition to which Congress could not add or subtract—and because
RFRA was not legislation designed to have "congruence and proportionality" with the
substantive rights that the Court had defined, Congress could not constitutionally enact RFRA
o The Court retains the power, since Marbury, to determine whether Congress has
exceeded its powers under the Constitution
o Although Congress could enact "remedial" (Harlan in Katzenbach) or "prophylactic" legislation
that guaranteed rights not exactly congruent with those defined by the Court, it could only do
so in order to more effectively prevent violations of those rights actually guaranteed by the
o RFRA was seen as disproportionate in its effects compared to its objective
o Moreover, remedial or prophylactic legislation still had to show "congruence and proportionality"
between the end it aimed to reach (that is, the violations it aimed to correct), and the means it
chose to reach those ends (that is, the penalties or prohibitions it enacted to prevent or correct
those violations)
 Because RFRA was not reasonably remedial or prophylactic, it was unconstitutional
o RFRA also violates the Establishment Clause in that it provides a significant legal advantage to
owners of religious property
 RFRA fails to consider whether owners of religious property have been burdened any
more than other citizens, or if their rights have been violated because of their religion
• Implications: Boerne is important for several reasons
o It introduced a completely new test for deciding whether Congress had exceeded its Section 5
powers: the "congruence and proportionality" test, a test that has proven to have great
importance in the context of the 11th Amendment
 The "congruence and proportionality" requirement replaced the previous theory
advanced in Katzenbach that the Equal Protection Clause is "a positive grant of
legislative power authorizing Congress to exercise its discretion in determining the need
for and nature of legislation to secure Fourteenth Amendment guarantees"
 Before the 1997 Boerne decision, Katzenbach was often interpreted as allowing Congress
to go beyond, but not fall short of, the Court's interpretation of the Equal Protection
o Another reason was that it explicitly declared that the Court alone has the ability to state which
rights are protected by the 14th Amendment
o Under §5 of the 14th Amendment to the Constitution, “Congress shall have the power to enforce,
by appropriate legislation, the provision of this article.”

 Boerne limits this power to enforcementCongress has no right to determine what

actions constitute a constitutional violation, only the power to provide remedies for those
violations already enumerated

Rationale: Under the RFRA, the government is prohibited from "substantially burdening" religion's free
exercise unless it must do so to further a compelling government interest, and, even then, it may only
impose the least restrictive burden. The Court held that while Congress may enact such legislation as the
RFRA in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which
states enforce the substance of its legislative restrictions. This, the Court added, is precisely what the
RFRA does by overly restricting the states' freedom to enforce its spirit in a manner which they deem most
appropriate. With respect to this case, specifically, there was no evidence to suggest that Boerne's historic
preservation ordinance favored one religion over another, or that it was based on animus or hostility for
free religious exercise.



• Constitution, Article III: establishes the judicial branch of the federal government

o Section 1: federal courts

o Section 2: federal jurisdiction and trial by jury

 2.5: judicial review

o Section 3: treason

• The power of the federal judiciary and ultimately the Supreme Court to invalidate federal and state
legislation is known as judicial reviewcreated in Marbury v. Madison

o Judicial reviewonly the Court can interpret the law

Invalidation of Federal Laws

• Marshall’s opinion in Marbury v. Madison was written in politically turbulent times

• Marshall, as acting Secretary of State for Federalist President John Adams, had signed the commissions
of Marbury and other justices of the peace whose positions had been created by the Federalist

Congress just before Republican Thomas Jefferson took office

• Jefferson was not happy about the appointment of “midnight judges” by his opponents

o Not surprisingly, he refused to deliver the commissions and claimed they were void

• Marbury takes up the issue of constitutionality of Jefferson’s refusal to deliver Marbury’s commission

• Note that Marbury ends up getting nothing out of this decision

• Also note that Republicans (Jefferson) back then weren’t the Republicans of todaythey cared about
protecting small business, small farms, etc.

Marbury v. Madison (1803)

Facts: The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as
a justice of the peace in the District of Columbia. Marbury and several others were appointed to
government posts created by Congress in the last days of John Adams's presidency, but these last-minute
appointments were never fully finalized. The incoming President, Thomas Jefferson, did not approve of the
“midnight judges” and refused to approve their commissions. Jefferson’s Secretary of State, James
Madison, was ordered to withhold the commissions. The disgruntled appointees invoked an act of Congress
and sued for their jobs in the Supreme Court.

Issues: (1) Is Marbury entitled to his appointment? (2) Is his lawsuit the correct way to get it? (3) And, is
the Supreme Court the place for Marbury to get the relief he requests?

Holding: (1) Yes. (2) Yes. (3) It depends.

• The Supreme Court is a branch of gov’tJudicial branch

• This case also deals with legal ethics

o Recusal: a judge can recuse himself when he/she has a conflict of interest

• Article 3 of the US Constitution: establishes the judicial branch of the federal gov’t; short and general;
courts don’t have a long list of enumerated powers like in Article 1 and 2

o §1: structure of the federal court system

 Says congress can ordain and establish other courts, but can’t make another Supreme
Courtbasically, Congress can legislate to make courtswe can infer this to mean they
can also re-legislate

o §2, Cl. 1: subject matter jurisdictionfederal courts only have original jurisdiction over cases
involving a federal question, “arising under the Constitution”; and diversity jurisdiction

o §2, Cl. 4: original and appellate jurisdiction

 Original jurisdiction: right to hear a case for the first timeConstitution says Supreme
Court only has original jurisdiction to hear cases involving gov’t officials and cases in
which a state is a party

• Marbury held that Congress can neither expand nor restrict the original
jurisdiction of the Supreme Court

 Appellate jurisdiction: right to hear cases on appeal; unlike original jurisdiction, appellate
jurisdiction is subject to regulation by Congress

o §2, Cl. 5: judicial review

• Over time the court has developed doctrines to limit its own jurisdiction when it doesn’t want to hear a
case or when there are tricky questionsthis is the 1st example

• Background:

o Midnight justices appointed; Adams signs all the commissions on his way out

o Commissions go to state dept. where Secretary of State John Marshall (who was serving
simultaneously as CJ)he is supposed to sign and deliver them

o Judiciary Act of 1801 wipes out one seat on the Supreme Courtthere was a vacant seat
Jefferson thought he’d be able to fill with one of his guys

 Act also makes new courts and adds judges, one of which was Marbury

 Expanded Judiciary Act of 1789this is what Marbury relies on and what eventually the
Court holds is unconstitutional

o Marshall doesn’t deliver all the commissionsMarbury wants his commission

o It’s been said that Marshall didn’t like Jefferson b/c he didn’t serve in the war

o Marshall didn’t think it mattered if he delivered the commissions or not b/c he signed them

o Jefferson said he had to deliver themthis was the technical issue in this case

o Marbury wanted a writ of mandamusissued by a superior court to compel a lower court or a

gov’t officer to perform mandatory or purely ministerial duties correctly

 Judiciary Act of 1789 gave the Supreme Court the power to issue writs of mandamus

• Root of the problem in Marbury v. Madison:

o If Marshall's court commanded Madison to deliver the commissions, Madison might ignore the
order, thereby indicating the weakness of the court. Similarly, if the court denied Marbury's
request, the court would be seen as weak. Marshall held that appointee Marbury was indeed
entitled to his commission. However, Marshall held that the Judiciary Act of 1789 was
unconstitutional, as it purported to grant original jurisdiction to the Supreme Court
in cases not involving states or ambassadors. The ruling thereby established that the
federal courts could exercise judicial review over other branches.

• It looks like Marbury is winning the whole time, but Marshall figures out how to make it look like
Jefferson wins (afraid Jefferson would impeach him if he didn’t like the outcome)

• Judicial review: doctrine under which legislative and executive action is subject to invalidation by the

o specific courts with judicial review power must annul the acts of the state when it finds them
incompatible with a higher authority, most notably the U.S. Constitution

• Marbury v. Madison was the first time the Supreme Court declared something
"unconstitutional," and established the concept of judicial review in the U.S.

• In short, the constitutional issue on which Marbury v. Madison was decided was whether Congress
could expand the original jurisdiction of the Supreme Court

o Marbury filed a petition for a writ of mandamus directly in the Supreme Court

o Marbury's argument was that in the Judiciary Act of 1789, Congress granted the Supreme Court
original jurisdiction over petitions for writs of mandamus

 Original jurisdiction: case can be brought straight to the Supreme Court

 Appellate jurisdiction: case must come from an appeal from a lower court

o So the court had to have original jurisdiction over the case to hear itthis was the issue

o Simply put, the issue is thisthe Judiciary Act of 1879 gave the Supreme Court original
jurisdiction over writs of mandamus, but the Constitution did not (Art. 3, Sec. 2, Cl. 2), so via the
Act, Congress was expanding original jurisdiction of the Supreme Court, which was in conflict
with the Constitution

 Marshall could have also read Art. III, §2, cl.2 to say that Congress can adjust original
jurisdiction (BROAD), but instead he read that as only applying to the appellate
jurisdiction b/c of the separation of the sentences (NARROW)

• Marshall’s opinion:

o The Court rendered a unanimous (4-0) decision that Marbury had the right to his commission
but the court did not have the power to force Madison to deliver the commission (no original
jurisdiction). Chief Justice Marshall wrote the opinion of the court. Marshall presented the case
as raising three distinct questions:

 (1) Did Marbury have a right to the commission?

 (2) Do the laws of the country give Marbury a legal remedy?

 (3) If so, is a writ of mandamus the correct legal remedy?

o Marshall quickly answered the first two questions affirmatively; he found that the failure to
deliver the commission was "violative of a vested legal right"

 (1) all the proper procedures were followed, but the commission wasn’t delivered; there
is an evidentiary record with affidavits (sworn statement not subject to cross-
examination)he has a right to the commission

• Real question is whether Marbury has been appointedMarshall side steps the
fact that it wasn’t delivered; Marshall didn’t want his name all over the place
(Marshall was the former Sec. of State), or he’d have to recuse himself

• Marshall may have been worried that Jefferson would try to remove him and stack
the Court w/ judges w/ similar viewsMarshall is trying to prance around and not
piss off Jefferson while at the same time justifying Madison’s commission

• With regards to Madison withholding the commission, Marshall says Madison
violated a vested legal right of Marbury’sMarbury is winning at this point!

 (2) yes, there is a legal remedydevelops the “political question doctrine”an issue that
the federal courts refuse to decide because it properly belongs to the decision-making
authority of elected officials; up to the Pres and Congress to examine these
thingshowever, Court will review a violation of a vested legal right here

• Marbury is necessary for this first part so that Marshall can beat up on Jefferson
laterMarbury looking strong so far

 (3) “this is a plain case of mandamus”

• But can the writ of mandamus that Marbury is entitled to be issued by the
Supreme Court???  this is a question of jurisdiction

• Marshall first examined the Judiciary Act of 1789 and determined that the Act
purported to give the Supreme Court original jurisdiction over writs of

o Marshall then looked to Article III of the Constitution, which defines the Supreme Court's original
and appellate jurisdictions

 Marbury had argued that the Constitution was only intended to set a floor for original
jurisdiction that Congress could add to

 Marshall disagreed and held that Congress does not have the power to modify the
Supreme Court's original jurisdiction, only appellate jurisdiction

 This case involves original jurisdiction, not appellate jurisdiction (which Congress can
control)§13 of the Judiciary Act of 1789 is trying to expand original jurisdiction

 Art. III, §2, Cl. 1: Supreme Court will have federal question jurisdiction and diversity

 Art. III, §2, Cl. 2: must be read literally according to Marshall; this clause only refers to
regulations of appellate jurisdictiontherefore, the Court can’t issue the writ

 *Consequently, Marshall found that the Constitution and the Judiciary Act
conflicted*this was the turning pointled to idea of judicial review

o This conflict raised the important question of what happens when an Act of Congress conflicts
with the Constitution

 Marshall answered that Acts of Congress that conflict with the Constitution are
not law and the Courts are bound instead to follow the Constitution, affirming
the principle of judicial review

 In effect, the Court concludes that Marbury should win, but then finds that they can’t let
him win b/c it’s not within their authority/jurisdictionso Marbury gets screwed and he
disappears and nobody remembers him

• If Congress could expand and shrink the jurisdiction of the Supreme Court, this
would be really fucked up

 Marshall doesn’t want jurisdiction here, b/c he doesn’t want to go toe to toe w/ Jefferson

• His reading of the Judiciary Act is completely against his prior

jurisprudencehe is reading a strict interpretation of the Constitution,
contrary to his Commerce Clause opinions where he wanted the
Constitution to be malleable

• He compares the US vs. British common law where nothing is written downsays
this is what happens when you have a written constitution; we must follow it

 Marshall is using indeterminacy to protect himself and the Court, and he’s willing to
throw Marbury overboard in order to do sothis case doesn’t matter at all except that it
established the role of the Supreme Court as a constitutional actor via judicial review

o Marshall said there would be no point in having a written Constitution if the courts could just
ignore it

o Since it is a court's duty to decide cases, courts have to be able to decide what law applies to
each case

 Therefore, if two laws conflict with each other, a court must decide which law applies

 Finally, Marshall pointed to the judge's oath requiring them to uphold the Constitution,
and to the Supremacy Clause of the Constitution, which lists the "Constitution" before
the "laws of the United States"

• “It is emphatically the province and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each.”

• 2 interlocking arguments here:

o (1) Constitution is paramount: the purpose of a written constitution is to establish fundamental

and paramount law (so any contrary act of Congress must be void)

 Also stemming from the Supremacy Clause – Art. 6, §2

o (2) Judiciary is the ultimate interpreter: “it is emphatically the province and duty of the JUDICIAL
department to say what the law is”

 Meaning it is the Court, NOT the legislature, who must make a final determination
whether, in a particular case, and act of Congress is in conflict with the Constitution

 Broadens scope of judicial power

• Jefferson disagreed with Marshall's reasoning in this case, saying that if this view of judicial power
became accepted, it would be "placing us under the despotism of an oligarchy.”

