1. How have people assented to the constitution as a social contract
    1. Loch had the idea of the foundation of society in the social contract – a theory of tacit consent (the mere fact they are living here is proof that they have accepted the agreement0
    2. Hume: could be that everything else is a terrible condition
    3. Hamilton: no democracy can survive if there are no counter-majoritian gaps
  2. Federalism and States rights
    1. Three ways that the federal government has exclusive domain over an area
      1. Expressly granted to federal government in constitution
      2. Expressly denied to states in constitution
      3. Something that "by its nature" the Federal government has to handle
    2. States can tax the federal government if it is indirect, and non-discriminatory
      1. States can tax so long as it doesn’t unduly interfere with interstate commerce
      2. State regulations on federal property has to be with federal consent
      3. Indirect taxes on the federal government are ok so long as they are nondiscriminatory
    3. Federal government can’t tax a state’s property that is used in performance of its basic governmental functions
    4. There are some things (such as education) that are historically in the domain of the states
      1. Note that 21st amendment, in repealing 18th amendment gave the states power to legislate their alcohol (almost specifically taking it away from the states) -- and
        1. State regulation of liquor is wider than constricted by commerce clause
    5. Preemption based on by statutes or common law
      1. Preemption of federal laws over state laws by the supremacy clause and the commerce clause
        1. Is there a direct conflict between the federal and state regulation (e.g., joint compliance isn't possible, or the objectives conflict)? If so, federal law automatically pre-empts. If there's no direct conflict — i.e., the federal and state statutes merely cover the same subject matter
          1. local law, than congress prevails – else if there is room for the local law, than both laws are good
            1. does the local law inhibit the federal government’s interests (Pacific Gas and Electric)
        2. Was the federal law intended to occupy the entire field? (Pacific Gas and Electric Company)
          1. If so — the federal law preempts the state law. If not — the state law stands.
        3. Prudential factors that the federal courts look to in deciding whether to pre-empt -- if a federal law covers the whole area in question then the federal law applies
          1. whether historically, the area has been regulated mainly by the states, or rather, mostly by the federal government;
          2. the pervasiveness of the federal regulation (e.g., creating a federal agency with regulatory authority);
          3. the similarity between state and federal law (the more they coincide, the more likely federal law intended to supersede state law);
          4. the need for uniform federal regulation.
      2. Congress's can consent to preempted
        1. Congress can say that the states have sole power to regulate a given area (okay under the Mcarron act)
        2. Ward case (still subject to equal protection clause and maybe dormant commerce clause) - -still can’t discriminate against out of state businesses
          1. Under equal protection, a corporation is a citizens – under privileges and immunities a corporation is not a citizen
    6. Privileges and immunities clause -- The interstate Privileges & Immunities Clause prevents states from discriminating against out-of-state citizens and residents as regards "rights fundamental to national unity." (including earning a living)
      1. Substantial reasons test violating the clause
        1. There needs to be a tight fit between the discrimination and a particular evil the state is committing and discriminating based on
          1. Question of fact as to whether things actually are aimed at a particular evil
        2. Exception to privileges and immunities clause for vital state functions
          1. Has to be a substantial evil to combat (not imaginary) –e.g. unemployment (Campden)
            1. the discrimination is closely related to a substantial state purpose (e.g., protecting natural resources owned by a state),
              1. A state may still prevail if it proves that protecting jobs is a substantial state purpose and that the statute is a reasonable means of attaining this goal. United Building Trades Council v. Camden (1984).
          2. On the other hand, A state’s preferential hiring would not remedy the problem but would still adversely impact non-residents, it would violate the interstate Privileges & Immunities Clause. For instance, a statute that requires private preferences for hiring, it is invalid. Hicklin v. Orbeck (1978).
            1. less restrictive means to accomplish this purpose are not feasible. Supreme Court of New Hampshire v. Piper (1985).
      2. Exclusions
        1. There is no exception for the state as a "market participant";
        2. Federal government cannot exempt a state from interfering with privileges and immunities clause
        3. Only those rights that qualify as privileges and immunities are to be considered other rights
        4. Instate residents have no claims under the privileges and immunities clause (because instate residents have recourse to the polls)
          1. Campden -- Blackmun’s dissent in Camden was that out of staters might benefit from in-staters lobbying at the polls
        5. The court says that the fact that you treat your own in-state citizens differently is not a justification for treating out of state residents differently.
        6. Corporations do not count
        7. Aliens do not count
    7. Power that the congress has to get states to do things because (federal incentives)
      1. New York v. US (1992): Congress cannot order states to adopt laws or regulations
        1. Absent a direct threat (with no alternative) the states cannot (without federal authorization) impose discriminatory bans on trade with other states – the states can create such trade barriers
      2. Darby (1941) background rule which says the 10th amendment states a truism that the states retain all power that has not been granted to them by all is the state’s (so the states had some power) -- as long as congress does not violate other constitutional provision, it can regulate commerce regardless of its "real reason" for doing so (so it can stop child labor products at the border.
