Constitutional Law

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Constitutional Analysis
Four Factors:
Text of the Constitution
Structure of Government
Intent/History of the provision
Policy reasons

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Case and Controversy Limits

on SCOTUS Power
Informal Constraints:
Political Capital Andrew Jackson v. Richard Nixon

Congress sets SMJ of Courts

Ex Parte McCardle
Article III: SCOTUS has appellate
jurisdiction with such exceptions as
Congress shall make. SCOTUS: Congress
may restrict appellate power of federal
courts so long as they dont violate
another provision of the Constitution.
BUT the Constitution grants: The judicial
power of the United States is extended to
all cases arising under the Constitution.

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Mootness
Defunis
White man claimed he was victim of
discrimination by school, but was about to
graduate. Court declined to hear the case
b/c individual no longer had an interest.
Roe v. Wade
Mootness is a prudential rule, not a
constitutional rule. EXCEPTION: If a case is
capable of repetition, yet evading
review it may be appropriate to decide.
Every case like this one will always be
moot, so must decide the case anyway.

Baker v. Carr
The court may not answer political
questions. If a case has one of these
qualities, it cannot be decided by a Court.
Six Factors of Political Questions:
(1) Constitutionally demonstrable textual
commitment to another branch
(2) Lack of judicially manageable standards
(no law the court can apply to the
question = discretionary question)
(3) Inextricably entwined with non-judicial
policy questions (inappropriate policy
issues)
(4) Would show lack of respect for another
branch of government
(5) Unusual need for continued adherence
to decision made (Need quick resolution)
(6) Need for government to speak with a
unified voice
Powell v. McCormack
Only Qualifications of members of
Congress explicitly in Const. are age,
residency. This case did not address listed
items, so it was not textually committed to
another branch, NOT political question.
Nixon v. United States
Federal judge convicted of perjury by
Senate argued it was improperly done.
SCOTUS: it would show lack of respect for
Senates authority to impeach, no
judicially manageable standard, WAS
political question.
Goldwater v. Carter
Dispute whether to recognize Taiwan.
SCOTUS: we must speak with unified voice
on treaties, foreign policy committed to
executive, to recognize Taiwan is nonjudicial policy, WAS political question.

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Powers of Federal Govt.

Implied Powers

United Public Workers v. Mitchell

Hatch Act prohibited public workers from
political activity. Ripeness depends on
sufficiency of facts must be enough facts
to create a real controversy and full
situation to decide. Law punished an act
but had not yet been enforced, so no case.

McCulloch v. Maryland
The federal government is limited to
pursuing the goals/purposes it is assigned
in the Constitution. However, it may use
any means to achieve those goals.
Necessary & Proper Clause:
(1) If the end (purpose) is a legitimate one
for the federal government;
(2) The means being used are plainly
adapted to achieving that end;
(3) The means are not prohibited by the
Constitution;
Then the federal action is constitutional.

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Standing

Commerce Clause Powers

Ripeness

WHO may bring a case?

Article III Requirements:

Political Questions

(6) Organizational Standing

Sierra Club v. Morton
For an organization to have standing:
(1) A member must have suffered an
injury; AND
(2) The suit is relevant to the purposes of
the organization.

(1)Concrete particularized injury

Lujan v. Defenders of Wildlife
Injury must be actual, imminent, and not
hypothetical or conjecture. must have a
stake in the outcome.
Los Angeles v. Lyons
A future injury may be adjudicated where
the injury is imminent and likely to
happen. Real and immediate future...
Sierra Club v. Morton
Even an aesthetic injury is cognizable.
(2) Causal Connection
Lujan v. Defenders of Wildlife
A connection between the injury and the
conduct complained of which is fairly
traceable to the defendant.
Massachusetts v. EPA
Even if EPAs failure was only part of the
cause of injury (global warming), there
WAS cognizable causation..
(3) Injury is Redressable
Lujan v. Defenders of Wildlife
It must be likely and not speculative
that the injury will be redressed by a
favorable decision. Opposite of mootness.

Prudential Requirements
(4) No 3rd-Party Claims
Craig v. Boren
Party bringing a claim must have real
motivation; a dispute to be adjudicated.
This seller of alcohol had interchangeable
economic interest with underage drinkers
even if she was not a target of statute.
(5) No Generalized Injuries
United States v. Richardson
Taxpayers do not have general standing to
attack laws for secret spending. Should be
addressed electorally, not judicially.
BUT: FEC v. Akins
Congress can authorize citizens to sue on a
generalized injury because it is only a
prudential limit. There must still be an
injury, but then there would be standing.

