Whenever you have to decide whether a congressional statute falls within an enumerated power, check the Commerce Clause

first. It encompasses a broad variety of congressional power.

§5 of 14th Amend. 1) Does it violate EP clause and then does act enforce EP clause under Boerne?

STANDING

STEP #1:- WRITE THIS:

The Standing requirement comes from Art 3 which gives federal judicial power to “cases” and
“controversies.” The Standing requirement promotes (1) judicial restraint and (2) SoP b/c it limits
judicial attention to matters b/w individual parties who have a stake in the controversy b/c they have
actual injuries/ they don’t want to let in all controversies bc it wouldn’t be efficient for the court system to
work that way.

STEP 2: Is there standing?

If an Advisory OpinionNo standing, need a case and a live controversy. This is outside the context of
a litigated case b/c only gives advice about particular legislative and executive action.

If this is a citizen suit provisionNeeds standing

Constitutional Requirements-
1. Injury in Fact-
a. [R] Injury must be concrete, actual, immanent, and particularized to the P; not a
generalized injury of the public. Need to suffer more than the public at large. (Lujan- no
standing bc there was a generalized grievance).
a. injury cannot be to abstract (allen v. wright)
b. injury must be particularized to the Ps, not widely shared
c. injury cannot be speculative (preventing injury in future)
d. cant create injury as response to fear of future injury
Cases for P: Cases for D:
Mass v. EPA: [can help to argue that standing Allen v. Wright: Trigger: P alleging that gov is responsible
requirement is prudential] for their injury through some economic initiative/activity.
 Trigger:  RULE:
o Claim that government is failing to o A general stigmatic injury is too abstract for the
act/regulate purpose of standing
o The moving party is a state (many people o White flight creates issues of Causation and
will likely suffer injury) Redressability
 RULE: States have a strong interest in Lyons: Trigger: Request for injunction to prevent
standing, since they are quasi-sovereign and government conduct
make decisions based on the best interests of  RULE:
their citizens. o Alleged injury must not be too speculative/in
 Note: Even though the state could not show the future and it must be personalized to the
imminent injury, causation and Redressability, moving party
the court found that state interest is enough to  Facts: Suit to prevent LAPD from following
give it standing. unnecessary and racially discriminatory chokehold
o This case shows that Congress can police
articulate injuries and chains of causation Lujan: [aesthetic pleasure not particularized enough]
even if they did not exist before  Trigger: Congress attempted to provide citizens
standing by creating an injury and chain of causation
for a specific injury suffered (aesthetically pleasing to
observe wild animals)

1
  RULE: Even when congress attempts to provide
citizens standing the injury must satisfy the standing
requirement
o This case shows that the standing requirement is
constitutional.
 Facts: Citizen standing provision in statute purported
to give everyone standing to enforce procedural
requirements of the endangered species act, like
consultation requirement

Clapper: [Hypothetical and Conjectural]

Although imminence is somewhat an elastic concept, it
cannot be stretched to assume that there is an objectively
reasonable likelihood to a hypothetical future harm that is
not certainly impending.
 Fails Mass v. EPA broad imminence, b/c P is not a
state

b. imminent or actual; not speculative. Must be likely. See if the economic harm is direct.
c. Mere ideological objection is not an injury (religion or taxpayer – religion no if federal
govt can do w/ money but not congress) - Exception: Taxpayer standing for
“establishment clause.” If the question is how much the gov’t can take, there is standing
b/c there is injury, BUT if the question is what can the gov’t do with the money once they
have the money, there is no standing except for taxpayer standing.
d. Lyons – injunction, to speculative bc did not know he would be subject to injury in future.
e. Policy: don’t argue things for ppl who do not want them, make sure you actually have a
claim and aren’t claiming for others who are injured.
2. Causation: injury must be fairly traceable to the challenged conduct (can have this without having
an injury in fact). It cannot be too attenuated (Allen v. Wright).
3. Redressability: There must be an adequate remedy which the Court can provide. Must be likely
that a favorable decision will redress the injury.
a. Past injury is redressed by money damages, future injuries redressed with injunction. 2
common situations where this arises is where you don’t name the party who should supply
the relief or the ct decision would not provide the relief (Lujan)
4. Targets: targets are people subject to regulation, much easier for targets to have standing than
for beneficiaries.