• Notes:

o Criticisms of the holding in this case:

 Most people accept that the Constitution is superior to statutes and that where there is a
conflict, the Constitution must be respected

 However, critics argue that nowhere in the Constitution is it stated that Courts (and not
Congress) should be the final arbiter on whether or not a statute does conflict with the

• It is possible to have a system in which the Constitution is STILL the supreme law
of the land, but it is Congress (not the Courts) who have the duty to make sure
than no act they put forth is in conflict with the Constitution (thereby making
Congress, not the Courts, the final arbiter on interpreting the Constitution)

 So Marshall is making an assumption when he states that it is the ultimate job of Courts,
not Congress, to “say what the law is” (interpret the Constitution)

 But there are POLICY reasons for this being the job of Courts and not Congress:

• Federal judges are appointed for life and are more free from political pressures
than Congressmen

• As a less politically-involved group, they can interpret the Constitution without a

political skew

o (of course, here that is the opposite of what occurred, as Marshall made an
extremely political move in the judiciary!)

o Chemerinsky (and Hill) on the brilliance of Marshall here:

 Politically, Marshall had no choice but to deny Marbury reliefgiving Marbury the
commission would have meant a political crisis with Jefferson and in turn with the
Supreme Court

• Jefferson might seek the impeachment of the Federalist Justices and try for a
Republican-controlled judiciary

 So Marshall had to rule in favor of the Jefferson administration

 But at the same time, Marshall wants to stick it to Jefferson

 So, MARSHALL rules in favor of the Jefferson administration (by denying Marbury the
commission), but does so with the rationale that the Judiciary Act passed by Congress is
unconstitutional, and the Judiciary branch (as opposed to any other branch) has the
ultimate power to determine when a statute is unconstitutional, thus giving the judiciary
branch a strong and articulated power that the other branches do NOT have

• Basically, with this decision, Marshall loses the battle but wins the war

Rationale: The justices held, through Marshall's forceful argument, that on the last issue the Constitution
was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to
the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an
act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial

Invalidation of State Laws

Martin v. Hunter’s Lessee (1816)

Facts: Lord Fairfax held land in Virginia. He was a Loyalist and fled to England during the Revolution. He
died in 1781 and left the land to his nephew, Denny Martin, who was a British subject. The following year,
the Virginia legislature voided the original land grant and transferred the land back to Virginia. Virginia
granted a portion of this land to David Hunter. The Jay Treaty seemed to make clear that Lord Fairfax was
entitled to the property. The Supreme Court declared that Fairfax was so entitled, but the
Virginia courts, where the suit arose, refused to follow the Supreme Court's decision.

Issue: Does the appellate power of the Supreme Court extend to the Virginia courts?

Holding: Yes. Article 3 of the U.S. Constitution grants the U.S. Supreme Court jurisdiction and authority
over state courts on matters involving federal law.

• Issue here is whether the Sup. Ct. can review decisions made in state courts, when those cases have
constitutional implications

• This is a property rights case; doesn’t seem like a true structural case dealing with the constitution

• Virginia passed a statute saying all these land grants made by the English King are null and void

• Jay Treaty is a peace treaty between US and England which, among other things, affirms British land

• Martin was the first case to assert ultimate Supreme Court authority over state courts in
matters of federal law

• The Virginia state supreme court upheld the confiscation

o It did not do so on the grounds that Virginia law was superior to U.S. treaties (the Jay Treaty),
but rather because it argued that its own interpretation of the treaty revealed that the treaty
did not, in fact, cover the dispute

o Under VA law, only David Hunter has rights to the land b/c he got it from the Commonwealth of

o On review, the U.S. Supreme Court disagreed with this conclusion, ruling that the treaty did in
fact cover the dispute, and remanded the case back to the Virginia Supreme Court, but the
Virginia court then argued that the U.S. Supreme Court did not have authority over
cases originating in state courtessentially challenged appellate jurisdiction

o On remand, the Virginia Supreme Court refused to uphold hold the US Supreme
Court’s reversal

• The U.S. Supreme Court reversed the state court’s decision on appeal, ruling that questions of
federal law were within its jurisdiction, and thereby establishing its own supremacy in
matters of constitutional interpretation

• Big point is that there must be uniformity in the meaning of the constitutionif left up to each state’s
supreme court, there would be a different meaning of the constitution in each state

o Thus, we need a reviewing authority (US Supreme Court) to ensure uniformity of the application
of the constitution to the states

o The constitution was designed for the equal benefit of all people of the US

• Justice Story is arguing that individuals have rights under the constitution, not just statesmust have a
forum to invoke these rights and have them uniformly applied

• FEDERALISM caseSupreme Court can retroactively nullify a state treaty

• Majority opinion:

o Justice Story uses the preamble to show the states did not give up sovereignty, but rather it was
the people that defined sovereignty

 Constitution was established by the “people” and not the “states”

 This goes on the “McCulloch list” or the “Preamble list”

o In the spirit of Marbury, Story says that these situations arise from time to time, and somebody
has to decide what the US Constitution means

o Justice Story cited Article III, Sec. 2, Cl. 2, stating that "in all other cases before mentioned the
Supreme Court shall have appellate jurisdiction" showed a textual commitment to allow
Supreme Court review of state decisions

 Note the contrast in this case, which deals with appellate jurisdiction, and Marbury,
which came down to a determination about original jurisdiction

o If the Supreme Court could not review decisions from the highest State court, the State courts
would be excluded from ever hearing a case in any way involving a Federal question, because
the Supreme Court would be deprived of appellate jurisdiction in those cases

 Thus, because it was established that the States had the power to rule on Federal issues
it must be true that the Supreme Court can review the decision or the Supreme Court
would not have appellate jurisdiction in "all other cases"

 Furthermore, the Supremacy Clause declares that the Federal interpretation will trump
the States interpretation

o Story then confronted the arguments that State Judges were bound to uphold the Constitution
just as Federal judges were, and so denying state interpretations presumed that the State
Judges would less than faithfully interpret the Constitution

 Story countered that even if State Judges were not biased, the issue was not bias but
uniformity in Federal law

 Furthermore, the legislative power to remove a case to Federal court would be

inadequate for maintaining this uniformity

o Finally, Story applied these principles of judicial review to the decisions below and found that
the state court's decision was in error

Rationale: The Court rejected the claim that Virginia and the national government were equal sovereigns.
Reasoning from the Constitution, Justice Story affirmed the Court's power to override state courts to secure
a uniform system of law and to fulfill the mandate of the Supremacy Clause.


• Purposes: the purposes behind separation of powers and checks and balances generally identified by
courts and commentators are (1) prevention of tyranny and (2) efficiency of administration

o Prevention of tyranny: separation of powers facilitates the rule of law since difference entities
make, administer, and apply the law; check and balances, as well as the separation of powers,
in the Constitution have also been viewed as tools for limiting the size and power of the federal
gov’t, since a broad consensus is required to change the status quo

o Efficiency: the framers sought to establish a strong executive to conduct foreign affairs and
military matter more effectively

• Approaches: two dominant modes of analyzing separation of powers issues under the Constitution

o Formalism: demands adherence by each branch to the powers granted to that

branchCongress can make laws only if it follows specified procedures; it may not enforce the
laws it makesconversely, the President enforces laws but may not make them

o Functionalism: commands fidelity to the purposes of the distribution of powersConstitution’s

distribution of powers is violated only if one branch increases its power at the expense of
another branch

o More generally, the formalist takes separation of powers as a command of the Constitution’s
text and structure; the functionalist views such separation as a component of fulfilling the
Constitution’s goals

• Article II: created the executive branch of the US government

o §1: created the President and Vice President

o §2: Presidential powers

o §3: Presidential responsibilities

o §4: impeachment

• Miscellaneous…

o Political questiona balance of powers issue that says the political branches should decide
these issues, not the courts

o Ashcroft v. IqbalArab cable guy filed civil suit for damages b/c he got beat up for being
Muslim after being detained after the 9/11 attacks

 Court said you have to show facts in your petition

 Iqbal decision says you have to have concrete, plausible facts at the outset

 Held that top government officials were not liable for the actions of their subordinates
absent evidence that they ordered the allegedly discriminatory activity

 Allowed courts to protect themselves even when other doctrines don’t apply

• Office of the President was a real innovation

o Involved a true leap of faith by the American peoplewhen you talk about a central executive,
people back then thought of George III trying to fuck with them

o George Washington was the key for American people to accepting the president

• Article II, Sec. 1

o Cl. 1: “The Executive Power shall be vested in a President of the United States of America.”

 Establishes President and Vice President and that they shall have 4 year terms

o Cl. 2-4: elections

o Cl. 5: qualifications for officenatural born citizen, >35 years old

o Cl. 8: oath of office

• Article II, Sec. 2

o Cl. 1: The President shall be Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the actual Service of the United States

o Cl. 2: power to make treaties, appoint ambassadors, judges of the Supreme Court, and all other
officers of the US

o Cl. 3: recess appointmentsCongress goes home, President fill the vacancies

• Article II, Sec. 3

o Cl. 1: state of the unionpresident recommends things to Congress that he thinks are important
and expedient

 Presidents do the State of the Union b/c it projects power and shows they are more
powerful that Congress

o Cl. 2: may convene both or either houses, and adjourn them when he decides

o Cl. 4: President must "take care that the laws be faithfully executed."

 In Mississippi v. Johnson (1867), the Supreme Court ruled that the judiciary may not
restrain the President in the execution of laws

• Thus, the courts cannot bar the passage of a law by Congress, though it may
strike down such a law as unconstitutional; a similar construction applies to the
executive branch

 This is an extremely important line

 President uses this to justify many decisions, such as asking for money

• Article II, Sec. 4

o “The President, Vice President and all civil Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and

o Bill Clinton was impeached for “high crimes and misdemeanors” = Monica Lewinski

o Impeachment has become a farce after Clinton

• Office of the President that Amar talks about was to embody the democratic US, not to resemble

• These rules were not violated until FDR, who served 4 termsGW could have won a 3rd term, but he
stepped down and let Adams serve; Jefferson also stepped down after 2

• Amar says the importance of the Articles of Confederation and King of England are negative examples

o Electoral college was a response to slavery3/5 compromise

o Direct elections would have made slave states way less powerful


• Deals with authority problems that arise between the Executive and Legislative branches

• Certain things play import roles in the outcomes of these separation of powers cases

o One consideration is whether the context is that of domestic or foreign affairs

o The following case (Clinton) deals with domestic affairs

o The next case (Dames) deals with foreign affairs

• Youngstown Sheet & Tube Co. v. Sawyer (1952): limited the power of the President to seize private
property in the absence of either specifically enumerated authority under Article II or statutory
authority conferred by Congress

o 3 prong test:

 President and Congress in agreementstrong presumption that President’s actions are


 Congress silenthard to say; Court may look at practice, as they do in Dames (below)

 President and Congress disagreemaybe President has overstepped his authority;

President has burden to prove he has not

• As we will learn, presidential powers are not actually limited to the enumerated powers in Art. II

o Presidents have much more broadly interpreted inherent power, unlike the limits on the
federal/state gov’ts we discussed before

 Law must be “faithfully executed”

 Oath to preserve and protect the US Constitution

o There are certain areas where the President has specific authority (foreign affairs, war powers)

Clinton v. City of New York (1998)

Facts: This case consolidates two separate challenges to the constitutionality of two cancellations, made
by President Clinton, under the Line Item Veto Act. In the first, the City of New York, two hospital
associations, a hospital, and two health care unions, challenged the President's cancellation of a provision
in the Balanced Budget Act of 1997 which relinquished the Federal Government's ability to recoup nearly
$2.6 billion in taxes levied against Medicaid providers by the State of New York. In the second, the Snake
River farmer's cooperative and one of its individual members challenged the President's cancellation of a
provision of the Taxpayer Relief Act of 1997, which permitted some food refiners and processors to defer
recognition of their capital gains in exchange for selling their stock to eligible farmers' cooperatives. After
a district court held the Act unconstitutional, the Supreme Court granted certiorari on expedited appeal.

Issue: Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto
Act, violate the Presentment Clause of Article I?

Holding: Yes.

• This is a Balance of Powers case

o The real issue is whether Congress has the power to expand the power of the President

o Court said no, b/c the expansion violates the Constitution (Presentment Clause)

• 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 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

• Line-item veto: vetoing certain parts of a bill, not the whole thingthis power was not granted by the
constitution, but the Act gives the president this powergives President final say; doesn’t go back to
Congress if he vetoes certain lines, only if he vetoes the whole bill

o A matter of balance of powers and intersection of powers

o Question is whether the president can use the line-item veto, or whether the constitution
constrains the president from taking this power away from Congress

• The Line Item Veto Act of 1996 allowed the President to "cancel", that is to void or legally nullify,
certain provisions of appropriations bills, and disallowed the use of funds from canceled provisions for
offsetting deficit spending in other areas

• Presentment Clause (Art. 1, §7, Cls. 2-3): outlines how bills originating in Congress become federal
lawsthe process of Congress approving a bill and passing it along to the PresidentCongress must
approve the bill, then it is “presented” to the President

• Conflict here is whether the president is vetoing legislation, or amending legislation by engaging in the
line-item veto (infringing upon the powers specifically granted to Congress in Art. I)

• Background:

o The 1994 federal midterm elections signaled a sea-change in American politics known as the
Republican Revolution, with the Republican Party wresting control of both houses of the U.S.
Congress from Democrats. Key to that revolution was the Republicans' Contract with America,
which included a list of actions they promised to take if they gained control of Congress. Among
this list was the Line Item Veto Act itself, one of two provisions designed to ensure
Congressional fiscal conservatism. The Act was the only provision of the "Contract with
America" that then-President Bill Clinton supported.
o Prior to this case, members of Congress initially filed suit saying the Act was unconstitutional.
Federal Courts found that the congressmen lacked “standing,” i.e., they had no damages upon
which to bring such a claim.

o The City of New York and several organizations related to health care alleged injury from
President Clinton's cancellation of certain provisions of the Balanced Budget Act of 1997 that
eliminated certain liabilities, and Snake River Potato Growers, Inc. alleged injury from the
President's cancellation of certain provisions of the Taxpayer Relief Act of 1997 that gave tax
benefits to aid farmer's cooperatives in purchasing potato processing facilities.

o The District Court ruled for the plaintiffs, holding that the Line Item Veto Act was
unconstitutional. Because the Act established an expedited appeal process for challenges, the
case was directly appealed from the District Court to the Supreme Court.

• Justice Stevens’ majority opinion:

o Because the Act allowed the President to unilaterally amend or repeal parts of duly enacted
statutes by using line-item cancellations, it violated the Presentment Clause of the Constitution,
which outlines a specific practice for enacting a statute

o The Court construed the silence of the Constitution on the subject of such unilateral Presidential
action as equivalent to "an express prohibition,” agreeing with historical material that supported
the conclusion that statutes may only be enacted "in accord with a single, finely wrought and
exhaustively considered, procedure", and that a bill must be approved or rejected by the
President in its entirety

• Justice Kennedy, concurring:

o Objected to Breyer’s dissent argument that the Act did not violate principles of the separation of
powers and threaten individual liberty, stating that the "undeniable effects" of the Act were to
"enhance the President's power to reward one group and punish another, to help one set of
taxpayers and hurt another, to favor one State and ignore another"

o Kennedy's concurrence implicitly viewed the statute as a violation of the non-delegation

doctrineprinciple that the Congress of the United States, being vested with "all legislative
powers" by Article One, Section 1 of the United States Constitution, cannot delegate that power
to anyone else

o Congress legislated away something it didn’t have the authority to legislate away

o By giving power to the executive, the Act violates the balance of powers prescribed by the

• Justice Scalia, concurring in part, dissenting in part:

o Must keep the judiciary’s power within its proper constitutional sphere

o If the Act had merely invited the President to decline to spend, the Court would have upheld it

o Wants to let the political branches make these decisions themselves, w/o the Court in the
middle, b/c there’s no constitutional issue to be decided hereatypical of Scalia to enhance
presidential power at the expense of Congress

• Justice Breyer, dissenting:

o Contended that the objective of the Act was constitutionally proper and was consistent with
powers that the President has held in the past, stating that the Act "does not violate any specific
textual constitutional command, nor does it violate any implicit Separation of Powers principle"

o He extensively refers to many different cases which support the delegation of power by the
Congress, and primarily suggests that the Act is an efficient means by which a constitutionally
legitimate end may be achieved

• 3 different viewpoints among the justicessome thought this case was about the authority of the
president, some thought it was about the authority of Congress, others about the job of the Court

Rationale: In a 6-to-3 decision the Court first established that both the City of New York, and its affiliates,
and the farmers' cooperative suffered sufficiently immediate and concrete injuries to sustain their standing
to challenge the President's actions. The Court then explained that under the Presentment Clause,
legislation that passes both Houses of Congress must either be entirely approved (signed) or
rejected (vetoed) by the President. The Court held that by canceling only selected portions of the bills
at issue, under authority granted him by the Line Item Veto Act, the President in effect "amended" the
laws before him. Such discretion, the Court concluded, violated the "finely wrought" legislative procedures
of Article I as envisioned by the Framers.