Three Heads of Commerce Power:

(1) Instrumentalities of commerce
(roads, navigation, internet, telephones,
etc.) Gibbons, Shreveport Rate Case
(2) Terms and Conditions of Border
Crossings (plenary over channels of
interstate commerce) US v. Darby
(3) Activity with a substantial effect
on interstate commerce:
NLRB v. Jones & Laughlin Steel
If an activity has a substantial effect on
interstate commerce, Congress has the
authority to regulate it.
If the activity is obstructing interstate
commerce Congress certainly has the
power to reach inside states to regulate it.
United States v. Darby
Do not divide production into segments to
determine an interstate effect of just
some parts. All production is considered
together.
Wickard v. Filburn
If an activity has an aggregate substantial
effect on interstate commerce, Congress
has the authority to regulate it. Aggregate
all instances of the regulated activity
across the nation not just the single act
done by this party.
Heart of Atlanta Motel v. U.S.
If an activity falls under the commerce
power, Congress may regulate the activity
for any reason; in this case, a motel can be
regulated to prevent discrimination.
Katzenbach v. McClung
SCOTUS will generally defer to legislative
findings of fact about a substantial effect
unless there is clear error.

Lopez v. United States

The activity being regulated must first be,
in and of itself, commercial or economic in
nature. Commercial Nexus. This is not
subject to aggregation this instance must
be commercial or economic act.
When a law regulates area of traditionally
state powers, Court will look more closely.
U.S. v. Morrison
Violence against women battering a
spouse is not a commercial or economic
activity, even if it has an aggregate
substantial effect on interstate commerce.
Gonzales v. Raich
Growing marijuana at home is a
commercial activity, and has an aggregate
substantial effect on interstate commerce.

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Taxing and Spending Powers

Article I, Section 8, Clause 1
United States v. Kahriger
Congress has the unrestricted power to
tax, regardless if it is for revenue
production or regulatory reasons.
South Dakota v. Dole
5 requirements for spending by Congress
with conditions attached:
(1) Spending must be in the general
welfare Court defers to Congress as to
what this means.
(2) Spending cannot violate other
Constitutional provisions.
(3) The condition attached to receiving
funds must be unambiguous on the face of
the bill States must know exactly what
they agree to do, what choice they make.
(4) Condition attached to receiving funds
must be RELATED TO the federal
interest, or purpose of spending program
in this case, drinking age was related to
Congress spending on highway safety.
(5) The spending and conditions cannot be
too coercive of the states in this case,
removing 5% of highway funds was not
coercive, although a larger number might
have been coercive. The line between
coercion and temptation is very fuzzy.

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War and Treaty Power

War Power
Article I, Section 8, Clause 11:
Congress has power to declare war, raise
& support armies, etc.
Woods v. Cloyd Miller Co.
Congress may invoke the war power to
cope with a current condition of which
the war was a direct and immediate
cause.
Treaty Power
Article II, Section 2:
President has power to make treaties,
which must be ratified by Senate.
Article VI:
Treaties under authority of the U.S. are
supreme law of the land.

Missouri v. Holland
A statute to carry out enforcement of a
VALID treaty is a necessary and proper
means of executing a legitimate end,
regardless of whether Congress had the
power otherwise, IF the treaty was valid.
(1) A treaty must be properly entered into.
President must make the treaty, Senate
must confirm.
(2) A treaty must govern proper subject
matter for an international agreement.
The subject matter can be protected only
by national action in concert with that of
another power.
(3) A treaty may not violate express
provisions of the Constitution.
Reid v. Covert
Power to make treaties was expressly
given to the federal government.
Therefore, statutes to implement treaties
can never violate the 10th Amendment
even in areas of normal state powers.

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10th Amendment Limits on

Federal Power
WHAT Congress may control:
Garcia v. SAMPTA
Since it is impossible to define what
traditional or inherent state functions
are, there is no judicially manageable
standard for WHAT Congress is prevented
from regulating because the power is
reserved to the states. SCOTUS will not
blur the line b/w national and state policy.

HOW Congress may control:

New York v. United States
Congress may NOT compel the states to
enact and enforce State legislation. States
must obey federal regulation, but if
Congress cannot enact a regulation
directly they cannot force the states to
regulate instead.
Printz v. United States
Congress may NOT enact laws which
commandeer the enforcement powers of
state or local executive officials. The
federal government has its own
enforcement abilities; it cannot force State
officials to act on behalf of Congress.