      3. Prinz (1997) – congress cannot commandeer local officials to do its own work (and the law ), in (NY. v. US) Congress can't tell local states what to do
      4. Congress’s options are
        1. Power to spend
          1. (e.g. a 5% reduction might be okay, but eliminating everything might be considered to be coercive) –general rule is to view spending to states that is condition in contractual terms (SD v. Dole)
            1. the spending power cannot be used too coercively
        2. Direct regulation of trade
        3. Positive rewards for states that live up to standards
          1. Exercise of the spending power must be in the name of the general welfare
            1. judge is saying that there has to be some sort of argument as to why this is good for the US
            2. can’t trick the states (have to be up front about the nature of what statutes are required)
            3. if they are unrelated to federal interests or particular national programs
              1. if you have a specific national program which is in the general welfare – for which you wish to restrict funds –
              2. Renquist’s test is that the spending program must related to a specific federal program (e.g. safe highways)
                1. Minority says that it must be a very close connection to a federal program
            4. can’t grant things if they are unconstitutional
          2. Authorizing states to enact discriminatory laws (given good behavior) (Prudential insurance company v. Benjamin)
  3. Congress’s powers (enumerated, implied and inherent)
    1. What Congress can’t do
      1. Congress cannot give up its powers (e.g. to states)
        1. Congress can’t grant it to them in exclusion of itself
      2. Congress exercise executive powers – even in the District of Columbia (or its connected areas)
        1. President is the executive officer for federal areas (Washington airports)
      3. Congress can’t directly appoint people to executive positions (Bowshar)
        1. but the courts and the president or cabinet members can
        2. President can request that someone else appoint them
      4. Congress (and the federal government) has no police power – so it can’t regulate for the general welfare.
        1. Of course, Congress can tax
        2. Small exceptions: Excluding people from sensitive areas (e.g., military facilities); and Confiscating property belonging to enemy aliens
    2. Guarantee clause: Congress’s and federal government’s constituency is the people – not the states, so it can act
      1. Congress can attempt to ensure uniformity to keep federalism (and guarantee clause -- to ensure as democratic a government as possible)
      2. by attempting to enforce the uniform election laws – Federal government can intervene with Federal democracy -- and ensure uniformity in election laws (US Term Limits)
        1. dissent claimed that if Congress wanted the power to regulate state elections, they would have taken it – rather than leave it to the enumerated powers clauses
        2. dissent also says that Constitution sets out a minimum
    3. Congress can tax and spend for the general welfare, but it can’t regulate for the general welfare (so long as it raises revenue) or it does not do something that congress could have done otherwise
    4. Express or "enumerated" powers, under Art. I, §8;
      1. Postal
      2. Aliens, naturalization and citizenship
        1. Congress can regulate aliens that is rationally related to national goals (should be a good policy reason)
      3. Power to legislate the district of Columbia
        1. Congress can’t act in an executive capacity in the district of Columbia, but it can act in a legislative capacity
      4. Elections (Congressional);
      5. Interstate Commerce;
        1. Commerce clause proper
          1. Historical development
            1. Gibbons v. Ogden: just touching the boundary of a state constitutes interstate commerce (channels of commerce) and can be regulated by congress
            2. Time when there was a distinguishable legal line between commerce and manufacturing
              1. Hammar v. Dagenhart: conditions of manufacturing reserved for states to regulate – whether or not the products crossed state lines. Hence, it was beyond the commerce power to regulate child labor (even if congress thought about this in terms of unfair competition)
                1. Congress was unwilling to force a state to reduce child labor
                2. The evil must be remedied before it leaves the state (by the state government)
              2. E. C Knight (1895): under dual-federalism, manufacturing was not under the power of congress
              3. Carter (tax on Underpaid coal miners) – even a tax was consider to be regulatory on internal state regulations
            3. "Current of commerce approach"
              1. Schecter case (chicken): supreme court refused to look at the matter in terms of economics, instead claiming that the stream of commerce ended with the chicken distributor who only did business locally
                1. Although chickens might be in the stream of commerce, the supreme court did not think a local chick distributor was affecting commerce, enough
                2. At the time, the court found that the employment practices did not have a sufficiently direct affect on interstate commerce
              2. Formally evils that ended before the state line could not be regulated as interstate commerce.
                1. At the beginning the logic was that congress cannot regulate that stream when the evil proceeds what is being carried into the stream of commerce (e.g. children and sweatshops, coal miners)
              3. Morality exception for evil at the end of the line.
                1. congress can regulate the stream of commerce when at the end of the steam commerce an evil lurks (e.g. lottery tickets and whores)
                2. Hokey v. US (Mann act) (1913) -- Caminetta found that the Mann act could effect things other than commerce (not constituting commercialized venues)
                3. 1903: Champion/Lottery ticket case: could regulate interstate commerce by stopping it as it transgressed between states.
                  1. dissent pointed out that the evil only existed in-state.
            4. Pre-Liberal approach
              1. Hypolith (1911): Congress has the power to regulate harms that were already committed and the product had already entered a state..
              2. US v. Sullivan: Congress can regulate things that are bad in commerce, even if they have already been shipped (Mislabled pills)
            5. Modern view
              1. Channels and instrumentalities of commerce
                1. Channels of commerce
                  1. Shreveport rate case: Congress could regulate channels of commerce if they effected interstate commerce.
                2. Instrumentalities of commerce: Congress can regulate the instrumentalities used in interstate commerce, even though the regulation affects a solely intrastate activity. (E.g., Congress could mandate that every truck used in interstate commerce must have a specific safety device, even though a particular truck is used only intrastate.)