Dellinger Memo (1993)

• Deals with signing statementswritten pronouncements by the President upon signing a bill

• Ronald Reagan used these, and his attorney general made these even more important by having West
publish these signing statements so they would have more affectknew that lawyers would state
citing these statements if they helped their case

• There is no constitutional provision that explicitly permits or prohibits signing statements

• (1) Signing statements are supposed to tell the public what the president thinks will be the likely
results of this billexplanation to the public

• (2) Directing subordinate officers on how to administer the stipulations of the bill

o President has the constitutional authority to supervise and control the activity of subordinate
officials within the executive branch

o Bowsherinterpreting a law enacted by Congress to implement the legislative mandate is the

very essence of “execution” of the law

o Such statements have the effect of binding the statutory interpretation of other executive
branch officials

o Controversial b/c regulations should be consistent with the intent of congress, but a signing
statement can say the president interprets the bill differently than congress had anticipated

• (3) Saying that the bill would be unconstitutional in certain applications, and in such cases, the
executive would not enforce the statute to the extent he believes it’s unconstitutional

o Controversial b/c this means the president is signing a bill that may be unconstitutional

o Does this mean the president is violating his oath, or does it mean the signing statement is
making it ok?
o Does the president have a role in constitutional interpretation?

o Hill thinks it’s the president’s duty to veto a bill entirely if it is facially unconstitutional

• Signing statement is starting to look like a line-item vetoDellinger asks why president can use signing
statements but Congress can’t allow him to use line-item veto

• Dellinger is particularly upset over the use of signing statements as authority for deciding cases used
by courts in their interpretation of a bill

Executive Orders

• More direct assertion of presidential power

o Based on Art. IIidea that president has authority, takes on the force of regulation

• The Emancipation Proclamation was an executive order executed by Lincoln

• Truman integrated the armed forces in an executive order

• Truman also tried to take control of the steel mills to prevent a strike via an executive order
(Youngstown case)

• Not sure if executive orders expire when a president’s term expires

Dames & Moore v. Regan (1981)

Facts: In reaction to the seizure of the U.S. embassy and American nationals in Iran, President Jimmy
Carter invoked the International Emergency Economic Powers Act (IEEPA) and froze Iranian assets in the
United States. When the hostages were released in 1981, Treasury Secretary Donald Regan affirmed the
agreements made by the Carter administration that terminated all legal proceedings against the Iranian
government and created an independent Claims Tribunal (claims now handled by arbitration). Dames &
Moore attempted to recover over $3 million owed to it by the Iranian government and claimed the
executive orders were beyond the scope of presidential power.

Issue: Did the president have the authority to nullify legal claims against Iran?

Holding: Yes. Executive orders dissolving judgments and suspending pending civil claims against Iranian
government were constitutional.

• Background: This case was in response to President Jimmy Carter's Executive Order 12170, which froze
Iranian assets in the United States on November 14, 1979 in response to the Iran hostage crisis which
began on November 4, 1979. After the inauguration of Ronald Reagan on January 20, 1981, the Reagan
Administration agreed with Iran to terminate legal proceedings in U.S. courts involving claims by U.S.
nationals against Iran and to transfer such claims from U.S. courts to a newly created arbitration
tribunal. These agreements were implemented by executive orders.
• Where did Carter and Reagan think they got the power to do these things?
o Sec. 2, Cl. 1: Commander and Chief of the militia (war powers); power to enter into treaties (but
this isn’t a treaty, it’s an agreement)where is the President’s foreign policy power?
 Could be an extension of the war powers
 Congress is responsible for conducting foreign commerce
• Justice Rehnquist’s opinion:
o The Supreme Court upheld these actions by Donald Regan, Treasury Secretary in the Reagan
Administration, finding that these presidential actions were authorized by law by the
International Emergency Economic Powers Act (IEEPA)
o The Supreme Court also approved the suspension of claims filed in U.S. courts even though no
specific statutory provision authorized that stepallowed the nullification of the claims, which
seems quite radical since this was provided for anywhere in IEEPA
o In so doing the Court relied on inferences drawn from related legislation, a history of
congressional acquiescence in executive claims settlement practices, and past decisions
recognizing broad executive authority
• Court finds a rationale for congressional approval
o Implicit approval based on the prior history
o If we don’t think a president’s actions are constitutional, they should be expressly stopped;
otherwise, subsequent presidents will rely on thisHill says this is the problem w/ this decision
• The idea of the implicit approval of a practice, and the idea that it was an emergency, broadens
executive powergives the president a tool to use with executive orders
• The Court emphasized the narrowness of this decision, but it doesn’t really matter b/c this was huge
o Court invokes the idea of an emergency hereIran situation was heating up
• Is this saying emergency powers broaden the executive power? Is this similar to the necessary and
proper clause?
• This decision has been criticized for applying a too lenient standard to the question of
presidential power, in particular by relying on inferences from statutes that do not directly deal with
certain subjects at hand and, especially, on legislative acquiescence in executive activity. On any view,
this decision is an important recognition of broad presidential power in foreign relations.
o Many have held this decision inconsistent with the holding Youngstown
o Dames & Moore seems to apply the concurrent holdings of Jackson & Frankfurter over the
holding of Justice Black in Youngstown
o Hill says this case reads like the Youngstown dissent
• Some concerns: (1) Executive agreements are seen as an encroachment on the Congress’s power
to make treaties. (2) If Executive agreements are the legal equivalent of treaties, then they could
potentially supersede previous legislation. This would in essence allow the President to make law
and strike down laws duly enacted by Congress.
• President’s actions were authorized by IEEPA
o Falls under Youngstown 1st categoryPresident and Congress in agreement, so there is a heavy
presumption that the executive order is valid
• IEEPA doesn’t mention termination of litigation/arbitration
o Falls under Youngstown 2nd categoryCongress is silent
o Look to practiceCongress has not been a persistent objector; President has done this in the
past and Congress has acquiescedimplicit consent
• ***This is the 1st time we see a President shaping the jurisdiction of a court***

Rationale: The Court held that the IEEPA 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. The Court emphasized the narrowness of its ruling,
limiting the decision to the facts of the case.

Medellin v. Texas (2008)

Facts: Medellin, a Mexican national, was convicted and sentenced to death for participating in the gang
rape and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that
the state had violated his rights under the Vienna Convention. Article 36 of the Vienna Convention gives
any foreign national detained for a crime the right to contact his consulate. After his petition was
ultimately dismissed by the Supreme Court, Medellin's case returned to the Texas Court of Criminal
Appeals. Medellin's argument rested in part on a ruling of the International Court of Justice, holding that
the U.S. had violated the Vienna Convention rights of 51 Mexican nationals (including Medellin) and that
their convictions must be reconsidered. 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

Procedural Posture: The Texas Court of Criminal Appeals rejected each of Medellin's arguments and
dismissed his petition. The court interpreted Sanchez-Llamas as standing for the principle that rulings of
the ICJ are not binding on state courts. The Texas court stood by its position that allowing Medellin to raise
the Vienna Convention issue after his trial would violate state procedural rules, and that those rules were
not supplanted by the Convention. The President had no authority to order the enforcement in state court
of an ICJ ruling, because that would imply a law-making power not allocated to him by the Constitution.

Issues: (1) 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 ICJ? (2) Does the Constitution require state courts to honor the treaty obligation
of the U.S. by enforcing a decision of the ICJ?

Holdings: No. No.

• Held that while an international treaty may constitute an international commitment, it is not binding
domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is
"self-executing"; that decisions of the ICJ are not binding domestic law; and that, absent an act of
Congress or Constitutional authority, the President of the United States lacks the power to enforce
international treaties or decisions of the ICJ

• “Self-executing”anything that is effective immediately without the need of intervening court action,
ancillary legislation, or other type of implementing action

o In this case, whether the ICJ was immediately effective or if further court interpretation was

• Justice Roberts’ opinion:

o A treaty is not binding domestic law unless Congress has enacted statutes implementing it or
the treaty itself conveys an intention that it is "self-executing." None of the relevant treaties—
the Optional Protocol, the U.N. Charter, or the ICJ Statute—were self-executing, and no
implementing legislation had been enacted

o The Court also rejected Medellín's claim that Article 94 of the U.N. Charter requires the United
States to "undertake to comply" with the ICJ ruling. Chief Justice Roberts observed that Article
94(2) of the Charter provides for explicit enforcement for noncompliance by referral to the
United Nations Security Council, and for appeals to be made only by the aggrieved state (not an
individual such as Medellín). The majority also held that the ICJ statute contained in the U.N.
Charter also forbade individuals from being parties to suits before the International Court. The
ICJ statute is a pact between nations, Justice Roberts said, and only nations (not individuals)
may seek its judgment.

o The Court also rejected Medellín's argument that the President's February 28, 2005
Memorandum was binding on state courts. The Court relied on Youngstown, recognizing that
"plainly compelling interests" were at stake in the Medellín case. Yet:

 “Such considerations, however, do not allow us to set aside first principles. The
President's authority to act, as with the exercise of any governmental power, 'must stem
either from an act of Congress or from the Constitution itself.”
o The majority concluded that neither condition had been met. Neither the government nor the
defendant had cited any statutory authority which authorized the President to act. Instead, the
President claimed that the Optional Protocol and U.N. Charter implicitly gave him the authority
to act. The Court disagreed: "The President has an array of political and diplomatic means
available to enforce international obligations, but unilaterally converting a non-self-executing
treaty into a self-executing one is not among them."

o The government had also claimed that the Memorandum was an exercise of the President's
authority to resolve international claims under his executive authority. The Court recognized
that this was a long-standing practice "never-before questioned." But relying on Dames, the
Court observed that "past practice does not, by itself, create power." Prior uses of executive
authority to settle international disputes all occurred in narrow circumstances, and did not
involve the complete setting aside of state law, as the defendant sought in the present case.

• Justice Stevens, concurring:

o Stated that even though he concurs with the result of majority he thinks "this case presents a
closer question than the Court's opinion allows”

o He concludes that the Supreme Court cannot enforce the ICJ opinion in Avena

 To support that conclusion he maintains that "terms of the United Nations Charter do not
necessarily incorporate international judgments into domestic law”

• Justice Breyer, dissenting:

o In his view, the ICJ treaty was "self-executing", based on a reading of other treaties that had
gone into effect without additional Congressional action; and therefore, he wrote, "I believe the
treaty obligations, and hence the judgment of the ICJ, resting as it does upon the consent of the
United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the federal

o Breyer cited the 1796 case Ware v. Hylton, which, Breyer wrote, was illustrative of what "the
Founders meant when they wrote [in the Supremacy Clause of the United States Constitution]
that 'all Treaties ... shall be the supreme Law of the Land.'"

Rationale: The Court upheld the rulings of the Texas Court of Criminal Appeals. 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.

Executive Privileges and Immunities

• Powers enable the President to engage in particular tasks

• Privileges shield the President from inquiries concerning whether particular actions taken were lawful
or not

• In the presidential powers cases, the Court was a referee between the President and Congress

• Can the same be said of cases where the Court evaluates the President’s claim that he may not be
reached by judicial processes?

United States v. Nixon (1974)

Facts: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the
Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of
conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the
subpoena claiming "executive privilege," which is the right to withhold information from other
government branches to preserve confidential communications within the executive branch or
to secure the national interest.

Issue: Is the President's right to safeguard certain information, using his "executive privilege"
confidentiality power, entirely immune from judicial review?

Holding: No. The Supreme Court has the final voice in determining constitutional questions; no person,
not even the President of the United States, is completely above the law; and the president cannot use
executive privilege as an excuse to withhold evidence that is “demonstrably relevant in a criminal trial.”

• This case is considered crucial precedent limiting the power of the President

• Intersection of Powers: Executive vs. Judiciary

o Constitution does not have any explicit reference to a privilege of confidentiality, but to the
extent this interest relates to the effective discharge of a President’s powers, it is
constitutionally based

• Background: The Watergate Scandal occurred during the 1972 Presidential election. Nixon appointed
Archibald Cox to the position of special prosecutor, charged with investigating the break-in, but then
fired Cox in the Saturday Night Massacre. However, public outrage forced Nixon to appoint a new
special prosecutor, Leon Jaworski, who was charged with conducting the Watergate investigation for
the government.In April 1974, Jaworski obtained a subpoena ordering Nixon to release certain tapes
and papers related to specific meetings between the President and those indicted by the grand jury.
Those tapes and the conversations they revealed were believed to contain damaging evidence
involving the indicted men and perhaps the President himself. Hoping Jaworski and the public would be
satisfied, Nixon turned over edited transcripts of forty-three conversations, including portions of twenty
conversations demanded by the subpoena. James D. St. Clair, Nixon's attorney, then requested Judge
John Sirica of the U.S. District Court for the District of Columbia to quash the subpoena. The District
Court denied the motion and ordered Nixon to turn over the tapes. Both St. Clair and Jaworski appealed
directly to the Supreme Court. St. Clair claimed Nixon had an absolute executive privilege to protect
communications "between high Government officials and those who advise and assist them" in
carrying out their duties.

• Nixon said producing the tapes infringed upon his need for candid advice from his advisors

• Case looks at whether the president has an absolute privilege which can be invoked in these
circumstances “executive immunity”

• Court says they going to weigh the need of confidential advice against the need to do justice

• The Court rejected Nixon's claim to "an absolute, unqualified Presidential privilege of immunity from
judicial process under all circumstances"

o When the 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 law in the fair administration of justice

o In applying the balance test, Presidential communications are indeed protected generally, but in
the instance of a criminal case, the protection cannot remain, for it would "cut deep into the
guarantee of due process law and gravely impair the basic function of the courts."

Rationale: The Court held that neither the doctrine of separation of powers, nor the generalized need for
confidentiality of high-level communications, without more, can sustain an absolute, unqualified,
presidential privilege. The Court granted that there was a limited executive privilege in areas of military or
diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair
administration of justice." Therefore, the president must obey the subpoena and produce the tapes and
documents. Nixon resigned shortly after the release of the tapes.

Clinton v. Jones (1997)

Facts: Paula Jones sued President Bill Clinton alleging that while she was an Arkansas state employee, she
suffered several 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 8th Circuit affirmed the dismissal denial but reversed the trial deferment ruling
since it would be a "functional equivalent" to an unlawful grant of temporary presidential immunity.

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?

Holding: No.