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Const. Limits on State Power

Preemption
Conflict Preemption: both federal and
state governments have passed statutes.
Direct Conflict
Fla. Lime & Avocado Growers v. Paul
Direct conflict: If it is physically impossible
to follow both laws, the federal law takes
precedence.
Federal Purpose Conflict
Gade v. Natl Solid Wastes Mgmt. Assn
Congress had a purpose to protect
workers, but also had a purpose to create
unified national standards. Allowing a
separate state standard would frustrate
this federal purpose.

Wyeth v. Levine
Congresss purpose in creating a minimum
warning requirement was simply to set the
minimum standard. A stricter standard set
by a state does not frustrate the purpose
of a minimum standard.
Exclusive Federal Power
Cooley v. Board of Wardens
If federal power is always exclusive in an
area, the State law is unconstitutional.
Federal power will be exclusive over
activities which are inherently national.
If the activity is inherently local, States
might be able to regulate it if the dormant
commerce clause or preemption does not
prevent it.

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D.C.C. - Discrimination
Facially Discriminatory
Philadelphia v. New Jersey
Pure facial discrimination; the law said it
was favoring one state over the other. The
law plainly discriminated about garbage
solely because of where it came from.
West Lynn Creamery v. Healy
States ARE permitted to give
discriminatory subsidies to their citizens.
However, in this case the subsidy was
combined with a tax in such a way that it
amounted to a tax on only out-of-state
actors, and discriminatory taxes are not
allowed.
Dean Milk v. Madison
Just because an ordinance is
discriminatory against some in-state
citizens as well as out-of-state citizens
does not make it less discriminatory.
Carbone v. Clarkstown
Town hired a private contractor to build a
waste treatment plant and operate it for 5
years. An ordinance which directed
garbage to that facility was struck down
because it deprived out-of-state
businesses access to a local market. Just
because other in-state facilities were
harmed did not make it less discriminatory
against out-of-state actors.
ARGUMENT AGAINST DISCRIMINATION:
This was a law favoring one entity, and
thus discriminating against the rest of the
world, not discriminating based on state
location.
Oneida v. United Haulers
This was NOT discriminatory because in
Carbone, because rather than
discriminating in favor of one privatelyowned facility, it was discriminating in
favor of one publicly-owned facility. This is
very similar to the dissent in Carbone, in
that it calls the discrimination in favor of a
facility instead of against other states.

Department of Revenue of KY v. Davis

A government function is not susceptible
to standard D.C.C. scrutiny because it is
likely motivated by legitimate objectives
which are different from simple economic
protectionism. This is similar to Oneida,
which distinguished between
discrimination in favor of private and
public entities. Discrimination in favor of
public entities or in the course of normal
government functions is more likely to be
permitted.

Discrimination in Intent
Bacchus Imports v. Dias
The history of the statute reflected that it
was passed when local producers asked
the Hawaii legislature to exempt them
from the state liquor tax. That evidence of
intent to discriminate in favor of in-state
producers was enough to make the
statute unconstitutional.

Justifying Discrimination

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Maine v. Taylor
A discriminatory State regulation may be
constitutional if (1) the end it serves is a
legitimate state purpose, AND (2) the
means used to accomplish the end are
necessary to accomplish the purpose; in
other words, there must be no other way
the purpose could be accomplished.
In this case, banning the importation of
out-of-state baitfish had a legitimate
environmental purpose, and the law was
found to be the only way to accomplish
that purpose.

Horizontal Allocation of
Power

Hunt v. Washington State Apple

Similar to Baldwin, the North Carolina law
which required apples to bear only a
federal U.S.D.A. label was discriminatory
in effect by taking away the natural
advantage that Washington would have
had in the apple market.

Market Participant Exception

South-Central Timber v. Wunnicke
When a city or state is NOT acting as a
regulator but as a market participant, it
may discriminate with its behavior in the
market by choosing who it does business
with. If a State forces their market
participation to have downstream effects,
it is NOT permitted.
Three policy positions:
Justice Rehnquist: Should not be ANY
restriction on the exception, because a
states actions have an inherent political
check which restrains its behavior.
Justice Brennan: Should not be an
exception at all, because states are always
acting from a privileged position in the
market as regulator and participant so
this would allow them to take over a
market and discriminate widely. A state
never really acts as a private party would.
Justice White: There should be an
exception in order for states to be able to
act economically, but there must be this
restriction on the exception to prevent
states from abusing their position of
power and having downstream effects.

NOT Discrimination in Effect

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Minnesota v. Clover Leaf Creamery

Minnesota produced a lot of paper
products, but no plastic products. A law
which banned the use of plastic as milk
containers was found to NOT be
discriminatory discrimination between
two different products is permitted, even
if the state would have benefited in effect.