              2. The "Cumulative Effect" theory
                1. Wickard v. Filburn (1942) -- if something is similar to that which happens in interstate commerce it can be regulated -- is a valid argument that something is affecting commerce
                2. Katzenbach v. McClung (small restaurant):
                  1. Restaurants purchases affected commerce
                  2. Court couldn’t find legislative intent to better commerce, but also was of a category (Wickard) that could affect interstate commerce
                  3. Defendant made unsuccessful argument that enforcement would hurt business (no proof, and Congress can regulate, even it hurts individual business, in the name of a greater moral or economic good)
              3. Effecting interstate commerce also known as Substantial Economic Effect theory
                1. 1937: NLRB v. Jones & Laughlin Steel Corp – turning point (Justice Roberts defected to liberal block of the supreme court)
                  1. A large interstate-acting company, could be prohibited from firing people who unionized
                2. Heart of Atlanta: visitors to a nationally-known hotel constitute a part of interstate commerce
                  1. The court will attempt to ferret out a legislative intent to regulate commerce – even if the intent was partially moral
                3. US v. Perez: Commerce clause extended to criminal activities (such as loan-sharking)
                  1. E.g. supreme court seems to be deferring to congress’s judgment in that if they say that it affects commerce, than it does affect commerce
                  2. Dissent: all crime would become a national issue – which it would
              4. Commerce-Prohibiting Technique – has to be reasonably related to a permitted end (the motive will not be scrutinized by the court)
                1. Darby (1941) – as long as Congress doesn’t violate any other constitutional provisions, than it can do whatever to contradict a state’s power. It can also do things regardless of the real reason behind them.
                  1. Darby establishes that one can regulate anything that is non-commerce and non-interstate, as long as you can show a relationship
            6. Post-modern view: Lopez
              1. Absent "commerce language" or any degree of obvious connection to Commerce (in the three above categories, save for commerce Prohibiting), the court will staike down an ambiguous case
                1. Court says that Wickert is still good law – and that where economic activity still affects interstate commerce, Congress won’t read a commerce part into things
                  1. Where economic activity substantially affects economic activity, legislation affecting that activity will be sustained
              2. Dissent said that we should uphold the federal as a rational basis, so long as there is a rational basis that an activity effects interstate commerce
                1. The case in Lopez was an isolated incident
                2. Saying that separating commercial and non-commercial activities is really a replica of direct and indirect effects on commerce
        2. dormant commerce clause – that the state is the sole regulator of interstate commerce
          1. exceptions to dormant commerce clause
            1. states can tax interstate commerce, because interstate commerce can be expected to cover a fair share of the state’s expenses
            2. a state can charge a nondiscriminatory ad valorem property tax on all goods in-state, including imported goods — at least as long as the goods are no longer "in transit."
            3. Price supports (under Eisenberg) can be considered to be constitutional if they are non-discriminatory
            4. Congressional permission to states to regulate
              1. Cooley: Federal government can grant the states the power to regulate parts of interstate commerce (e.g. permission to the states to regulate piliotage of rivers that require diverse local regulation - the act of 1789 which granted the power to the states to regulate pilots on the river was grandfather in through the constitution )
              2. Congressional irreversible delegation of the states of commerce powers is inherently unconstitutional
              3. Congress can pre-empt a state’s regulation of commerce
                1. a state license, perhaps can be ruled as unconstitutional because the federal government has a monopoly on regulating interstate commerce (Gibbons v. Ogden)
          2. Balancing Test for dormant commerce clause: There is a balancing test between state police actions and federal government interest in promoting the free flow of commerce (usually give states the benefit of the doubt as to the truth of the facts, but look at what the specifics of their arguments are)
            1. Pre-requisites to taxing non-resident individuals
              1. State cannot tax out of state activities
                1. State can tax its own residents and activites
                2. states can still vote to tax themselves a law cannot be non-discriminatory, but it can require that in-state producers receive a minimum price for their goods – even though it requires out of state purchasers to pay the price. Such laws, however, apply only in state, are not aimed at interstate commerce, treat it equally rather than discriminate against it. This isn’t a de-facto tariff, but it is the people in the state, attempting to establish a tax on themselves, and giving that tax to the producers. Eisenberg (1972):
              2. Tax must be fairly apportioned
                1. relate to services provided
                2. no possible multiple taxation
              3. The tax doesn't prevent the federal government from speaking "with one voice when regulating commercial relations with foreign governments."
                1. Art. I, §9 forbids Congress from taxing exports
            2. Must be non-discriminatory (Pike v. Bruce Church, Philadelphia v. NJ)
            3. Balancing between law effects the general welfare v. the burden on interstate commerce. (Hunt v. Washington State Apples Advertising commission)
              1. Purpose of legislation (in order to be valid) must be legitimate health and safety concerns that there must be no other way around, than to enact trade restriction on. (a city cannot say that they are not going to allow a business to do business with out of the businesses).
              2. E.g. the primary purpose of the legislation cannot be economic.
                1. Quarantines might be okay – immediate public health and safety issue
                2. must be no reasonable alternatives to the law – dissent said that the supreme court shouldn’t be looking at the question of facts as to what is reasonable (Maine v. Taylor also known as Batefish case)
              3. examples of balancing test
                1. (Bib – mud flaps) It can be discriminatory if you can show that you can obey two state’s laws simultaneously
                2. (South Carolina state highway) Maximum length could be considered to be a local concern and subject to state regulation
                3. (Southern Pacific Railroad): railroads are national, and no pressing safety concerns
                4. (Dean Milk with 75 mile radius) States can regulate for health concerns so long as not discriminatory against foreign states
                5. CTS: Whenever there is a law that is non-discriminatory, but has a burden on interstate commerce – if it is non-discriminatory, it should be upheld -- burden is on the ability to take over a foreign corporation (allowing the states to make legal products) (note the Congress decided not to regulate this area). This seems to be allowing states to compete among each other for legal rights.