STEP #3: Rule against Generalized grievances OR Ashwander Avoidance Principle–

Generalized: no taxpayer standing, no citizen standing. (With Flast Exception)
Ashwander: should be Dicta.

Note: See what they are suing under, if DCC-then it protects everyone from state’s interference with ISC, even though 1 can
argue it protects only non-citizens of the State instead of State citizens.

Watch out - Be careful about Prohibition to 3rd Party Standing: Not allowed except for the exception
from singleton.

2
 JUSTICIABILITY

STEP 1: WRITE THIS: Ct. can only decide legal questions, not political ones
The SC won’t hear cases that the Constitution leaves to the discretionary powers of the other branches.
(Baker v. Carr). Thus, Art 3 “case and controversy” must be justiciable—committed to the court.
Requiring justiciability ensures (1) Concreteness – actual parties w/ actual disputes; courts perform better
where concrete factual disputes exist, & (2) Judicial Restraint/SOP – keeps courts out of other branches

STEP 2: Is it applicable to the Political Question Doctrine (Baker)

Unclear if constitutional or prudential. Comes down to a question of whether or not the ct. system is an appropriate forum in
which to hear the case. Can only decide legal questions NOT POLITICAL QUESTIONS.

Bring Up Political Question Doctrine In These Fact Patterns

 Guarantee Clause (Malapportionment)
 Presidents conduct in Foreign Policy/WarsIntra-branch disputes
 Impeachment and removal process
 Challenges to partisan gerrymandering

For a non-justiciable political question, one of the following 6 must be brought up: Baker v. Carr
1) Textual constitutional commitment of issue to another political branch; C has put Q to another
branch:
a. Cases for P:
BakerMalapportionment of S legislatures, under the Equal Protection Clause, is NOT a PQ
b/c there is no textually demonstrable commitment of Equal Protection issues to other
branches of gov, thus no SOP concerns
PowellCongress governs rules regarding impeachment of congressman (textual
commitment), BUT Congress denied elected official his seat on criterion other than the
qualifications listed in the Constitution. Allocation of power is not a PQ, b/c there is no
textual commitment to another coordinate political department
b. Cases for D:
NixonFederal judge, impeached by the senate, challenged the constitutionality of the
senate’s impeachment procedure There is a textual commitment regarding impeachment
proceedings that gives Congress “the sole power of impeachment.” JR would be inconsistent
with the Framers’ creation of impeachment as the only check on the judicial branch by the
legislature.
2) Lack of judicially discoverable and manageable standards for resolving the issue:
a. Cases for P:
YoungstownIssue regarding the executive’s powers, or the powers granted or restrained by
the legislature through statute, is not a PQ, b/c the equilibrium established by the C, requires a
balance and in either dismissing a statutory constraint or not, requires adjudication
US v. NixonInter-branch disputes, between the Executive and an inferior officer, does not
automatically make it a PQ, b/c the underlying issue was the nature of the proceeding for
which E was sought for, a pending criminal prosecution that were derived from federal
statutes, therefore it is within the general scope of Art. III.