• Balance of PowersPresident wants immunity so he can do his duty as Presidentdoesn’t want

Judiciary to interfere with his duties to the Executive

• Intersection of Powers: Executive/JudiciaryPresident does not have the authority to require the
courts to defer prosecution of civil claims until he leaves office

• Jones is saying she should have the same right to go to court just like every other citizen, but Clinton
says he’s immune from this suit

o Clinton wants the judgment deferred until he’s out of office so there’s no political damage

o Says this litigation will be a burden on his ability to perform his duties as President (executive)

o There is also a balance of powers claimjudiciary allowing this suit would burden the executive

• Established that a sitting President of the United States has no immunity from civil law litigation
against him, for acts done before taking office and unrelated to the office

• Justice Stevens’ opinion:

o Court ruled that separation of powers does not mandate that federal courts delay all private civil
lawsuits against the President until the end of his term of office

o " appears to us highly unlikely to occupy any substantial amount of petitioner's time”

• Justice Breyer, concurring:

o Argued that presidential immunity would apply only if the President could show that a private
civil lawsuit would somehow interfere with the President's constitutionally assigned duties

• Aftermath: On April 1, 1998, U.S. District Court Judge Susan Webber Wright granted summary
judgment to Clinton in Jones v. Clinton. A witness in Jones v. Clinton, Monica Lewinsky, denied having
engaged in a sexual relationship with Clinton. A Lewinsky friend, Linda Tripp, had recorded
conversations where Lewinsky discussed her affair with Clinton. Tripp then turned the tapes over to
Kenneth Starr, an independent counsel investigating Clinton's misconduct in office. The revelations
from these tapes became known as the Lewinsky scandal. In the Court's opinion in Clinton v. Jones,
Stevens had written, " appears to us highly unlikely to occupy any substantial amount of petitioner's
time." The Supreme Court's ruling in Clinton v. Jones led to the District Court's hearing of Jones v.
Clinton, which led to the Lewinsky scandal, when Clinton was asked under oath about other workplace
relationships, which led to charges of perjury and obstruction of justice and the impeachment of Bill

• We’ll never know the truth, b/c Jones got a financial settlement

• Which principle is more important: the idea of the efficiency of the presidency…or the idea that we as
Americans are equal with regards to the law???

• Like US v. Nixon, this case also limits the powers and authority of the Executive power

• Hillthis holding could really disrupt a future President’s attention with multiple lawsuitslots of
lawsuits like this could cripple a presidency; however, this is problematic, because Jones is entitled to
her day in court – so there is a conflict of interests

Rationale: 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. 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 President.

Legislative Authority: Delegation

• Non-delegation doctrine: the principle that Congress, being vested with "all legislative powers" by
Article 1, Section 1 of the Constitution, cannot delegate that power to anyone else

• Until the New Deal era, it was generally assumed that Congress could not delegate lawmaking
functions other than by establishing an “intelligible principle” by which others administering the law
would thereafter be guided

• Since 1935, the Supreme Court has approved statutes commanding agencies to act “in the public
interest” (thus delegating to these agencies)

• If the Court were to revive the non-delegation doctrine, Congress would either have to leave more
private activity unregulated or work much harder to specify more precise standards to cover the same
territory as one broad standard

• A consequence of the demise of the non-delegation doctrine has been Congress’ search for ways to
control the President and agencies to whom broad authority is delegated

INS v. Chadha (1983)

Facts: In one section of the Immigration and Nationality Act, Congress authorized either House of
Congress to invalidate and suspend deportation rulings of the United States Attorney General. Chadha was
born in Kenya to Indian parents, but neither Kenya nor India recognized him as a legitimate citizen or
resident; instead, he held a British passport. He traveled to Ohio as a foreign exchange student; after his
nonimmigrant student visa expired, neither Kenya nor India would accept him onto its territory. Though
Chadha conceded that he was deportable, an immigration judge suspended his deportation. The House of
Representatives voted without debate or recorded vote to deport Chadha.

Issue: Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions,
violate the separation of powers doctrine?

Holding: Yes. The one-house legislative veto violated the constitutional separation of powers. The
Congress cannot control the execution of its laws; since it doesn’t possess this power, it can’t delegate it to
its agents. Thus, the Act is unconstitutional.

• Legislative Veto

o When Congress exercises legislative power itself the Court has insisted that Congress adhere
strictly to the letter of the Constitution.

o This means that any action by Congress must meet the requirements of bicameralism and
presentment set forth in Art I, §7.

 Bicameralism: mandates that a legislative act of Congress must be approved by both

the House and the Senate.

 Presentment: requires that before any measure approved by the House and Senate can
become law, it must be presented for approval to the President; if the Pres vetoes the
measure it may become law only if it is re-passed by a 2/3rds majority in each House of

o A legislative veto provision, which allows either or both Houses to disapprove action taken by
the executive branch, will normally violate one or both of these requirements.

• Good example of the formalist viewfocused on the few constraints created by the text of the

• § 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), authorized the INS to suspend
deportation of aliens continually resident in the United States for at least seven years where the
Attorney General, in his discretion, found that "deportation would . . . result in extreme hardship." After
such a finding by the Attorney General, a report would be transmitted to Congress pursuant to § 244(c)
(1), and either house of Congress had the power to veto the Attorney General's determination pursuant
to § 244(c)(2).

• Background: The INS initiated deportation proceedings against Chadha. Chadha sought to suspend his
deportation, and the INS accommodated his request pursuant to § 244(a)(1), and transmitted a report
of the suspension to Congress pursuant to § 244(c)(2). The House of Representatives vetoed the
suspension of Chadha's deportation, and the INS subsequently resumed deportation proceedings. The
immigration judge declined to exercise jurisdiction over the constitutional objections of Chadha, and
ordered him deported. Chadha then appealed to the Board of Immigration Appeals, which dismissed his
constitutional objections. Chadha and the INS, which now supported his challenge to the
constitutionality of § 244(c)(2), then appealed to the Court of Appeals for the Ninth Circuit, which
rendered judgment in his favor and ordered the suspension of deportation proceedings.

• Congress argued as follows: (1) Chadha lacks standing to challenge the constitutionality of § 244(c)(2)
because that section is not severable from § 244(a)(1). Therefore, if Chadha were to succeed in
invalidating § 244(c)(2), his means of remedy in § 244(a)(1) will also be destroyed, and there will be no
relief possible. (2) The Court does not have jurisdiction over the issue because the Attorney General
and INS enforced the challenged statute and thereby effectively waived their right to challenge it. (3)
The action is not a genuine case or controversy, as both the original plaintiff and defendant challenge
the statute without real opposition. (4) The action is a non-judicable political question.

• Chief Justice Burger’s opinion:

o The Court rebutted Congress's assertions as follows: (1) § 244(c)(2) of the Immigration and
Nationality Act is severable from the rest of the act pursuant to the express severability clause §
406. The legislative history of §244 supports the proposition that Congress, frustrated with the
process of passing private laws to provide relief for deportable individuals, would likely not have
been willing to retain the private law mechanism rather than ceding all power to the Attorney

o (2) The Attorney General and INS did not waive their right to challenge the constitutionality of
the statute by enforcing the statute.

o (3) The action is a genuine case with adequate representation in favor of sustaining the act
provided by the houses of Congress as amici curiae.

o (4) The case is a judicable question, not exempted by the political question doctrine; the
constitutionality of a statute is a question for the courts.

o The Court then presented its affirmative reasoning: (5) When the Constitution provides express
procedures, such procedures must be strictly observed. Two such provisions are bicameralism
and presentment in the enactment of law.

o (6) The presentment process—especially the President's veto power—was intended by the
Framers to provide a mechanism by which the executive branch could defend itself against
legislative encroachment and could prevent ill-conceived policies.

o (7) Similarly, the bicameralism requirement was formulated in order to hinder congressional
action and thereby prevent legislative encroachment.

o (8) The action of the House of Representatives is legislative in nature because (a) it modifies
rights and duties of individuals outside the legislative branch; (b) the enactment would
otherwise have required a private law, which is a legislative function; and (c) the nature of the
action is inherently legislative.

o (9) When the Framers intended to authorize Congress to exercise power outside of the
bicameral and presentment principles, it provided alternate procedures explicitly; other
procedures cannot be admitted.

o (10) Because the action of the House of Representatives was legislative, but did not
conform to the mode of action specifically stated by the Constitution for legislative
action, it is therefore invalid, unenforceable, and not binding.

• The Court held that Congress may not promulgate a statute granting to itself a legislative veto over
actions of the executive branch consistent with the bicameralism principle and Presentment Clause of
the United States Constitution

o The Supreme Court held that the resolution of the House of Representatives vetoing the
Attorney General's determination is constitutionally invalid, unenforceable, and not binding

• Justice Powell, concurring:

o Argued that to invalidate all legislative veto provisions is a serious matter, as Congress views
the legislative veto as essential to controlling the executive branch, and should therefore be
undertaken with caution.

o However, Congress's action in this case is nonetheless unconstitutional. Contrary to the views of
the majority, Congress's action is not legislative in character but adjudicative, and it therefore
violates the principle (called the anti-aggrandizement principle) that Congress may not expand
its own power into the areas of competence of the other branches.

o The Constitution specifically attempted to prevent this form of aggrandizement in the Bill of
Attainder Clause, Art. I, § 9, cl. 3, which prohibits Congress from undertaking legislative trials
that lack the safeguards and accountability of judicial trials. For a house of Congress to force the
deportation of Chadha would amount to such a legislative trial.

• Justice White, dissenting:

o (1) The legislative veto power is absolutely necessary to modern government.

o (2) The absence of constitutional provisions for alternate methods of action does not imply their
prohibition by the Constitution, and the Court has consistently read the Constitution to
respond to contemporary needs with flexibility.

o (3) The legislative veto power does not involve the ability of Congress to enact new legislation
without bicameral consensus or presentation to the president, but instead involves the ability of
Congress to veto suggestions by the executive, a power that both houses of Congress already

o (4) Further, the Court has allowed Congress to delegate authority to executive agencies;
therefore, lawmaking does not always require bicameralism or presentation.

o (5) Finally, the bicameralism and presentation provisions of the Constitution serve to ensure
that no departure from the status quo takes place without consensus from both houses of
Congress and the President, or a super-majority of both houses of Congress. In this case, the
deportation of Chadha is the status quo situation, and the veto by House of Representatives of
an alternate suggestion of the executive branch is perfectly reasonable given the purposes of
bicameralism and the Presentment Clause.

o Compare this dissent by White with his dissent in Bowsherboth appear functionalistic

• Policy question: Someone comes into your office with a separation of powers issue about what
mechanisms can be used. Need to be able to identify the cases that apply and the rationales.

• Legislative vetoes did not generally disappear after Chadha, but continued to be enacted, although the
various presidents have issued executive signing statements disclaiming the unconstitutional
legislative veto provisions

Rationale: The Court held that the particular section of the Act in question did violate the Constitution.
Recounting the debates of the Constitutional Convention over issues of bicameralism and separation of
powers, Chief Justice Burger concluded that even though the Act would have enhanced
governmental efficiency, it violated the "explicit constitutional standards" regarding
lawmaking and congressional (legislative) authority.

Bowsher v. Synar (1986)

Facts: Due to rising government budget deficits during the first term of the Reagan Administration,
Congress passed the Gramm-Rudman-Hollings Deficit Control Act of 1985. The act was designed to
eliminate the federal budget deficit by restricting spending during fiscal years 1986 through 1991. Under
the law, if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the
Comptroller General, would go into effect.

Issue: Did the functions assigned (delegated) by Congress to the Comptroller General of the United States
under the Gramm-Rudman-Hollings Deficit Control Act of 1985 violate the doctrine of separation of

Holding: Yes.

• Separation of powers: CG, acting under the delegation of the Legislative branch, is executing the
law, which is a job reserved for the Executive branch

• Claim here is that maybe the federal gov’t can do this, but they can’t do it by this mechanism

• Justice Stevens and Justice Marshall concurring:

o Labeling of powers as legislative vs. executive is not the issue

o What matters is that the CG will make decisions that have the force of law, and only Congress
can do this

• Justice White, dissenting:

o Big picture is captured in the dissent by Justice White

 Compare White’s dissent here with his dissent in Chadha

o Said this was a “distressingly formalistic view of separation of powers”

o Court here isn’t being practicalrigid dogmas are getting in the way of how the gov’t can
effectively operate in contemporary times

o US became a more centralized, administrative state after WWIIcan’t turn the clock back

o Determining the level of spending by the federal government is a legislative function, not an
executive one, he argued

o Even if the power were “executive,” White did not see anything wrong with delegating that
power to an agent as long as Congress can only influence him by a means that is subject to the
Presentment and Bicameralism Clause requirements (which the act satisfied, since the CG can
only be influenced by Congress by a joint resolution)

o White also focused on a less formalistic approach to separation of powers questionseven “the
results of a constitutional legislative process may be unconstitutional if they are in fact
destructive of the scheme of separation of powers”

o The key question, White contended, is whether there is a real threat of “encroachment or
aggrandization of one branch at the expense of the other”this Act, White argued, didn't pose
such a threat

Rationale: The Court found that the duties which the Congress delegated to the Comptroller General
violated the doctrine of separation of powers and were unconstitutional. A two step process led Chief
Justice Burger to arrive at this conclusion. First, in exploring the statute defining the provisions of the
Comptroller General's office relating to the Congress's power of removal, it was clear to Burger that this
officer was subservient to the legislative branch. Second, in examining the functions that this officer would
carry out under the Deficit Control Act, Burger concluded that the Comptroller General was being asked to
execute the laws and, thus, was intruding on the prerogatives of the executive branch.

Morrison v. Olson (1988)

Facts: The Ethics in Government Act of 1978 created a special court and empowered (delegated) the
Attorney General to recommend to that court the appointment of an "independent counsel" to investigate
and prosecute government officials for certain violations of federal criminal laws.

Issue: Did the Act violate the constitutional principal of separation of powers?

Holding: No. The Court upheld the Independent Counsel provision of the Ethics in Government Act
because it did not violate the separation of powers by increasing the power of one branch at the expense
of another.

• Separation of Powers: Legislative/Executivewhether the Act increased the power of Congress at the
expense of the Executive branch (appointment power) b/c the Act created a special court (like a 4th
branch of gov’t)
• Background: The situation from which the case arose involved subpoenas from two subcommittees
from the United States House of Representatives directing the EPA to produce documents relating to
the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to
enforce the Superfund law. Ted Olson was the assistant Attorney General for the Office of Legal
Counsel. This led to an investigation by the House Judiciary Committee that later produced a report
suggesting Olson had given false and misleading testimony before a House subcommittee during the
investigation. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney
General with a request that he seek the appointment of an independent counsel to investigate the
allegations against Olson and two others. Olson attempted to argue that the independent
counsel took executive powers away from the office of the President of the United States
and created a hybrid "fourth branch" of government that was ultimately answerable to no
one. Independent Counsel Alexia Morrison in turn argued that her position was necessary in order to
prevent abuses of the executive branch, which historically operated in a closed environment.
• Question here is whether the provisions that allow for the AG’s rule in appointing, removing, and
terminating a counsel violates the President’s authority and separation of powers
• Court cites US v. Nixonadopts theory that the powers of gov’t will to some extent overlap sometimes
• This opinion is closer to a functionalist approach (Bowsher is formalist)
o Powers are not rigidly separated; some overlap is necessary for gov’t to function properly
• Justice Scalia, dissenting:
o He’s pissed, but he was the only dissenter
o The law had to be struck down b/c (1) criminal prosecution is an exercise of "purely executive
power" as guaranteed in the Constitution and (2) the law deprived the president of "exclusive
control" of that power
o Cites Art. 2, Sec. 2, Cl. 1the executive power
o Says it’s possible the Court doesn’t understand separation of powers
o The Constitution gives the president and the people more protection than this
o Arguing with White in Bowsher that it doesn’t matter that times have changed, we still must
follow the Constitution’s textformalist vs. functionalist view

Rationale: The Court addressed a number of constitutional issues in this case and upheld the law. The
near-unanimous Court (Scalia was the lone dissenter) held that the means of selecting the independent
counsel did not violate the Appointments Clause; the powers allocated to the special court did not violate
Article III; and the Act was not offensive to the separation of powers doctrine since it did not impermissibly
interfere with the functions of the Executive Branch.