                  1. CTS: According to Scalia Congress should be the ones to judge the overall governmental interest– because even though something is traded nationally, the court should look to congress for national regulation of securities laws (and they have the opportunity to do it)
          3. Market participant exceptions to the dormant commerce clause
            1. Wirtz (1968) States were held to the same standards as private employers -- federal government could act to override important state interests
            2. National League of Cities v. Usery (1976 -- overruled in 1985): Congress cannot regulate what the states can pay (or how they treat) employees who are doing the essential state functions
              1. States immune from regulations that address the "states as states"
              2. regulated attributes of state or local sovereignty
              3. directly impaired the ability of state or local government to structure operations in areas of traditional function
              4. was not related to an overriding federal interest
              5. Blackmun’s concurring opinion: the congress must show that its commercial interests were demonstrably greater than the state’s claim for an exemption whenever a state alleged that the application of federal commercial regulations to it constituted an impairment of its sovereignty
            3. Garcia (1985): States have the ability to persuade congress (not the court) change the federal laws by the national political process (so they shouldn’t complain) -- congress can changed
              1. No immunity of states from an otherwise valid commerce law
              2. about how they pay people working for the state, when it is doing things that the state doesn’t have a monopoly on (parking lots) --
                1. only one case where federal law was found to violate the 10th amendment
              3. another way to put this is that laws affecting both public and private commercial activities will be review under the traditional commerce power tests"
              4. states are still protected from actions that truly questioned their sovereignty
        3. exceptions to the market participant exception
          1. State Can’t impose "downsteam" contractual limitations as this becomes regulation (South-central timber development inc.)
            1. If something is a raw-resource than it comes close to regulation
              1. Finished products are different
          2. Broader effect: Burdens on commerce affected more than just those involved in an immediate transaction within the state
            1. Congress doesn’t want state’s rules to have a significant effect on foreign commerce
              1. Art. I, §9 forbids Congress from taxing exports
      6. Defense and Spending for General Welfare;
        1. argument has been made that the war powers act extends as far as domestic affairs that happens as a result of the war (e.g. restrictions on rent) (Woods)
          1. Jackson--war powers be engaged with haste and without thinking about it too much: Court can make inquiries as to whether there is a war going on at the moment -- passed in wake of criticism that treaty making power would be excessive: Says that everything has to be by laws (not just treaties)
          2. This could be a flimsy way to get rid of federalism
        2. External (Foreign) Affairs
          1. treaties are considered equal in status to statutes
            1. self-executing treaties
              1. often include executive agreements
              2. can be "implied consent" of congress negotiate and make agreement (Dames and Moore v. Regan)
            2. non-self executing treaties
              1. congress can pass laws pursuant to treaties (that it otherwise couldn’t do)
              2. limitations on treaties
                1. In treaties individual rights (such as jury trials, etc.) cannot be violated – but can violate state rights -- (Reed)
                2. Is this a proper subject matter for a treaty (Holland)
                3. A statute trumps a valid treaty, and vice-versa
                4. The treaty deals with matters that are properly subject to negotiation with a foreign country (which is almost always true, since foreign countries normally enter into treaties that concern them); and
              3. The Senate ratifies it by a two-thirds margin (Art II, §2);
      7. Taxation;
      8. Admiralty;
      9. Bankruptcy: States can’t interfere with federal government rules or intent on bankruptcy
      10. Lands owned (federally owned lands under property clause);
        1. The nature of the property indicates that the method of disposal is appropriate;
        2. The use is in the public interest; and
          1. Its use must not be designed to interfere with matters reserved to regulation by the states.
      11. Eminent Domain.
    5. Implied powers, under the "Necessary and Proper" clause, Art I, §8, and
      1. Congress can do what is necessary and proper – (question of what is convenient)
        1. In McCullah: Article I, §a – shall have the power to lay and collect taxes, to pay the debts, the regulate commerce – raises the question of what is necessary or convenient
          1. If the government is acting in a non-governmental fashion, the state government might be supreme
      2. Civil Rights -- necessary and proper clauses of the 13, 14th, and 15th amendments
    6. Inherent powers; that is, powers inherent in the concept of national government. The principal inherent power is the foreign affairs power. – Inherent powers are, in effect exceptions to the 10th amendment (such as foreign affairs)
      1. 10th Amendment – what isn’t specifically reserved for Federal Government, is the province of the states (rather useless)
        1. dual federalism is defined as using the 10th amendment to allow the federal government to regulate some activities and not others (which would be reserved for the states.)
      2. foreign relations, and the need to speak with one voice
    7. Congress’s limitations on its administration
      1. Adjudication v. legislation
        1. The key distinction between adjudication and legislation is – the issue is that legislation is prospective, and adjudication is respective
          1. Applying a rule to an existing set of facts is the function of judges.
          2. The attorney general and others are looking at Chadha’s case –
        2. can’t be executive action trumping it -- something that changes one’s legal rights and obligations is a law – no matter how it is couched (even as an exemption)
        3. legislature may not intervene in judicial matters (Powell in Chadda)
          1. but a veto of a regulation, not an adjudication would be ok
      2. Judicial review has to be final – can’t be executive action trumping it -- something that changes ones legal rights and obligations is a law – no matter how it is couched (even as an exemption) -- Chadda