Undue Burden

Discrimination in Effect
Baldwin v. G.A.F. Seelig
It can be discriminatory to treat states
differently even when they are the same;
it is also discriminatory to treat states the
same when they are clearly different.
Taking away Vermont milk producers
competitive advantage in the market
discriminated in effect against Vermont
milk producers and in favor of New York
milk producers, which is not allowed.

Exxon Corp v. Governor of Maryland

A law prohibited producers or refiners of
petroleum products from operating retail
service stations in Maryland. There is no
petroleum refined in Maryland, so there
was no discrimination in favor of in-state
refiners the discrimination was truly
universal, and thus was a permitted type
of discrimination. This was discrimination
between two different kinds of company,
not against other states.

Undue Burden material is on Page 2 of

the flow charts. There is enough about
the cases on the flow chart.

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Privileges & Immunities

Flow chart addresses the majority of this
area. This is elaboration on fundamental
rights.
United Building v. Camden
This was a P&I issue because people have
a fundamental right to seek employment,
to have the opportunity to labor. If that
opportunity to join an ordinary occupation
is taken away, it is a violation of a
fundamental right.
This is not a fundamental right to have a
job; it is a fundamental right to seek an
ordinary job. This also does not apply to
skilled occupations which require training
The Camden justifications come close to
not having any judicially manageable
standards.

Youngstown v. Sawyer
President Truman seized steel mills, the
question was if President was allowed to
take this action on his own power.
Two lines of analysis come out of this case
separationist, and checks & balances.
Separationist
Justice Black: The branches must remain
separate, and only act within their own
sphere of authority. The President must be
authorized by Congress before he can take
action; he cannot make law on his own.
Because he classified this as a law-making
action, it was not an action the President
could take without prior authorization
from Congress.
The President, as Commander-In-Chief, is
authorized to carry out the logistics of a
war effort in the theater of war, and only
goes beyond the theater of war to a
limited extent.
Checks & Balances
Justice Jackson: The Constitution gives
certain powers solely to each branch,
things they can do all by themselves. But
there are also things which each branch
needs the other for, in particular making
and enforcing law. Because there is some
overlap in the branches, the legitimacy of
an act by one branch should be judged in
the frame of how the powers of each
branch should interact with each other.
Therefore, the Presidents power to act
depends upon his interaction with
Congress, with three different levels:
(1) President acts, and Congress supports.
The whole government has acted
together, so the whole power of the
federal government is behind the action.
(2) President acts, and Congress is silent.
The President can do all the things
explicitly granted to him in the
Constitution, and those things which he
would otherwise need authorization of
Congress to do.
(3) President acts, and Congress opposes.
The President can ONLY do those things
which are granted explicitly to him in the
Constitution, minus those things Congress
has power over. If Congress tells the
President to do something and he refuses,
he is limited to those things he is
authorized to do in the Constitution.
In this case, the Court found that Congress
was silent on the issue, and that was
interpreted as disapproval of the action.
Dames & Moore v. Regan
Utilizing a checks & balances approach,
the Court found that Congress had been
silent on the issue. However, unlike in
Youngstown, silence was interpreted as
approval of the action.

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Separationist Analysis
The core of this analysis: What kind of
function, are the function and the branch
doing it compatible?
1. CLASSIFY the action: is this action
legislative, executive, or judicial in nature?
2. ASSIGN the action to the appropriate
branch: where does the Constitution place
this action?
Ex Parte Milligan (1866)
Suspending the writ of habeas corpus
seems to be committed to Congress by
implication in Article I, Section 9, Clause 2:
the writ of habeas corpus shall not be
suspended EXCEPT when in cases of
rebellion or invasion the public safety
requires it.
The converse is when in cases of rebellion
or invasion the public safety requires it,
the writ of habeas corpus MAY be
suspended.
Since these things are in Article I, they are
committed to Congress and the President
could not replace the civil court system
with military tribunals merely because it
was a time of war.
Ex Parte Quirin (1942)
Because Congress had set up and
authorized a military tribunal, they had
exercised their Constitutional power.
1) Presentation Clause
INS v. Chadha
SCOTUS (Justice Burger): Concluded the
legislative veto is unconstitutional.
(1) Classify the action: What Congress
does with the legislative veto is
essentially legislative. However, using the
legislative veto to overturn the previous
act of lawmaking did not follow the
normal process of lawmaking.
(2) Assign the action to a branch: The
original act was properly passed into law
by Congress, but the legislative veto
which was also a legislative act was not
properly done. The Constitution explicitly
says how lawmaking must occur, and by
allowing the House of Representatives to
do lawmaking activity on its own, the law
was unconstitutionally changed.
Justice Powell: Also takes separationist
approach, but classifies the action as
essentially judicial because this was
deciding the case of a single person, it was
more judicial.
Professor Devlin: This could also be seen
as an executive function, because it is
choosing when to enforce the law.