The Framework for the Distribution of Powers

• This case came before the above cases on executive/presidential powersthink of the above decisions
in terms of the Youngstown decision

Youngstown Sheet & Tube Co. v. Sawyer (1952)

Facts: The Korean War effort increased the demand for steel. Disputes arose between steel industry
management and labor that culminated in an announcement of a strike by the union. President Truman
authorized Secretary of Commerce Sawyer to take possession of the steel industry and keep the mills

Issue: Does the President of the United States have executive power under the war powers clause of the
U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to
seize the nation’s steel mills?

Holding: No. The President did not have the inherent authority to seize private property in the absence
of either specifically enumerated authority under Article Two of the Constitution or statutory authority
conferred on him by Congress.

• What is the central concern of the Court in this case? What does this tell us about the balance of
powers issue?
• Separation of Powers: President may NOT make laws, he may only carry them out
• Background: Truman believed that a strike of any length would cause severe dislocations for defense
contractors and for the domestic economy as a whole. Unable to mediate the differences between the
union and the industry, Truman decided to seize their production facilities, while keeping the current
operating management of the companies in place to run the plants under federal direction. Truman
might have invoked (1) the national emergency provisions of the Taft-Hartley Act to prevent the union
from striking, rather than seizing the plants. The administration rejected that option, however, both
from a distaste for the Act, which had been passed over Truman's veto five years earlier, and because
the administration saw the industry, rather than the union, as the cause of the crisis. The
administration also rejected use of (2) the statutory procedure provided under Section 18 of the
Selective Service Act of 1948 that might have permitted seizure of the industry's steel plants on the
ground that compliance with this procedure was too time-consuming and the outcome of compliance
too uncertain. Truman chose not to go to Congress to obtain additional statutory authorization for a
seizure of the steel industry for the same reasons. That left invocation of the President's inherent
authority to act in response to a national emergency. The Steelworkers favored government
seizure of the plants under any available theory to a Taft-Hartley injunction against it; Arthur Goldberg,
General Counsel for the Steelworkers and the Congress of Industrial Organizations, argued that the
President had the inherent power to seize the plants, as well as the statutory authority under the
Selective Service Act and the Defense Production Act. The steel industry, on the other hand, appeared
to have been taken by surprise, as it had apparently assumed until shortly before Truman made his
announcement that he would take the less risky step of seeking a national emergency injunction under
the Taft-Hartley Act instead. The industry was ready to act once he announced the seizure by a
national television and radio broadcast.
• Executive Order: lists 7 things the Secretary of Commerce is authorized to do
o (1) to take possession of all steel mills
o (2) may act through or with the aid of such public or private instrumentalities or persons
o (3) determine terms and conditions of employment under which the mills shall operate
o (4) current management stays in place and operates the steel mills like normal

o (5) everything else stays in place with the mills; they keeping paying their bills, etc.
o (6) can stop running certain mills if they aren’t needed
o (7) may delegate his functions as he sees desirable
• President is justifying this on national security and an emergency situation
• Can a president base a domestic action on a circumstance arising from foreign power, and more
broadly, can a president use the excuse of emergency to do this?
• Steel mill management was worried that nationalizing the entire steel industry would drive up wages
(since the workers wanted to strike)they argued this encroached on legislative authority
• Government argues they have to do this because there is a “grave emergency”w/o steel we couldn’t
make weapons to stop the advance of communism
o Argue that the source of the President’s power to ensure steel is produced comes from his
power as the Commander in Chief of the Armed Forces of the USwar powers
o Comes from the aggregate of his constitutional powersif you add all of his powers in Art. 2, it
adds up to more than the sum of its individual parts
• Justice Black’s majority opinion:
o Justice Black wrote for the majority, although the number of divergent concurring opinions made
it clear that he did not necessarily speak for it
o Black took, as he often did, an absolutist view, holding that the President had no power to act
except in those cases expressly or implicitly authorized by the Constitution or an act of
o Under Taft-Harley Act, President had the ability to seize property to stop strikes
 Negative legislative historyCongress considered this in the TH Act, but decided against
 Thus, there is in fact no statutory authority for this actionmust turn to the Constitution
o Implied powerssame as inherent powers here
 Some construction of the aggregate of the Commander in Chiefs powers
 Order cannot be sustained as exercise of the military powers of the President
 “theatre of war”concept of a theatre of war is an expanding concept (still applicable
today with war on terrorism)concept of where hostilities are actually happening; Court
refused to say that the US was a “theatre of war”must be a place where opposing
forces are fighting each othertroops were in Korea, not here
o Executive power in general does not applyPresident can enforce the laws, but he can’t make
the laws (inherently limited)
 Constitution is neither silent nor equivocal about which laws the President may choose to
o Historical evidence of Presidential powersCourt says even if prior Presidents have seized
property in emergencies, Congress has not lost authority to make laws that may be necessary
and proper to govern the country in these situations
o Founders of this nation entrusted the power to make laws to Congress alone in both good and
bad times
o Justice Black seems to have a particular theory on how the government worksseparation of
powers President executes the laws, he doesn’t make them
• Justice Frankfurter concurring:
o Frankfurter avoided the sweeping condemnation of the administration's claims that Black and
Douglas had offered
 While he would not rule out the possibility that the President might acquire the power to
take certain actions by a long course of conduct unobjected to by Congress, he found the
statutory history persuasive evidence that Congress had not acquiesced, much less
authorized seizure of private property in the absence of a formal declaration of
war“Congress could not more clearly and emphatically have withheld authority than it
did in the Taft-Hartley Act of 1947”
o Agrees with Black, but says his view of separation of powers isn’t so simpleit is much more
“complicated and flexible”
o “Democracy implies the reign of reason…”interested in a system of checks and balances

 Prefers a balancing of powers instead of a strict separation of powers so that we don’t
experience tyranny
o Feared that if Court let Truman take over the steel mills, even in the time of war, we would have
creeping tyrannyworried about a slow accumulation of power
o FDR’s actions during the Great Depression resulted in extensions of executive authority, but his
authority was not violative of the Constitution
 Three laws had already been enacted by Congress when FDR enacted his policy, and six
others were only enacted after Congress declared war, thereby falling under the “war
o The role of the Court is rigorous adherence to the narrow scope of the judicial function in
constitutional matters
 Doctrine of constitutional avoidanceif a court can decide an issue w/o regard to the
constitution, it should do so
o Phrase from McCulloch “it’s a Constitution which we are expounding”
 Frankfurter says the framers didn’t want to bind the future, and neither should we
 Manages to blend Marshall and the authority of the federal gov’t and the idea that we
decide the case on the powers of the federal gov’t w/o binding the future
o Also analyzed what past Presidents have done, namely Abraham Lincolnduring Civil War,
Lincoln expanded the authority of the president in ways which were previously unimaginable
(detained people, denied habeas corpus, etc.)
 Trying to argue that the facts were way different back then when he seized the railroads
 Concludes that arguing over the constitutionality of Lincoln’s action is to “pursue the
irrelevant”looking at the charts (in the official opinion), this argument is bolstered
o Charts (pgs. 615-628): shows other times when Congress authorized the seizure of industrial
 Headings go to the points that Frankfurter considers important to this case duration,
scope of authority, compensation
 Wants to show that where Congress has authorized seizure, it wasn’t an open-ended as
this seizure of the steel millsCold War could have lasted forever
 Using history of actions in critical periods connected with the war and labor disputes
wants to show that history does not sustain the president’s position
• *Justice Jackson concurring*:
o Powers are strongest when branches agreeJackson likes concurrent powersbranches acting
o Presidents powers are not fixed, but they fluctuate based on his relationship with Congress
o Have to look at the entire constitution to really find out what’s going onconstitution diffuses
power in order to secure liberty
o Takes a shot at Black’s theory of separation of powersJackson says there’s no such thing, they
all blend together
o In determining whether the executive has authority, there are three general circumstances:
 (1) When the President acts pursuant to an express or implied authorization of Congress,
the President’s authority is at its greatest b/c it includes all that he possesses in his own
right plus the powers which Congress can delegate.
• Implied authorization from Congress can be inaction in the face of presidential
action; executive gap filling; but where Congress expressly authorizes, President
has all of his own powers plus all those Congress can delegate
• *implied congressional authorization is important*what does this mean?
 (2) When the President acts in the absence of either a congressional grant or denial of
authority (cases in which Congress has thus far been silent), he can only rely upon his
own independent powers, but there is a zone in which he and Congress may have
concurrent authority.
• President still has all of his own powers
• Possibility of concurrent powers hereanother gap filler (emergency); if Congress
is doing nothing, president can step in
• Much depends on the facts of each situation, rather than the Constitution
• Lincoln example when he suspended habeas corpus
 (3) When the President takes measures incompatible with the expressed or implied will
of Congress, the authority of the President is at its lowest.
• Idea that if Congress has taken a stand or implied a position, then President can
continue, but he must only rely on the powers granted to him by Art. 2
o Justice Jackson stated that this case falls into category 3
 Can’t be in category 1 b/c it is conceded that no congressional authorization exists
 Can’t be in category 2 b/c Congress has not left seizure of private property an open field
but has covered it by three statutory policies forbidding such seizure
 This leaves only category 3seizure can only be supported by any remainder of
executive power after subtracting congressional power over the subject
• Therefore, Truman’s seizure can only be sustained by holding that the seizure is
within the executive domain and beyond control of Congress
o Jackson is worried that president will increase his authority by looking for emergencies
 Jackson thought the “emergency power” was made up so the President could create
“emergencies” in an effort to expand his power
 Can’t give the executive the right to decide if we have an emergencyotherwise
president would find emergencies everywhere
 Thinks Constitution requires Congress to declare emergencies to prevent executive
o Response to government’s arguments:
 “The executive power shall be vested in a President of the United States of America”
• Compares this to George IIIthe forefathers could not have meant it to be
interpreted in this manner, b/c that would make us like the governments our
nation disparagingly describe as totalitarian
 “The President shall be Commander in Chief”
• Nothing in our Constitution is plainer than that a declaration of war is entrusted
only to Congress
• Furthermore, the Constitution expressly places in Congress the power to “raise
and support Armies” and “to provide and maintain a Navy” therefore it is
Congress responsibility to supply the armed forces (referring to the seizure of the
steel mills to supply the Army)
 “…shall take care that the laws be faithfully executed”
• Matched against the 5th Amendment’s “no person shall be deprived of life, liberty,
or property”one gives a gov’t authority that reaches so far as there is law, the
other gives a private right that authority shall go no farther
 The inherent powers never expressly granted but said to have accrued to the office from
the customs and claims of preceding administrations
• The forefathers omitted the use of inherent powers in emergencies
• They knew what emergencies were, but chose to make no provision for exercise
of extraordinary authority b/c of a crisis
o “The executive action we have here originates in the individual will of the President and
represents an exercise of authority without law.”
• Frankfurter list (pg. 597) vs. Jackson list
o Frankfurter gives a list of what he will NOT delineateit’s stupid to lump together past
presidential action/hypothetical future casestaking swipes at Jackson for his list
o 4 items which he will not delineate
 What belongs to president by virtue of his officeArticle 2
 What authority belongs to the president until Congress actsCongress can limit
presidential actions if it thinks he is acting beyond Article 2
 Concurrent powers with Congress
 What powers must be exercised by the Congress and cannot be delegated to the
Presidentpower that the president can never exercise, even if Congress tries to give
him that power
o Both Justices agree there is concurrent authority between the president and congress

o Both are worried about the “creeping tyranny” of the president
• Justice Douglas concurring:
o Douglas took a similarly absolutist approach (like Black) to the President's assertion of inherent
power to cope with a national emergencyan emergency doesn’t give the President more
power, it just means that power must be exercised, and seizure power isn’t one of the powers
o He characterized the seizure as a quintessentially legislative act that the Constitution entrusted
to the Congress
o “The President might seize and the Congress by subsequent action might ratify the seizure. But
until and unless Congress acted, no condemnation would be lawful.”
 Also the gov’t must pay for it if they seize propertythis seizure is a deprivation of
property under the 5th Amendment, so Congress must pay for it, and only Congress can
pay for it, therefore only Congress can seizePresident can’t do this thru executive
o “If we sanctioned the present exercise of power by the President, we would be expanding
Article 2 of the Constitution and rewriting it to suit the political conveniences of the
present emergency.”
 Douglas says he’s not willing to let Truman change the constitution
o Discusses Lincoln in footnote 1president might seize, but congress must be the final element
of this process
 Douglas says he’s right, look at Lincolncongress has to be involved in seizures
 Lincoln suspended habeas corpus, but Congress had to return to session to ratify
• Justice Burton concurring:
o Like Jackson, Burton held that Congress, not the President, possessed the power to act in
emergencies because it had exclusive power to pass legislation.
o He relied on the language and legislative history of the Taft-Hartley Act to find that Congress
had not authorized seizure of plants involved in a labor dispute without express legislative
o Mentions Taft-Hartley Act to show that Congress did act hereAct forbids such seizure
o He hedged, however, on whether the President might, in more extreme circumstances, have
authority to act.
 Says that extreme circumstances did not exist here such to justify this actionthere was
no imminent threat to the homeland
• Justice Clark concurring:
o Rejected Black's and Douglas' absolutist approach, holding that the President did have some
inherent power to act in the case of grave and imperative national emergencies.
o Inherent power in emergencies is linked via Justice Marshall
o Clark refused, however, to define the boundaries of that power; in his view the fact that
Congress had provided in the Taft-Hartley Act for procedures that the executive could have
used, ended the discussion by barring the President from relying on any inherent powers he
might otherwise have to choose a solution other than the ones that Congress had allowed.
o Clark says there is emergency power, which is necessary to make the Constitution workcites
o Goes through list of adjectives condemned by Jacksondoesn’t care about adjectives; cares
about the idea of emergency power
o Takes a shot at Jackson“I think those that have the gratifying experience of being the
President’s lawyer, are very sincere.”
o 2 points about emergency powers:
 (1) believes the president has some inherent power in emergencies, but this is balanced
by whether Congress has acted; if it has, that changes everything
 (2) must weigh the severity of the emergency
o Bottom line is that Congress has acted heregives statutes (Taft-Hartley, Selective Service)
 President chose not to use these statutes as an avenue for seizures, therefore it’s his
fault and the seizure is not allowed
• Chief Justice Vinson, dissenting:

o Many presidents have taken such action before, most notably Lincoln (Civil War, naval blockade,
Emancipation Proclamation), Hayes and Cleveland (authorization of the use of the military to
settle strikes) without state or legislative authority.
o Rejecting the view that Congress had limited the executive's authority to seize property in this
case by providing for different procedures in the legislation it had enacted, Vinson's opinion
nonetheless appeared to recognize Congress' primacy in enacting legislation, justifying the
seizure in this case as necessary to preserve the status quo so that Congress could act
in the future, but mocking arguments based on the Constitution's provision allowing the
President to recommend legislation, rather than to make it himself, as "the messenger-boy
concept of the Office".
 Compares executive order to a judicial stayuntil Congress chooses to act the President
is just preserving the status quo in the only way he has left
 Requiring the President to recommend the seizure to Congress makes the President like
a “messenger-boy”
 In this section Vinson makes a serious attack on the reasoning of the other justices
 Only agrees with Frankfurter and Clark that there is a time when Congress hasn’t acted
where the President may act
 Never mentions “creeping tyranny”majority has weakened the president such that he
can’t protect the country (opposite of creeping tyranny, b/c the president is getting
o Must look at the contextwe have a duty to keep peace in the world
o Through legislation Congress has directed the President to build up our armed forces to keep
world peace President has a duty to execute this defense build up
o Vinson gives a way to determine when there is an emergencyhints that it may be a judicial
role of the Court to determine emergencies, but doesn’t go into detail
o Statement of what’s wrong with all the other Justices’ opinionsif we have to wait for Congress,
the President is powerless and the whole country is weakenedcondemns “executive
o There are places where the president can act UNTIL Congress actsFrankfurter idea
o President has the authority and duty to serve the people (his own powers granted by Art. 2)
o Vinson doesn’t think Congress has acted yet
• 4 Different Approaches:
o (1) No Inherent Presidential Power: There is NO inherent Presidential power; the President
may act ONLY if there is express constitutional or statutory authority
 Black’s majority opinion: Denies the existence of any inherent presidential power.
“The President’s power, if any, to issue the order must stem either from an act of
Congress or from the Constitution itself” and there is none. Inherent authority is
inconsistent with a written Constitution establishing a government of limited powers
(textualist approach).
o (2) No Interference Between Branches: The President DOES have inherent authority (can
act without statutory or constitutional authority) UNLESS the President interferes with the
functioning of another branch of government (prevents that branch from doing its duties) or
usurps the powers of another branch of government
 Douglas’s concurrence: Seizure was unconstitutional because the President was
forcing the expenditure of federal funds to compensate the steel mill owners for taking
their property. So the President was impermissibly usurping Congress’ spending power.
Emergency situations and occasions do NOT create power – they only activate power
that was present from the beginning.
o (3) Legislative Accountability: The President may exercise powers not mentioned in the
Constitution so long as the President does not violate a statute or the Constitution
 Frankfurter’s concurrence: The President may take any action not prohibited by the
Constitution or a statute. But here Congress has explicitly rejected giving the president
the authority to seize industries (by not amending Taft Hartley). Congress “clearly and
emphatically withheld authority.”
 Jackson’s concurrence: (domestic balance of power issue) The President’s seizure
of the steel mills fell into the 3rd category, and was thus unconstitutional (b/c of Taft-
Hartley Act). Most famous opinion dealing with the presidential power because he
delineated 3 zones of presidential authority.
o (4) Broad Inherent Authority: The President DOES have inherent powers that may NOT be
restricted by Congress and may act unless the Constitution is violated
 Vinson’s dissent: (foreign affairs/war powers issue) federal laws restricting the
president’s power are unconstitutional.
 Dissent here really argues implicit delegation (not inherent powers)
• Inherent powers: a claim by the President that “I’ve got the power (based on
the Constitution) and I don’t need Congress!”
• Implicit delegation: even if the President does NOT have inherent authority,
Congress has implicitly authorized him to take such actions, and that is a
sufficient delegation of authority
• The multiplicity of opinions made it difficult to determine just what the Court had decided as to whether
and when the President had authority to act without Congressional authorization. In large part this was
the result of the fact that the administration had made a weak case—the evidence of an actual
emergency was tenuous, given the substantial stockpiles of steel products in many sectors of the
economy at the time—even weaker by overstating its position and offering incoherent arguments in
the early phases of the litigation that turned public opinion against it, while framing the public debate
in the most simplistic terms.
• The decision nonetheless has had a broad impact. It represented a check on the most extreme claims
of executive power at the time.
o It also represented the Court's assertion of its own role in intervening in political questions, as
the Court later did in Baker v. Carr and Powell v. McCormack.
o The Court also applied the Frankfurter-Jackson approach to analyzing Congress' legislative
authorization of Presidential action in invalidating efforts by the Nixon administration to plant
wiretaps without prior judicial approval, while citing it more generally in support of its decision
to permit litigation against the President to proceed in Clinton v. Jones.
o The high court also relied on Youngstown in Medellín v. Texas.

Rationale: The court held that there was no explicit statute or act of Congress which authorized
the President to act in such a manner. The only two statutes which authorized the acquisition of
personal and real property were not met here. Not only were such acts unauthorized, Congress specifically
refused to grant such authorization. The court held that in order for the President to have this authority, it
must be found somewhere explicitly in the Constitution, or implicitly in some historical context or
foundation. The President cannot order policy; he can only suggest it. Congress can approve any proposal
for regulation, policy, settlement of disputes, wages, and working conditions. None of this is delegated to
the President. Under a textual approach to interpreting the Constitution, the President’s powers are curbed
in this extension. The Court also held that the President's military power as Commander in Chief of the
Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that
the laws are faithfully executed refutes the idea that he is to be a lawmaker."

War Powers; Military Tribunals; Habeas Corpus

War Powers

• War powers belong to both the President and Congress

o The only thing that’s clear in the Constitution regarding wartime is that the framers divided
responsibility for making war between the political branches in order to deter the nation from
lurching into war unwisely

o This is clear, but the question is how things change when war actually happens

 CJ Rehnquist says “the laws are not silent during war times, but they speak in a different

• Constitution gives Congress the power to “declare” war

• The President is named as Commander-in-Chief, but the reach of his authority in this capacity is not

• Congress has the power of the purse in war as well as in peace and is also provided the authority to
make governing rules for the army and the navy

• The role of the Supreme Court in wartime is not specified, but the Court has tended to guard access to
judicial hearings under the habeas suspension clause

• The lack of an explicit wartime or emergency shift in powers and rights has led courts and
commentators to take varying positions on the extent of presidential power in wartime

• No doctrine allows for suspension of the constitution during any exigencies

• War Powers Resolution:

o US involvement in the Vietnam War was extremely unpopular

o Congress subsequently passed the War Powers Resolution to control future executive military
action by requiring the President to report to Congress, and if Congress did not approve the use
of troops, the President must withdraw themPres can send troops, Congress can withdraw

o In practice it has been easy for the President to comply with the notification provisions while
controlling the depth and details of the notice provided

 Resolution hasn’t really made any difference

o No judicial decision has ever construed the War Powers Resolution

o Some argue the required reporting to Congress intrudes on the President’s powers

• Signing statements in the war powers context“torture legislation” by John McCain

o No individual detained by the US shall be subject to cruel, inhuman, or degrading treatment

 Passed by Congress, signed by President Bush

 Bush’s signing statementexecutive branch shall construe the language in a manner

consistent with the constitution

• ***consider this language in relation to the DOJ memos***

o Bush is saying the language will be interpreted to advance national securityPresident has
authority to determine the applicability under unified theory of executive authority

o Bush and McCain were on bad terms after this

Domestic Surveillance

• It was revealed that President Bush had authorized surveillance by the NSA of telecommunications
involving persons overseas thought to have ties to terrorists

• ACLU sought to enjoin such surveillance, arguing that the Foreign Intelligence Surveillance Act of 1973
required that national security surveillance warrants by obtained from FISA judges and that the
surveillance violated the 4th Amendment

• Congress in 2008 passed legislation authorizing surveillance w/o the requirement of a prior FISA
warrant, but litigation continues over whether this amendment to FISA violates the 4th Amendment

Enemy Combatant

• Another area of litigation concerns the scope of the President’s authority to designate individuals as
“enemy combatants” subject to detention until the end of hostilities

• WWI and WWIIthousands detained, but these are the easy cases (found on battlefield)

• The War on Terror has brought hard cases

o The earlier in the planning stages a suspected terrorist is apprehended, the less likely is a

• The definition of “enemy combatant” will become important for the following issues

Military Tribunals

• Lincoln famously suspended habeas corpus during the Civil Warafter the War, the Supreme Court
rejected Lincoln’s use of military tribunals to convict citizens detained during the Civil War, saying the
Constitution applies “equally in war and in peace”

• No doctrine allows for suspension of the Constitution during war and/or other emergencies

• WWII led to a number of judicial decisions generally affirming a broad scope to Executive power, none
more striking than the following (Ex Parte Quirin)

Ex Parte Quirin (1942)

Facts: These cases concern Operation Pastorius, a failed attempt in June 1942 by Nazi agents to sabotage
various U.S. targets. Following the declaration of war between the United States and Germany, eight
German residents, including Richard Quirin, received training on sabotage at a school near Berlin. The men
traveled to the United States via submarine. On the night of June 13, 1942, Burger, Heinrich, Quirin, and
Dasch landed near Long Island, New York wearing German uniforms and carrying explosives. On the night
of June 17, 1942, the remaining four came ashore in similar fashion at Ponte Vedra Beach, Florida. Shortly
after the landings, Burger and Dasch backed out of the mission. Dasch turned himself in to the Federal
Bureau of Investigations. All eight conspirators were subsequently arrested and, on the orders of President
Roosevelt, tried by military tribunals. The commission found all eight men guilty and sentenced them to
death. Because of their confessions and cooperation, President Roosevelt later reduced Burger and
Dasch's sentences to life in prison. Arguing that the President exceeded his power in ordering the
commission and that the 5th and 6th Amendments to the Constitution protect their rights to a regular trial,
seven of the eight conspirators, not including Dasch, filed petitions for a writ of habeas corpus in
Federal District Court. Their claims were denied, and they appealed to the U.S. Court of Appeals for the
District of Columbia. Before the court ruled, however, they filed for hearing before the Supreme Court and,
separately, filed petitions for habeas corpus directly with the Court. The Court, sitting in a special term,
agreed to hear the cases.

Issue: Did the President exceed his authority in ordering a trial by military commission for the German
saboteurs, thereby violating their rights under the 5th and 6th Amendments?

Holding: No.

• Quirin distinguished a Civil War case, Ex Parte Milligan, in which the Court had held that an Ohio civilian
accused of aiding the enemy was found not subject to court-martial jurisdiction b/c he could have been
tried in a civilian court

• Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant
against the United States

• Although the court issued a unanimous opinion in Quirin, the road to the final decision was marked by

o Justice Douglas noted that it was unfortunate that the court agreed to take the case. He stated
that “while it was easy to agree on the original per curiam, we almost fell apart when it came to
write the views."

o Justice Stone, for his part, was very concerned with the court’s reputation, specifically because
he did not want the court to be perceived as just standing by while six men were executed. He
pushed for a unanimous opinion.

o Despite Justice Stone’s views, Justice Jackson wrote a concurring draft opinion, expressing his
disagreement with portions of the Court’s opinion. Over time, his concurring draft got longer
and longer and evolved into a typewritten memorandum. This memorandum was written two
years before his dissent in Korematsu v. United States and a decade before his famous
concurrence in Youngstown Sheet & Tube Co. v. Sawyer. It provides insight into Jackson’s
views on the scope of the President's constitutional war powers.

• Quirin was frequently cited as justification for the Guantanamo Bay detainees following 9/11

o Upon the capture of the Quirin saboteurs, President Roosevelt issued an Executive Order, upon
which the Bush Order was putatively modeled, which authorized military commissions to try the
captives for, among other things, violations of the law of war, for providing the enemy with
intelligence and spying

• This is different from Youngstown because Youngstown concerned an exercise of presidential power
over a domestic matter against civilians, in an undeclared war. It was very different from the scenario
present in Quirin in which the President seized enemy combatants and did not address the internal
functioning of the government, much in the way that seizure in Youngstown did.

Rationale: The Court concluded that the conspirators, as spies without uniform whose purpose was
sabotage, violated the law of war and were therefore unlawful enemy combatants. Noting that Congress
had, under the Articles of War, authorized trial by military commission for unlawful enemy combatants, the
Court therefore determined that the President had not exceeded his power. Furthermore, the Court
asserted that the 5th and 6th Amendments "did not enlarge the right to jury trial" beyond those cases where
it was understood by the framers to have been appropriate. Therefore, because the amendments cannot
be read "as either abolishing all trials by military tribunals, save those of the personnel of our own armed
forces, or, what in effect comes to the same thing, as imposing on all such tribunals the necessity of
proceeding against unlawful enemy belligerents only on presentment and trial by jury," the rights of the
conspirators were not violated.

Habeas Corpus


• Habeas corpus: “a writ employed to bring a person before a court, most frequently to ensure that the
party’s imprisonment or detention is not illegal”
• Implemented in §14 of the Judiciary Act of 1789, which allowed the federal courts, including the
Supreme Court, to issue the writ to free those held in custody, under or by color of the authority the US

• After the Civil War, Congress perceived this authorization of the writ to be too narrow b/c state
prisoners could not obtain federal habeas corpus relief

• In 1867, the Reconstruction Congress passed an act which for the first time provided federal courts
with the power “to grant writs of habeas corpus in all cases where any person may be restrained of his
liberty in violation of the Constitution or of any treaty or law of the US”

o Less than a month later, Congress adopted the Military Reconstruction Act, which divided the
South into districts subject to military command

o In 1867, McCardle, an unreconstructed white southerner was arrested and held for trial for the
nonmilitary crimes of disturbing the peace and impeding reconstruction

 McCardle filed a petition for habeas corpus under the 1867 Act

Ex Parte McCardle (1869)

Facts: McCardle was arrested by federal authorities in 1867 for writing and publishing a series of editorials
in his Mississippi newspaper. The editorials were sharply critical of Reconstruction. McCardle sought a writ
of habeas corpus on the ground that the Reconstruction Acts under which he was arrested were
unconstitutional. McCardle appealed to the Supreme Court under an 1867 congressional statute that
conferred jurisdiction on appeal to the Supreme Court. After hearing arguments in the case, but prior to
announcing a decision, fearing the Supreme Court would hold the Reconstruction Act unconstitutional,
Congress passed legislation withdrawing the 1867 Act conferring jurisdiction to the Supreme Court.

Issue: May the Congress withdraw jurisdiction from the Supreme Court after that jurisdiction has been

Holding: Yes. Congress has the authority to withdraw appellate jurisdiction from the Supreme Court at
any time.

• Because Congress withdrew jurisdiction to hear the case, McCardle had no legal recourse to challenge
his imprisonment in federal court.