        1. Bicameralism: Bills have to go through both houses
        2. Presentment: Bills have to be presented to the president for signing.
          1. All that matters is that the president has been given an opportunity to sign it.
        3. Dissent in Chadda: things are now two complex to be completely second guessed by the congress
          1. What could really be happening with legislative vetos is that new laws could be passed, doing bicameralism and presentment in the opposite order -- really unconstitutional based on Chadda
    Please visit
  4. Taxing power
    1. Pre-new deal case
      1. Child Labor Tax Case (Bailey) in 1922 -- An oppressive tax (that bans) can be valid – even if it is enforced by the secretary of labor, and is a penalty on "knowingly" committing some evil
    2. taxes can’t violate other constitutional amendment
    3. today’s standard
      1. what the tax may be, it needs to generate some revenue
        1. Some taxes may be policy-neutral –
          1. There are taxes and tax-exemptions that are policy-related
      2. 1937 – Kahringer: Taxes, must at least be framed in terms of revenue raising (e.g. not raising fifth amendment concerns)
      3. There are other indicia
        1. Secretary of labor v. secretary of treasury
        2. There is a mens-rea requirement (e.g. they have to know that they were children)
        3. The court finds that there was no real revenue concern – but just a way to get back a something they do not like
  5. Separation of powers
    1. Solely Executive officials are removable only by impeachment. Bowsher v. Synar
      1. Congress can’t make the president bound by his inferior officer or an officer appointed by the Congress
        1. Appoint and dismissal of executive officials
          1. Executive officials are appointed by the president (and confirmed)
            1. Inferior officers only need be appointed by the president
          2. Appointment of Comptroller was suspicious because the president had to take three names provided by the presiding officers of the house and senate, submit three names to the president, who can chose one of the three names.
            1. The comptroller general is – the difference between the comptroller general and other officers is that there is a list of three.
            2. Can’t delegate legislative authority to one individual. If, on the other hand, the Comptroller general is lawmaking – then you have an improper delegation of congressional to one individual, which is unconstitutional.
              1. Congress can vest in the judiciary the power to appoint "inferior officers" who are "directed and supervised at some level" – whose appointment Congress can vest in the judiciary (which it controls)
                1. Independent counsels technically serve at the whim of the executive branch – and they have the power to appoint or not to appoint. (Morrison v. Olson) -- Some degree of inferiors constitutes an inferior officer
                  1. Note: have to look at appointment, termination, and purpose
                2. Scalia’ dissent – not a good idea to tamper with the relations between the three branches
            3. Blackman’s dissent in Bowsher is that a comptroller general is really an executive officer and Congress’s power to take out isn’t a huge intrusion
        2. Dismissal of purely executive officials
          1. Executive regulations for removal of officials have to be blocked
          2. Can only be dismissed by president at pleasure or congress by impeachment
          3. The fact that congress can remove the person means that he is answerable to the executive branch for other than impeachment
        3. Appointment of quasi-legislative officials
          1. Quasi-legislative officials (such as the FTC) – the president can remove, but the congress can block
            1. For an administrative agency like the FTC, which was created by an act of Congress that lists the term of office, removal may be limited to specific causes enumerated in the statute creating the agency.
    2. Limits on delegation by congress to president (e.g. President can legislate)
      1. The power must actually be Congress's in the first place (thus, Congress could not create a commission with law-enforcement powers, because the legislature doesn't possess the power to enforce laws; only the executive branch does);
      2. The power must be "delegatable," as mentioned above; and
      3. Congress must establish adequate standards to govern how the delegated power will be executed (although these can be very broad, e.g. "public convenience and necessity").
    3. Seperation of powers: when judges were appointed to aid in the legislation process – it was challenged as judges making law, violating separation of powers (Mistretta – challenge failed)
      1. They could be both making the law, and then ruling upon them
  6. Presidential power
    1. Jackson’s concurrence of the president’s powers should
      1. President could act if authorized totally by congress (articles one and two) -- maximum scrutiny
        1. Has to be something the congress has (if it falls within the powers of the federal government)
          1. Once it is within the federal government's power than the president prevails
      2. Neither authorized nor denied (congressional silence) -- balancing the competing interests of the president and congress
          1. He can rely on his own powers plus the twilight zones
          2. Congressional inertia
      3. When he acts against the express rule of congress -- if he acts on his own powers -- minimum scrutiny
    2. Privileges of the president
      1. President enjoys absolute immunity from civil damages
      2. Executive privilege based on
        1. The doctrine of separation of powers, and
        2. The inherent need to protect the confidentiality of executive communications.
          1. Criminal prosecutions trump theses powers
          2. If the communications involve military, diplomatic, or national security then issues have to be clear and absolute
    3. Presidents exclusive foreign affairs powers
      1. Executive power to act in foreign affairs: executive agreements are supreme are valid based on implied acquiescence of the president; valid federal statutes passed subsequently can override them
        1. An individual state does not have power to contravene a valid enactment in the area of federal affairs
      2. Recognize (and withdraw recognition of) foreign governments (Goldwater v. Carter)
        1. Receive Ambassadors and other public ministers;
          1. President’s power to receive ambassadors can be widely construed as giving him power to enter into executive agreements that may trump the constitution
      3. Act on the nation's behalf in day-to-day dealings with foreign governments.
    4. If the executive is delegated powers by the congress – the president has to use them to regulate matters that are directly affected by that mandate
      1. Inferred powers (Dames v. Moore): even without specific authorization, congressional acquiescence to presidential action may create an inference of congressional authorization – from a rather tenuous act.
        1. The president can settle international-doemestic disputes by using his inferred powers to cancel judicial claims -- using executive orders to settle judicial claims
    5. War powers and what is inferred by them
      1. Congress, in delegating certain war powers to the president might have implied that the president can institute an emergency draft
        1. Congress can act to ensure all necessary and proper acts after a war – including regulating prices after the war
      2. Can make treaties with other countries that go beyond the scope of congress’s power
        1. War Powers: The President has broad legislative power in "theaters of war," pursuant to which he can, for instance, set up military governments in occupied territories
        2. Moher v. Macnamara – suit over Vietnam, court denied cert saying that it was a political question
          1. Standing questions
        3. War powers act shifts between categories. Congress has limited the power of the president to declare war by inserting a reporting requirement, and deadlies for authorization and deabte – the war powers acts seem to be giving the president power that he doesn’t have under the constitution.