2) Abdication of Power
Clinton v. New York
The line-item veto was similar to the
legislative veto in Chadha it allowed the
President to create law without following
the constitutionally-prescribed method.
(1) By choosing which legislation to pass
and which to reject, which effectively
modified the contents of a law, the
President was doing something legislative
in nature.
(2) As a legislative action, this should be
done by Congress, not the President, and
Congress cannot give away power
distributed in the Constitution.
3) Appointment of Officers
Buckley v. Valeo
(1) The only appointment power for
officers of the United States in the
Constitution is granted to the President.
Therefore, exercising appointment power
is an executive action.
(2) As an exclusively executive action, this
is not an appropriate action for Congress
to take.
4) Firing of Officers
Bowsher v. Synar
(1) The action being taken by the
Comptroller General was essentially
executive, by interpreting and carrying out
legislation.
(2) Therefore, this action belongs with the
executive branch. The Comptroller
General, however, is a legislative official.
He is traditionally one person from a list
presented to the President by Congress,
and may be fired by a joint resolution of
Congress, so he is a legislative official. But
removing officers by impeachment was
only granted to Congress over executive
officers, so Congress can NOT fire the
Comptroller General.
Myers v. US
The President wanted to fire postmaster,
so Congress passed a law to prevent it.
(1) Firing officers of the US is a purely
executive function, over which POTUS
has unlimited power.
(2) As executive function, Congress has no
sway here and the law is unconstitutional.

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Checks & Balances Analysis

The core of this analysis: What will the
effect be, how useful is it, how much does
it aggrandize the other branches, does it
upset the balance of power, etc.
1. Determine which branch was given the
power to act which branch is supposed
to initiate this type of action?
2. Has Congress acted in this area?
3. Interpret if Congress action or inaction
has authorized or prohibited executive
action.
This is not a clean analysis, it is a
conceptual approach: Look at the dynamic
balance between the branches, then
determine if the action disturbs or
preserves that balance.
1) Presentation Clause
INS v. Chadha (DISSENT)
Justice White: Congress has lost power
over time to the President and
administrative agencies. A legislative veto
is a useful tool to allow Congress to
preserve the balance of power which has
been disturbed over time.
2) Abdication of Power
Clinton v. New York (DISSENT)
Justice Scalia: The line-item veto is an
example of the branches acting together.
This is a power Congress chose to give the
President, and it is more efficient than
vetoing the whole bill and sending back to
Congress. This should be permitted
because it fits in Jacksons first category.
3) Appointment of Officers
Morrison v. Olson
Special Prosecutor was an inferior
officer, so he did not require
confirmation of Congress. This bill made
the Special Prosecutor appointed by a
panel made up of federal judges. (1) This
was not a great increase in the power of
the courts, because the Special Prosecutor
could only be fired by the attorney
general, an executive officer. (2) This did
not deprive executive of power, because
taking away the appointment power over
a single inferior officer did not harm
executive very much.
So using a checks & balances approach,
this did not upset the balance of power.
4) Firing of Officers
Bowsher v. Synar (DISSENT)
Justice White: Since the two branches
were working together to accomplish a
goal, this did not upset the balance of
power. (1) Congress was not reaching
outside their authority to grab power, and
(2) the President was not reaching outside
his authority to grab power, so no danger
of branches overreaching.Accommodation
between branches should be permitted
because it fits in Jacksons 1st category.

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Miscellaneous/Judicial Review
Marbury v. Madison
First held that judicial review is a SCOTUS
power. It is emphatically the province of
the judiciary to say what the law is.
Cooper v. Aaron
SCOTUS interpretation of Constitution is
the ultimate, final word on a constitutional
issue. The Constitution is what we say it is.
Martin v. Hunters Lessee
SCOTUS can overturn decisions of State
supreme court decisions involving federal
law.
Dickerson v. U.S.
Congress cannot overrule via statute a
SCOTUS interpretation of the constitution.

Checks on SCOTUS Power

-Constitutional Amendment
-Congress can alter SMJ of courts
-POTUS selects Justices
-Senatorial Advice/Consent to Justices