• Justice Chase’s opinion:

o Congress has the authority to withdraw appellate jurisdiction from the Supreme Court at any

o The Supreme Court validated Congress’ withdraw of the Courts’ own jurisdiction. The basis for
this repeal is the Exceptions Clause in Art. III, §2 – “…the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the
Congress shall make”.

o “when an act of the legislature is repealed, it must be considered, except as to transactions

past and closed, as if it never existed”

o Durousseau v. United States (1810) held that Congress's affirmative description of certain
judicial powers implied a negation of all other powers. Creating such legislation was legitimate
under the authority granted them by the United States Constitution. By repealing the act which
granted the Supreme Court authority to hear the case, Congress made a clear statement that
they were using this Constitutional authority to remove the Supreme Court's jurisdiction. The
court has no choice but to dismiss the case.

• One specific restriction on congressional power to exclude cases from the courts appears from the
Suspension Clause in Article I, §9, cl. 2: “The privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellions or Invasion the public safety requires it.”

o Hill: Does this clause guarantee a right to habeas corpus? If so, is it a self-executory right?

o Court says it’s not for them to discern the motives behind Congress’s political motives behind

 Hill says the Court is protecting Congress with this decision

• Hill on this case:

o It is quite possible that this decision would come out differently today (look to the recent cases
that have dealt with similar situations – they show more of a deference towards the Court’s
jurisdiction than Congress’ authority)

o The Supreme Court here did not want to get into a controversy with Congress

o “This is an example of a court that blinked” – Hill

• Amar on this case:

o Calls this decision a “retreat” by the Court

o Amar on Article III, §2:

 This language demonstrates that the Framers intended the Courts to play distinctive

 But in McCardle, the Court allows more of an intersection between the judiciary and
legislative branches

• Chemerinsky on this case:

o Supporters of contemporary proposals to restrict Supreme Court jurisdiction cite McCardle as


 They contend that McCardle establishes that Congress may prevent Supreme Court
review of constitutional issues

 They quote the Court’s statement in McCardle – “We are not at liberty to inquire into the
motives of the legislature. We can only examine into its power under the Constitution;
and the power of Congress to make exceptions to the appellate jurisdiction of the
Supreme Court is given by express words in the Constitution”

o Opponents of proposals to strip the Supreme Court jurisdiction distinguish McCardle:

 Even after the repeal of the 1867 Act (and thus, the revocation of the Court’s jurisdiction
to hear appeals involving cases stemming from that Act), the Supreme Court still had the
authority to hear claims under the 1789 Judiciary Act (which allowed federal courts to
grant writs of habeas corpus to federal prisoners)

• Ex parte McCardle has become revived recently because Congress repealed the statute that was being
used by the detainees in the Guantanamo Bay detention camp to petition for habeas corpus. The
government has argued that the Guantanamo cases should be dismissed, just as in Ex parte McCardle.

Rationale: The Court validated congressional withdrawal of the Court's jurisdiction. The basis for this
repeal was the exceptions clause of Article III Section 2. But the Court pointedly reminded readers that the
1868 statute repealing jurisdiction "does not affect the jurisdiction which was previously exercised."

Habeas Corpus in the “War on Terrorism”

• The Supreme Court initially held that there was a statutory habeas right under the general habeas
statute, thereby avoiding the constitutional question of whether constitutional habeas was available to
aliens held by the US in Guantanamo Bay (Rasul v. Bush (2004)

• Simultaneously, the court held that citizens detained as enemy combatants were entitled under the
due process clause of the 5th Amendment to a “meaningful opportunity to contest the factual basis for
that detention before a neutral decisionmaker” (Hamdi v. Rumsfeld (2004))

• Responding to Rasul, the Bush Administration obtained authority from Congress in the Detainee
Treatment Act of 2005 (DTA) an exception from habeas corpus under the general habeas statute for
aliens detained at Guantanamo Bay and elsewhere in the US

• The Court responded to the DTA and the President’s military commissions order in Hamdan v.
Rumsfeld (2006) Court said the DTA jurisdiction-stripping provision was inapplicable to pending cases
like Hamdan’s, and the military commissions violated both the Uniform Code of Military Justice and the
Geneva Conventions

• Following the Hamdan decision, Bush returned to Congress, which passed the Military Commissions Act
of 2006 (MCA)Section 7(a) removed jurisdiction of pending and future habeas cases from alien
detainees, at Guantanamo and elsewhere

• Boumediene v. Bush (2008) was the culmination of this lengthy struggle between the President,
Congress, and the Supreme Court over application of habeas corpus and military commission
proceedings to detainees at Guantanamo Bayheld that Section 7(a) of the MCA was unconstitutional
as a violation of the Suspension Clause of Article I

Boumediene v. Bush (2008)

Facts: In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when
U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there. The U.S.
government classified the men as enemy combatants in the war on terror and detained them at the
Guantanamo Bay Naval Base. Boumediene filed a petition for a writ of habeas corpus, alleging violations of
the Constitution's Due Process Clause, various statutes and treaties, the common law, and international
law. The District Court judge granted the government's motion to have all of the claims dismissed on the
ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas
petition. The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court
reversed in Rasul v. Bush, which held that the habeas statute extends to non-citizen detainees at
Guantanamo. In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates
federal courts' jurisdiction to hear habeas applications from detainees who have been designated
(according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants. When
the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not
apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The
Suspension Clause reads: "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."

Procedure: The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA
applying the law to "all cases, without exception" that pertain to aspects of detention. One of the purposes
of the MCA, according to the Circuit Court, was to overrule the Supreme Court's opinion in Hamdan v.
Rumsfeld, which had allowed petitions like Boumediene's to go forward. The D.C. Circuit held that the
Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would
not have been understood in 1789 to apply to an overseas military base leased from a foreign

Issue(s): (1) Should the Military Commissions Act of 2006 be interpreted to strip federal courts of
jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo
Bay, Cuba? (2) If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the
Constitution? (3) Are the detainees at Guantanamo Bay entitled to the protection of the 5th Amendment
right not to be deprived of liberty without due process of law and of the Geneva Conventions? (4) Can the
detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to
invoke that review?

Holding: (1)-(4) Yes.

• Structural balance of powers case; not federalism b/c states don’t make foreign policy

• Petitioners are aliens designated as enemy combatants; currently detained at Guantanamo

• Court must address the question of whether detainees have the right of habeas corpus

o Do they have habeas? And if not, is this denial in conformance with the suspension clause?

o Suspension Clause (Art. 1, Sec. 9, Cl. 2): privilege of habeas corpus will not be suspended
except in cases where rebellion may require it for public safety

 Only Congress can suspend habeasdon’t want executive to be able to suspend, b/c the
executive is the branch detaining ppl (conflict of interest)

o Nowhere in the Constitution is habeas corpus granted as a fundamental rightit is merely

referenced to note that it can only be suspended by Congress

• Justice Kennedy’s majority opinion:

o If Congress intends to suspend the right to habeas corpus, an adequate substitute must offer
the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous
application or interpretation of relevant law, and the reviewing decision-making must have
some ability to correct errors, to assess the sufficiency of the government's evidence, and to
consider relevant exculpating evidence.

 The court found that the petitioners had met their burden of establishing that Detainee
Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus.

o While the government argued that Guantanamo Bay is not formally part of the United States,
the Court said the United States maintains de facto sovereign control over the base at
Guantanamo Bay, while Cuba maintains de jure sovereign control over the area.

• Justice Souter concurring:

o Citing the Supreme Court's decision in Rasul v. Bush, he added that the “application of the
habeas statute to persons detained at Guantanamo is consistent with the historical reach of the
writ of habeas corpus.”

o Souter pointed to the lengthy imprisonments, some of which have exceeded six years, as "a
factor insufficiently appreciated by the dissents."

o He thus denied the charge of the dissenters that the Court's majority "is precipitating the
judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the
District of Columbia Circuit) could handle within some reasonable period of time."

• Chief Justice Roberts, dissenting:

o Focused on whether the processes afforded the Guantanamo detainees in the Detainee
Treatment Act were adequate substitutes for the Habeas protections the Constitution
guaranteed. By arguing in the affirmative, he implied that the issue of whether the detainees
had any Suspension Clause rights was moot (since, if they did, he found that those rights were
not violated anyway).

• Justice Scalia, dissenting:

o Scalia argued, like Roberts, that "the procedures prescribed by Congress in the Detainee
Treatment Act provide the essential protections that habeas corpus guarantees; there has thus
been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act

 Suspension Clause does not apply b/c there is nothing to suspendGuantanamo is not
under our jurisdiction, so we can’t suspend something that doesn’t apply

o The commission of terrorist acts by former prisoners at Guantanamo Bay after their release
"illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a
foreign theater of operations where the environment does not lend itself to rigorous evidence
collection." A consequence of the Court's majority decision will be that "how to handle enemy
prisoners in this war will ultimately lie with the branch the judiciary that knows least about the
national security concerns that the subject entails."

o A conflict between the Military Commissions Act and the Suspension Clause "arises only if the
Suspension Clause preserves the privilege of the writ for aliens held by the United States
military as enemy combatants at the base in Guantanamo Bay, located within the sovereign
territory of Cuba."

 Right to writ is only extended to areas over which US have “de jure” jurisdiction

 Attempting to narrow judicial review

o According to Justice Scalia, the Court's majority's "analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are without judicial remedy, all enemy
combatants detained during a war, at least insofar as they are confined in an area away from
the battlefield over which the United States exercises 'absolute and indefinite' control, may seek
a writ of habeas corpus in federal court."

• Court also tells us what they do NOT decide:

o (1) whether the President has the authority to detain the prisoners

o (2) whether writ of habeas corpus must be issued

• Must decide instead whether the MCA strips the jurisdiction of the federal courts such that they must
dismiss habeas cases that are pending

o 2 factors shape the opinion:

 (1) whether detainees are barred from seeking writ b/c of their designation by executive
branch as enemy combatants OR

 (2) b/c of the physical location of Guantanamo

• Gov’t argued that writ was not extended to detainees outside of US and Guantanamo was not under
the sovereign jurisdiction of the US

o Court denied this, saying US has the “complete jurisdiction and control” over Guantanamo,
granting “de facto sovereignty”

o But steered away from giving “de jure sovereignty” b/c this would allow the gov’t to detain
whoever they wanted all over the world

 Don’t want to let the executive decide when the constitution will and won’t apply

 Court quotes Marshall in Marburyit’s the job of the Court to decide what the law is

• Opinion ends with a mention of emergency situationsbasically says the Constitution was meant to
remain unchanged during all times; thus, it can’t be interpreted less stringently when the executive
says they have an emergency

Rationale: A 5-4 majority answered yes to all four questions. Justice Kennedy stated that if the MCA is
considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court
went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate
substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The
detainees were not barred from seeking habeas or invoking the Suspension Clause merely because they
had been designated as enemy combatants or held at Guantanamo Bay. The Court reversed the D.C.
Circuit's ruling and found in favor of the detainees.

Munaf v. Geren (2008)

Facts: In 2005, Mohammad Munaf was arrested on suspicion of kidnapping by U.S. military officers acting
as part of a multinational force in Iraq. Munaf's sister petitioned on his behalf for habeas corpus in the U.S.
District Court in the District of Columbia. Soon after the petition was filed, Munaf was informed that he
would be tried in an Iraqi court and transferred to Iraqi custody if convicted. Munaf filed a temporary
restraining order attempting to block the custody transfer. After the Iraqi court sentenced him to death
and the district court dismissed his case for lack of jurisdiction, Munaf appealed to the U.S. Court of
Appeals for the D.C. Circuit which granted an injunction against the transfer. However, the D.C. Circuit, like
the district court, eventually concluded that it did not have jurisdiction over Munaf's claim, basing its
decision largely on the Court's ruling in Hirota v. MacArthur (1948) (prohibited Japanese citizens held
abroad by U.S. troops from filing habeas petitions to challenge sentences handed down by a military
tribunal sitting in Japan but including U.S. military personnel). Petitioner urges the Court to set aside Hirota
and its ruling and to base its reasoning on a string of cases reaching the opposite result.

Issue: Do U.S. courts have jurisdiction to hear habeas corpus petitions brought on behalf of U.S. citizens
detained overseas by American military authorities working as part of a multinational force?

Holding: Yes.
• Despite the holding that US courts have jurisdiction to hear habeas corpus petitions in such cases, the
Court found that habeas corpus provided them with no relief holding that "Habeas corpus does not
require the United States to shelter such fugitives from the criminal justice system of the sovereign
with authority to prosecute them”they stated no claim for which relief could be granted

Rationale: Chief Justice Roberts, writing for a unanimous Court, held that the habeas corpus statute
extends to American citizens held overseas by American forces operating subject to an American chain of
command even if part of a larger multinational force. The Court pointed specifically to the statute's
application to individuals held in custody "under color of the authority of the United States" to hold that
actual Government custody is sufficient for jurisdiction in federal courts.

John Yoo Memos

June 27, 2002 (pgs. 1-6): Applicability of 18 U.S.C. § 4001 (A) to Military Detention of United
States Citizens

• Considers whether US citizens can be detained

o 18 USC §4001(a) appears to prohibit this

• 18 U.S.C. § 4001 states:

o (a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to
an Act of Congress.

o (b) (1) The control and management of Federal penal and correctional institutions, except
military and naval institutions, shall be vested in the Attorney General, who shall promulgate
rules for the government therof, and appoint all necessary officers and employees in
accordance with the civil service laws, the Classification Act, as amended and the applicable
regulations. (2) The Attorney General may establish and conduct industries, farms, and other
activities and classify the inmates and provide for their proper government, discipline,
treatment, care, rehabilitation, and reformation.

• But the memo argues that the President’s authority, based on his position as Commander-in-Chief,
allows him to do this

• Article II vests the entirety of the “executive power” in the Presidenthe alone is constitutionally
vested with the entire charge of hostile operations

o President is Commander-in-Chief of the armed forcesgrant of war power includes all that is
necessary and proper for carrying these powers into execution

o One of the core function of the Commander-in-Chief is that of capturing and detaining members
of the enemy

 Numerous Presidents have done this in the past

• Furthermore, President’s authority to detain an enemy combatant is not diminished by a showing of

American citizenship

o Supreme Court (Ex Parte Quirin) has held that “all individuals, regardless of citizenship, who
associate themselves with the military arm of the enemy are considered enemy belligerents”

o Nothing further need be demonstrated to justify their detention

• Cites Milligan and Quirin as support

o Says Milligan stands for the proposition that we can’t detain violators not participating in the
military effort, but left open whether a person more directly associated with the forces of the
enemy could be detained

o Quirin restricted the scope of Milligan, finding that Milligan does not apply to enemy belligerents
captured within the US

 Quirin expressly distinguished Milligan on the basis that Milligan had been a civilian, and
not an enemy belligerent

o Accordingly, the memo concludes that under Milligan and Quirin, the President’s constitutional
authority as Commander-in-Chief to detain enemy combatants extends to US citizens and non-
citizens alike

March 14, 2003 (pgs. 1-10, 55-68): Military Interrogation of Alien Unlawful Combatants Held
Outside the US

• Talks about methods of torture

• Memo supports using torture

• Issue was whether the torturers would be subject to punishment

• This was about non-citizens held outside the US

• Looks like the only limit is that we can’t kill them, and even if that happens accidentally, oh well

• Is this the right balance of authority under our Constitutional system?