          1. War powers act doesn’t apply to non-wars, and short wars.
          2. Court dismissed dessert storm/shield case based on ripeness – as the Plaintiffs claimed that a war was inevitable. (Delums v. Bush)
    6. National Emergency: The President has limited legislative powers in the case of a national emergency (e.g., war). The scope of such powers is unclear, but they’d be strongest if Congress had authorized him to act on a matter, weakest if he were acting contrary to Congress’s expressed will, and somewhere in the middle if Congress hadn’t taken action on the matter. Cf. Youngstown Sheet & Tube Co. v. Sawyer (1952) (which held unconstitutional the President’s attempted seizure of steel mills to prevent a strike during the Korean War; the war was not considered sufficient to constitute an "emergency").
      1. Dissent feels that in emergencies, the President may need to protect the status quo
        1. The executive branch is the leading branch in foreign affairs, plus it has the power of the military
          1. The other scenario would be for congress to go to war,
    7. Veto (Quasi-legislative): When a President vetoes an act of Congress, he's performing a legislative duty; -- this is a quasi-legislative function
      1. Line item veto unconstitutional because (N.Y. v. Clinton)
        1. Would be the power to change the text of duely enacted statutes – and to change the bargaining procedure for bills
        2. This follows from the impoundments that Nixon made – which were constrained by legislation
          1. If the appropriations are specific the president can’t impound the funds
          2. The president can cut expenditures that congress doesn’t require be spent
  7. Judicial Branch
    1. Legal legitimacy of the supreme court
      1. Supreme court is in the constitution as being supreme, but lower court are created by congress
        1. Article III created the Supreme court
          1. Other possibilities of relationships between supreme court and rest of federal government -- in other countries
            1. No authoritative interpreter of the constitution at all
              1. Constitution is nothing but a statement of principles
              2. Each branch will interpret the constitution on its own
        2. Article I: Constitution creates lower federal courts that are under the domain of the congress, but that domain is checked by the supreme court
      2. Broad view of supreme court’s role: "Judicial supremacy" interpretation of Marbury v. Madison -- supreme court is a branch of government is one of the three branches and can decide at will whether or not to decide cases
        1. Cases still need to be based on the federal constitution
          1. Political questions and justiciability arise
            1. Issues the Constitution commits to another governmental branch (based on separation-of-powers principles); or
              1. Taxes included
            2. Issues the judicial process is inherently incapable of resolving and enforcing ("prudential" concerns)
            3. Court may still only have the power to decide justiciable issues
          2. Examples of non-justiciable: Military
        2. binding of supreme court on non-adjudicated laws
          1. Rulings becoming political doctrine? (Dred Scott)
            1. Lincoln/Meece: said that ruling (abortion/Dred Scott) scope of rulings was as narrow as possible (e.g. individual cases), and that legislatures and public was not bound to act according to them in future votes
            2. Stare decisis: doctrinal decision stands and Supreme court binding on individual states
              1. Cooper v. Aaron: Constitution is binding on state legislative, judicial, and executive officials : Governor is saying "he isn’t a judge" -- in dictum the court says that the governor is a judge
                1. The state cannot interpose its own interpretation of the federal constitution
                2. The states are bound by the federal constitution
          2. Suspensions of laws v. nullification of laws (erga omnes)
            1. Lochner: enforcement of laws suspended if supreme court overrules
              1. What the supreme court does is to order the executive not to enforce
      3. Narrow: Each branch is authoritative in separate areas: narrow meaning
        1. Court must follow the constitution in deciding cases, and only decide the cases before it without deferring to other branches
        2. but other branches of government will also interpret the constitution and do as they please
    2. Hamilton’s idea that the court is the least dangerous branch, hence cannons of constitutional interpretation become necessary to justify a ruling
      1. interpretivists
        1. Text of the constitution – one should look at the text, and that will solve the dispute
          1. For instance, Art. 1 §2 for example, the second clause says that no person shall be a representative
        2. Framers’ intent
          1. E.g. does it mean that the state ether shouldn’t have an established church, or that it should not aid religion
          2. Question is whether it means financing various religious activities
          3. Specific and general intent
            1. One could interpret it to mean that there is no free speech over radio and TV
          4. Question whether it is majority of framers, or one particular framer
          5. Circumstances that would reveal what the framers were thinking
        3. Constitutional theory -- structural theory argument
          1. Not a specific part of the text, but a reference to an article or the intention as a whole
            1. Congress has specific limited and enumerated powers, in all other places people have no other alternative –
              1. Marshall said absolutely necessary
      2. Non-interpretivists
        1. Precedent: why should you rule for Plaintiff
        2. Value arguments – social policy arguments, moral arguments, etc.
          1. Examples
            1. Abortion
            2. Economic disaster inferred from the commerce clause
    3. Jurisdiction of supreme court (note normal Civil procedure rules of diversity and subject matter jurisdiction)
      1. Original jurisdiction of the supreme court:
        1. Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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
          1. Congress has no power to restrict or enlarge the original jurisdiction of the Supreme Court.
      2. Appelate jurisdiction of the supreme court
        1. Ex parte McCardle (1869). Congress is expressly granted the power to regulate the appellate (but not original) jurisdiction of federal courts in Article III, § 2 of the Constitution.
          1. U.S. v. Klein (1872). While it’s not clear how broad this power is, it’s not unlimited; therefore, it’s possible that even if Congress eliminated Supreme Court review of certain types of cases (like abortion cases, here), it would have to permit some lower federal court to retain jurisdiction over such cases.
        2. Congress changes in the supreme court’s jurisdiction can only must be neutral -- but can’t force the court do something unconstitutional – Congress can take away what Congress has given
          1. Congress is bound to honor the text of the constitution
          2. (ex Parte Yager) Congress can grant and take away supreme court appellate Jurisdiction – but original jurisdiction would still rest with the Federal courts
          3. (ex-parte Klein) Congress can’t enact legislation controlling the jurisdiction of the Supreme court to control the outcome in a particular case
            1. Congress can’t tamper with the statute of limitations to control finality of a decision
          4. (ex-Parte McCardle) Appellate Jurisdiction of supreme court: If the supreme court has appellate jurisdiction, over a case that would be heard in a lower court created by congress, then congress can limit the supreme court’s jurisdiction.
        3. Mandatory appellate jurisdiction of the supreme court
          1. Congress wiped out the Supreme Court’s general mandatory appeal jurisdiction in 1988; the two statutory situations above are the only remaining ones where an appeal must be heard.
            1. The Supreme Court must hear appeals of decisions made by three-judge federal district court panels granting or denying injunctive relief, under the statutory command of 28 U.S.C. §1253.
            2. The Supreme Court must make some sort of determination whenever a Court of Appeals certifies to the Supreme Court "any question of law in any civil or criminal case as to which instructions are desired." 15 U.S.C. §1256(b). The Supreme Court must then either give binding instructions or require that the entire record be sent up for decision of the entire matter in controversy.
      3. Lower court’s cases that were based on adequate and independent state grounds are not justiciable
        1. (Martin v. Hunters Lessee): Supreme court has right to review state court decisions, so long as a federal question is presented in the appeal . (parties do not matter) --- supreme court doesn’t want to completely trust interpretation of federal law to state judges]
        2. Prongs to test as to whether the supreme court has jurisdiction
          1. Has the highest appellate court (willing to rule on the case) of a state ruled on the case
          2. Does the case involve questions of both federal and state law
            1. Michigan v. Long: Supreme court cannot review if the decisions is based completely on state law – but a hint of federal common law (or use of federal interpretation in interpreting state common law brings it into supreme court jurisdiction)
        3. Supreme court will respect (and not judge) greater personal rights granted by the state, so long as they do not refer to federal law. (Martin v. Hunters Lessee)
          1. If the state court admits to violating federal law, supreme court will take it
          2. Questions
            1. Supreme court won’t rule state constitutions(and state constitutional interpretations to be invalid)
            2. If the state law or action was permissible under state constitution, then a supreme court appeal is moot
            3. the only question is whether the state law or action was permissible under the federal constitution.
          3. If a state court mentions that it interpreted the federal constitution, than the supreme court will decide the matter (Michigan v. Long)
      4. Congress may grant concurrent jurisdiction to lower federal courts. That is, Congress may give the lower federal courts the right to hear the same kind of cases (e.g., cases in which a state is a party) as fall within the Supreme Court’s original jurisdiction.
        1. NOTE: Congress has the power to change federal appellate jurisdiction
          1. U.S. v. Klein (1872): These Change must be made made in a neutral manner, without intent to decide the merits of the case through the change in jurisdiction.
          2. Congress has now power to enlarge the power of the supreme court
    4. Standing for supreme court (need to theoretically assume claim is true so that the principles of federal law are fully and vigorously represented at the court)
      1. Legal requirements (cannot be waived by court)
        1. Injury in fact? -- need to look at EVERY Plaintiff (and not 3rd parties)
          1. Congress can create injuries though statutes (such as through violations of regulations) -- but just having a procedural right doesn’t mean an injury
          2. (Bennette v. Speer) There should be little uncertainty of the injury
          3. (Thatcher) Chill in political activity can be an injury
        2. Needs to be a case or a controversy (but can be creative in creating a legal controversy)
          1. No advisory opinions
            1. To get an advisory opinion about treaty obligations, need to get foreign state to file a claim (Rescue army)
          2. Parties need to have adverse legal interests about a concrete question
            1. Raines v. Byrd: Institutional standing may be denited to those, who are themselves servants in the very institutions involved. Hence, senators won’t have standing to sue when something goes against them, as they are not speaking for their entire class (e.g. all senators)
          3. To resolve something that comes from the state courts there needs to be something that can’t be resolved though non-constitutional means
            1. Supreme court won’t interpret a ruling on state’s own constitution alone (will review close cases)
            2. Supreme court will review cases connected with important federal interests
            3. Supreme court will review state procedural questions if
              1. The procedural rule doesn’t meet the requirement of "fundamental fairness," and either:
                1. The state ground is motivated by bad faith intent to deprive litigant of a federal right, or
                2. Obstacles posed by state law unreasonably interfere with the vindication of a federal right.
        3. Mere denial of a right is an injury in fact
        4. Causation: Is the defendant the cause (must be cause) – have to assume that the allegations are true
          1. When you look at causation, one must say that but-for the action of this defendant, the Plaintiff would have gotten what he or she would have wanted
          2. There are other Plaintiff’s who are also providing it, hence one is failing the causation requirement
            1. E.g. No one has standing to bring a case about a violation of the guarantee clause (Art. IV, §4)
        5. Mootness and ripeness
          1. Mootness
            1. (Defunes v. Olegarde) Mootness can be gotten around by saying that the injury is likely or possible to happen to the same person (or similar people) again