• This memorandum has several conclusions: (1) The 5th and 8th Amendments do not extend to alien
enemy combatants held abroad. (2) Federal criminal laws of general applicability do not apply to the
properly-authorized interrogations of enemy combatants, undertaken by military personnel. (3) The
following laws apply in special maritime and territorial jurisdiction of the US, however they would not
apply to military interrogations: assault, maiming, interstate stalking. (4) Two relevant criminal
prohibitions apply to conduct outside the jurisdiction of the U.S., war crimes, 18 U.S.C. § 2441 (2000),
and torture, 18 U.S.C. §2340 A (2000).

o (1) The 5th Amendment does not apply, because it does not apply to the President’s conduct of a
war, and the 5th Amendment does not apply extraterritorially to aliens who have no connection
to the United States. The 8th Amendment solely applies to those persons upon whom criminal
sanctions have been imposed.

o (2)-(3) Does not apply to members of the armed forces

o (4) 18 U.S.C. § 2441 (2000) (Criminalizing war crimes by U.S. nationals) does not apply to al
Qaeda, because they are a nongovernmental organization. 18 U.S.C. §2340 A (2000) makes it a
criminal offense for any person “outside the United States to commit or attempt to commit
torture.” Therefore, military bases in a foreign state are not subject to this rule.
• HillThe point is to preserve the president’s authority, and to build a case that those conducting the
interrogations should not be subject to criminal penalties. A government defendant should be able to
argue that any conduct was fulfilling the executive branch’s authority to protect the federal
government from attack. The government was protecting their right to self-defense. If the Vice
President ordered these interrogations, we are in a Constitutional mess that is not addressed here. No
recanting over militarization or that the President provides the authority here. This is a very partial

Bush v. Gore (2000)

Facts: Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and
concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results,
on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by
hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must
immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for
president) because there were enough contested ballots to place the outcome of the election in doubt.
Governor George Bush and his running mate, Dick Cheney, filed a request for review in the U.S. Supreme
Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S.
Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.

Issue: Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by
making new election law? Do standardless manual recounts violate the Equal Protection and Due Process
Clauses of the Constitution?

Holding: Yes.

• Federalism is at play in this case, even the Court avoids the issue; as well as balance of powers
• Hill says there was really only one issueWho was going to be President?
o Court refused to admit it was really just deciding this issue
• The case effectively resolved the 2000 presidential election in favor of George W. Bush
• Background: Only eight days earlier, the United States Supreme Court had unanimously decided the
closely related case of Bush v. Palm Beach County Canvassing Board, and only three days earlier, had
preliminarily halted the recount that was occurring in Florida.
• In a per curiam decision, the Court in ruled that the Florida Supreme Court's method for recounting
ballots was a violation of the Equal Protection Clause of the 14th Amendment
• The Court also ruled that no alternative method could be established within the time limits set by the
State of Florida
• Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2
of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida
• Article II, Sec. 1, Cl. 2: method of choosing electors
o Under the U.S. Constitution the President and Vice President are chosen by Electors, under a
constitutional grant of authority delegated to the legislatures of the several states and the
District of Columbia
o The constitution reserves the choice of the precise manner for creating Electors to the will of the
state legislatures. It does not define or delimit what process a state legislature may use to
create its state college of Electors. In practice, the state legislatures have generally chosen to
create Electors through an indirect popular vote
• Rehnquist concurring (joined by Scalia and Thomas):
o Argued that the recount scheme was also unconstitutional because the Florida Supreme Court's
decision made new election law, which only the state legislature may do

o Says the dispute is about Art. 1, Sec. 1, Cl. 2the legislature of the state may direct the way
the electors for the president are chosen
o Congress determines how many electors each state gets and determines election day and the
day on which they shall give their votesArt. 2, Sec. 3, Cl. 1
 Federalism problemwhat is the Sup. Ct.’s role in ascertaining the meaning of state
law? Here they see a federal question based on who chooses presidential electors
o Rehnquist opinion focused on 3 U.S.C. §5, which provides that the state’s selection of electors
“shall be conclusive, and shall govern in the counting of the electoral votes” if the electors are
chosen under laws enacted prior to election day, and if the selection process is competed 6
days prior to the meeting of the electoral college.
 Rehnquist bootstraps this procedure as a limitation on what the state court can do.
 This prevents a state from changing its electoral process after the election and that FL
Sup. Ct. had done this by usurping the authority Florida law had vested in the FL
secretary of state and the FL circuit courts.
o Rehnquist concluded that the FL Sup. Ct. “significantly departed from the statutory framework
in place on Nov.7, and authorized open-ended further proceedings which could not be
completed by Dec. 12, thereby preventing a final determination by that date.”
• Breyer and Souter (writing separately):
o Agreed with the per curiam holding that the Florida Court's recount scheme violated the Equal
Protection Clause, but they dissented with respect to the remedy, believing that a constitutional
recount could be fashioned. Time is insubstantial when constitutional rights are at stake.
• Ginsburg and Stevens (writing separately):
o Argued that for reasons of federalism, the Florida Supreme Court's decision ought to be
respected. Moreover, the Florida decision was fundamentally right; the Constitution requires
that every vote be counted.
• Stevens, dissenting (joined by Ginsburg and Breyer):
o Jurisdiction: there are very rare occasions where the federal judiciary should intervene in the
state’s responsibility for selecting presidential electors, but this is NOT one of themthinks
there is no significant federal question and therefore no jurisdiction
o Challenged the per curiam’s premise that there was a denial of equal protection
 Argued that the procedure created by the Florida Supreme Court, with a trial judge
resolving disputes, could prevent unequal treatment of like ballots
o Stevens said that if the lack of standards for counting is the problem, the solution is to send the
case back to Florida for the creation of standards and subsequent counting
o “Although we may never know with complete certainty the identity of the winner of this year’s
Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in
the judge as an impartial guardian of the rule of law.”
• Ginsburg, dissenting:
o Argued that there was no denial of equal protection and that, in any event the appropriate
solution was to have the case sent back to FL for the counting to continue
o FL S. Ct. should have been given more deference because it is the highest court in the state
 Does not say there is no jurisdiction because the Court does not want to make it so
they can’t review elections at all
• Vote breakdown:
o Equal Protection Clause (7-2)
7 Justices (5 Justice majority plus Breyer and Souter) agreed there was a violation of the
Equal Protection Clause b/c of the different standards used
o Remedy (5-4)
 The 5 Justice majority agreed that December 12th was the deadline for recount
 The other 4 Justices opposed
• Breyer and Souter wanted to remand the case to the Florida Supreme Court to
permit that court to establish uniform standards of what constituted a legal vote
and then manually recount all ballots using those standards
• Stevens and Ginsburg (dissenters) did not think there was any violation of the
Equal Protection Clause in the first place
• Who is in charge of a federal election? Each state is responsible for its own electorate.
o Hill sees this as a federalism case
o It opens up controversies about federalism and balance of powers across the state line
o Bush v. Gore is a seminal case that the Court will never cite again.
• Issues to consider:
o Jurisdiction: Court hints there is a federal (constitutional) questions to be decided, so they have
jurisdictionbut they didn’t explicitly give a jurisdictional basis…did they have one?
o Equal Protection: How can there be an equal protection of voters argument when none of the
voters were parties to the suit? Bush and Gore might not have standing b/c they aren’t Florida
• Note that Jeb Bush was the Governor of FL at the time

Rationale: Noting that the Equal Protection clause guarantees individuals that their ballots cannot be
devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida
Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory,
it was unfair in practice. The record suggested that different standards were applied from ballot to ballot,
precinct to precinct, and county to county. Because of those and other procedural difficulties, the court
held that no constitutional recount could be fashioned in the time remaining (which was short because the
Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to
make broad precedents, the per curiam opinion limited its holding to the present case.

Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also
unconstitutional because the Florida Supreme Court's decision made new election law, which only the
state legislature may do.

Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court's recount
scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that
a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake.

Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme
Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the
Constitution requires that every vote be counted.

Individual Rights

People who get “lost in the shuffle” / cases where the “petitioner is thrown under the bus” / instances
where individual rights get trampled for “con law to happen”

• Ex Parte McCardle
• Marbury v. MadisonMarbury is forgotten
• Seminole Tribe
• Bush v. Gorewhat happened to the voters in this case?
• Alden v. Maine

Situations in which the opposite occurswhere constitutional law claims are raised simply as a backdoor
to get the Supreme Court to decide cases involving individual rights:

• Hamdanthis guy basically doesn’t have any for rights, he’s not an American citizen, but his attorney
brings his case as a balance of powers issue

• INS v. Chadhabalance of powers are again used to protect individual rights

“The government of the United States has been emphatically termed a government of law, and not of
men” – Marshall in Marbury (setting the precedent of the “petitioner to get thrown under the bus”)


• Federalism: the system of gov’t in which the power is divided between the federal government and the
state governments
o Before the Constitution, the each state was essentially sovereign
o The Constitution created a federal government with sufficient powers to both represent and
unite the states, but did NOT supplant state governments
• Express/Enumerated Powersinclude the right to levy taxes, declare war, and
regulate interstate and foreign commerce
• Implied Powersfederal gov’t has the implied power to pass any law "necessary and
proper" for the execution of its express powers
• Reserved Powerspowers that the Constitution does NOT delegate to the federal
government or forbid to the states are reserved to the people or the states (10th

10th Amendment
• “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved for the States respectively, or to the people”
o The federal government is limited ONLY to the powers it is granted in the Constitution
o The court has bounced back and forth between viewing the 10th Amendment as (a) a reminder
that Congress can only legislate if there is authority in the Constitution and (b) viewing the 10th
Amendment as a limit on Congress’ power
• (a) 10th Amendment is a reminder that Congress can only legislate if there is authority in
the Constitution
• Gibbons v. Ogden, Wickard v. Filburn, Heart of Atlanta, Gonzales v. Raich, Garcia
• (b) 10th Amendment is an independent limit on the legislative powers of Congress
• US v. Lopez, US v. Morrison, New York v. US, Printz v. US
o Overview of the 10th Amendment Cases
• When Congress is regulating the states, the regulation raises a 10th Amendment issue
• As long as Congress has passed a generally applicable law, this law can apply to states
just as it applies to individuals, and there is NO 10th Amendment violation
• Garcia v. SAMTA (1985) – minimum wage laws may be applied to state workers
just as they are applied to private workers
• But, Congress may NOT directly compel states to enact or enforce a federal regulatory
program, or force state or local officials to perform particular governmental functions
• New York v. US (1992), Printz v. US (1997)

11th Amendment
• “The Judicial powers of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State”
o Imposes limitations on the jurisdiction of the federal courts
 Sovereign immunity in the federal courts is based on the Supreme Courts’
interpretation of the 11th Amendment
o 11 Amendment has been interpreted more broadly that what the text might suggest:
 Blocks ALL suits by private citizens against states
 Applies to suits “at law” and also “at equity” – so a private citizen cannot sue to have a
state enjoined or ordered to do something any more than it can sue to recover damages
o Exclusions from the coverage of the 11th Amendment:
 Does NOT bar suits by the federal government against a state
 Does NOT bar suits against cities or other political subdivisions of a state
 Does NOT bar suits by one state against another (as long as plaintiff state is truly suing
for itself and not to protect private interests of individual citizens)

o 11th Amendment is a core constitutional limitation on federal judicial power
 Congress can NOT overrule this broad reading, can NOT abrogate the 11th Amendment,
can NOT authorize a state to be sued by its own citizens
o 11th Amendment was ratified based on political power, after the holding in Chisholm v. Georgia
 There was an uproar after the Court’s decision in that case, and that prompted the 11th

Supremacy Clause
• “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the authority of the United States, shall be the supreme
Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.” (Art. VI, Section 1, Clause 3)
o Establishes that the Constitution and federal statutes are supreme, and states judges are bound
to uphold it (even if state laws conflict)
o This is not as clear as it seems, however, because of the 10th Amendment

Supremacy Clause and Preemption

• Supremacy Clause
o Establishes that the Constitution and federal statutes are supreme, and states judges are bound
to uphold it (even if state laws conflict)
o This is not as clear as it seems because of the 10th Amendment
o Hillthe Supremacy Clause is a bit of a puzzle because it doesn’t clear up federalism
• Preemption
o Because of the Supremacy Clause, if there is a conflict between federal law and state or local
law, the state or local law is deemed preempted because the federal law is supreme
• Even if a state law is within a state’s acknowledged power, if that state law interferes
with or is contrary to federal law, the state law must yield
o Preemption doctrine is thus derived from the Supremacy Clause

Dormant (Negative) Commerce Clause

• Dormant (Negative) Commerce Clause: inferred constitutional provision that state and local laws are
unconstitutional if they place an undue burden on interstate commercelimit on state power
o Originated by a Marshall comment in Willison v. Black Bird Creek Marsh Company (1829)
o There is NO constitutional provision that expressly declares that states may NOT burden
interstate commerce
• SourceSupreme Court has inferred this from the grant of power to Congress in Article I,
§8 Commerce Clause
• ScopeIt is a restriction that prohibits a state from passing a legislation that burdens
interstate commerce
• If Congress has legislatedthe issue is whether the federal law preempts the state or local law
• If Congress has NOT acted, or if NO preemption is foundthe state or local law can still be challenged
on the ground that it excessively burdens commerce among the states
o So, even if Congress has NOT acted (even if it’s commerce power lies DORMANT), state and
local laws can still be challenged as unduly impeding interstate commerce
• Commerce Clause has 2 distinct functions:
o (1) an authorization for Congressional actions
o (2) the ability to limit state and local regulationthis is the Dormant Commerce Clause
• Congress can invalidate any state/local law that it deems to place an undue burden on interstate
commerce, because Congress has always had the authority under is commerce power to preempt state
or local regulation of commerce
• The issue with regard to the Dormant Commerce Clause is whether the Judiciary, in the absence of
congressional action, should invalidate state and local laws b/c they place an undue burden on
interstate commerce?
• Arguments FOR the Dormant Commerce Clause:
o (1) Historical Argument: framers intended to prevent state laws that interfered with interstate
commerce, ie. the absence of any federal commerce power under the Articles of Confederation
was deemed problematic and resolved by the Constitution
o (2) Economic Argument: the economy is better if state and local laws impeding with interstate
commerce are invalidated
o (3) Political Justification: states and their citizens should not be harmed by laws in other states
where they lack political representation – it is the duty of the federal gov’t to protect them
• Arguments AGAINST the Dormant Commerce Clause:
o (1) Textual Argument: framers did not include a provision prohibiting states from interfering
with interstate commerce, even though they included many restrictions on state power in Art. I,
• Justices Thomas and Scalia are against the DCC for this reason (they are texualists)
o (2) Separation of Powers Argument: Congress was given the constitutional power to invalidate
state laws that unduly burden interstate commerce, and the judiciary should not interfere with
that power (Rehnquist)

Market Participant Exception to the DCC

• Market Participant Exception: a state may favor its own citizens in dealing with government-owned
business and in receiving benefits from government programs
o In other words, if a state is literally a participant in the market (a state-owned business), and not
a regulator, then the Dormant Commerce Clause does NOT apply
o So discrimination against out-of-staters is allowed that would otherwise be impermissible