              1. (Roe v. Wade)Abortion is an exception to the mootness doctrine
          2. Ripeness
            1. Speculation that something would "at some future" date use data against them.
              1. (Hatch act): a desire to act contrary to the rule might be indicative of mootness
              2. (Laird v. Tattem): Has to be real injury not just a fear of future punitive action
            2. Injunctive: But there can be injunctive relief if it is getting close to harm (irreparable) happening
              1. There is a wrecking crew in front of your apartment – and you think that it isn’t legal, although no harm has yet occurred
            3. Declaratory
              1. Hatch act re: political participation by civil servants– court said that the controversy wasn’t ripe, as there was no claim that the no one had been injured – so they wouldn’t’ declare the constitutional relief
                1. It might not be a flimsy decision – because they haven’t actually been injured yet
                2. There might not be the appropriate constitution mechanisms in place
            4. Question of association standing as well
              1. (Adler) If system complained of, could have effect on the group, it may still be ripe
        6. Are they suing someone who can provide a remedy?
          1. Courts providing writs of mandamous can be remedies, but if telling another branch of government that things cannot be remedied, this might present a non-justiciable question
    5. Prudential requirements (can be waived by court)
      1. Generalized grievance do not provide grounds for standing (need actual grievance – (Defenders of Wildlife, and Frothingham v. Mellon )
        1. Exception for taxpayers
          1. Federal taxpayers. Rarely can a taxpayer sue: However, in theory, a taxpayer has standing if he meets this two-part test:
            1. The challenged federal action arises from Congress’ power under the Taxing and Spending Clause of Art. I, §8 (NOTE: the taxpayer can’t rely on expenditures incidental to some other power in order to obtain standing); and
            2. The challenge expenditure violates a specific constitutional limitation on the taxing and spending power (e.g., the Establishment Clause of the First Amendment, which was enacted in part to ensure that the taxing and spending power wouldn’t be used to benefit one religion over another).
              1. (Flast v. Cohen) Note that the only case in which the Supreme Court ever recognized federal taxpayer standing was (challenging federal expenditures to parochial schools) — the Supreme Court has denied standing in every other case, suggesting strongly that Flast is limited to its facts.
              2. (Allen v. Write) Causation necessary Plaintiff need to show that the government, by its action would have made an appreciable difference in the wrong -- and (in Dicta) the Plaintiff could show that one branch of the government was frustrating the aims of another
            3. laws designed to protect classes of people (such as voters) would grant standing
          2. State taxpayers.
            1. The Supreme Court has not determined the standing status of state taxpayers. Lower courts cases suggest that a state taxpayer has standing to litigate in federal court when the state spends a non-trivial amount of money. A further requirement for the bringing of these cases is that the suit must not be barred by the Eleventh Amendment (note that claims against political subdivisions of the state, and allegations that an official’s acts violate the plaintiff’s constitutional rights are not barred by the Eleventh Amendment).
          3. Municipal taxpayers. Municipal taxpayers have standing; they are deemed "directly injured" by improper expenditure of the town’s tax dollars.
      2. 3rd-party constitutional right question
        1. Standing to sue other states. On behalf of its citizens as "parens patriae," to protect its citizens’ comfort, health, and property rights (including environmental damage cases). Note that this covers suits against other states, not the federal government
        2. An association will have standing on behalf of its members if the following three requirements are satisfied:
          1. The members would have standing;
            1. (Allen v. Wright) Members would not have standing if the injury alleged to be suffered is alleged be suffered by all members of the group, because to recognize such an injury would create a cause of action on behalf of any member of the group across the country – would be coming close to a grant of general citizen standing
          2. The interests the association seeks to protect relate to the association’s purpose; and
            1. Note: if a statute was designed to protect a large class of people (such as voters) the voters would have standing
          3. Neither the claim itself nor the relief requested require the individual participation of association members.
        3. Economic relationship between the Plaintiff and those whose rights are abridged
    6. Prudential Justiciability of cases --- not everything that is political is a political question (under narrow reading Marbery, these cases would have to be heard)
      1. Three strands of the political question doctrine
        1. Textually demonstrable question of political commitment
          1. Text indicates that this is to be dealt by another branch of government
          2. To a coordinate political department, it might not be textually demonstrable to decide this
          3. When there is a complete lack of judicial standards to decide it, the courts should refuse to decide the case
        2. Lack of judicially manageable standards
          1. If the court is deciding the procedure of a political deciding (e.g. ratification of an amendment) it can refuse based on a Lack of judicially manageable standards (Baker v. Carr)
        3. Prudential standard
          1. Things that are too controversial, difficult to enforce,
            1. things that might embarrass another branch (but not a state government)
              1. court will enforce voting rights based the equal protection clause and protection from dissolution of a vote.
                1. (Powell) Court has prevented congress from enacting additional seating requirements
              2. Court has prevented states and congress from adding additional qualifications (e.g. US Term Limits v. Thorton) for Senators (Term Limits and Powell)
            2. (Nixon) Internal workings of Congress might (e.g. impeaching Federal judge) might embarrass other branches
        4. Need to adhere to a political question already made
      2. Politically "too hot to handle"
        1. Foreign relations
          1. Treaties can be terminated unilaterally by president (Goldwater v. Carter)
        2. Dates and duration of military actives
        3. Validity of enactment (ratification periods for proposed amendment)
Back to the Law Outlines of CASE.TM