b. Cases for D:
VeithGerrymandering cases always pose a PQ b/c the courts have no judicially enforceable
standard for determining when a state makes improper use of political considerations
3
 CarterPresident unilaterally rescinded a treaty with Taiwan w/o Senate involvement. Courts
will tend (not always) to render foreign policy/affairs as non-justiciable b/c there are no
judicially enforceable standards to determine whether the Executive acted lawfully since C is
clear on the fact that the Senate needs to be involved in the making of a treaty, it is silent as to
whether both executive and legislative action is required to rescind a treaty
1. Distinguishable:
a. Cases that involve foreign policy and war powers yet the court heard
them
b. Hamdi, Youngstown, Boumedine, Nixon, Hamdan
2. NOTE: above cases involved individual rights and due process
3) The potential for embarrassment for differing pronouncements of the issue by different branches of
Gov
a. Need give deference to the other branch
4) Impossibility of undertaking independent resolution without disrespecting other branches
5) Unusual need for unquestioning adherence to a political decision that was already made
6) Potential embarrassment from multiple pronouncements by various departments on one question
(ALWAYS ARGUE THIS)
(rama says 4,5,6 are basically same)

STEP 3: Is the controversy ripe or moot?

A. Mootness – “LIVE” controversy (i.e. unsettled such that a favorable judgment will address injury).

Exceptions to the Mootness Doctrine

(1) Voluntary Cessation of a challenged practice that D can resume at any time
MET: [For PFell within the moot exception and passed this prong]
Friends of the EarthD violated law by passing mercury discharge limits and torn down the building, court
did not dismiss it as moot since D can always build another building. Held: D failed to make it absolutely
clear that his conduct could not reasonably be expected to recur after dismissal. Burden is on the defendant

(2) Wrong capable of repetition but nonetheless evading review b/c the review does not occur
quickly enough (e.g., abortion lawsuit,)
MET: [For PFell within the moot exception and passed this prong]
MooreElection process considered not moot b/c still remains and controls future elections, therefore it is
capable of repetition, yet evading review.
Roe v. WadeThe time of human gestation is shorter than time of human litigation.

NOT MET: [For DDid not fall within exception, dismissed as moot]
DeFunisThe repetition must be capable of occurring to the P.

(3) Class action -

MET: [Fell within the moot exception and passed this prong]
GeraghtyAlthough Class Rep P claim was released from prison, after court denied P’s request to class
certify, they held that it was not moot b/c there was a live controversy between the Ps and Ds b/c prisoners
currently affected by law moved to be substituted, or intervene as named P’s.

B. Ripeness – need a present controversy, not just a remote possibility of future conflict. P must show
actual present harm or immediate threat of harm.
Trigger: When law is on the books, or is about to be on the books, but is not enforced.
Issues of pre-enforcement review: enforce or no?
Declaratory Judgment Act- permits people to obtain pre-enforcement review even before they can
show any injury.
When not to use:
4
 Don’t use for speculative injury, or if P wants it enforced against someone else (Allen v. Wright)
If govt. unsure if should enforce or how to use rule against advisory
EXCEPTION to the Rule: Abbot –
1) Fitness for a judicial decision: [No Q of facts, pure Q of law]
a. P must demonstrate that the factual issues are sufficiently developed, or where they are
irrelevant, and the question is purely legal.
i. Pretty clear that nothing else will develop; parties position won’t change; any reason
the ct would be better off waiting? Decline
b. Abbott LaboratoriesGood for PMET. P demonstrated that no question of fact remained
to be decided, and that all judicial issues were pure questions of law, thus fit for
adjudication.
2) Hardship of the parties by withholding ct considerations:
a. P MUST show that will would suffer if they had to wait until the law goes into effect
against them.
i. The greater the hardship, the more likely it will be heard
b. Abbott Laboratories Good for PMET; The high costs and impact from delaying to
hear the case should outweigh the risks of a premature decision.
c. Poe  Good for DNOT MET; Doctors/patients challenged statute forbidding
contraception; The Court refused to hear a challenge to a penal code, since there was
evidence that the law is not being enforced.

DISTRIBUTION OF NATIONAL POWERS

Executive Authority
STEP 1: WRITE THIS:
GR: Art 2- Executive power is vested in a Prez that he shall take Care that the Laws be faithfully
executed [and that he shall be Commander in Chief of the Army and Navy of the US (but Congress has a
role in regulating armed forces).]

Purpose of Separation of Powers: promotion of efficiency and accountability (through a strong

executive), prevention of tyranny by separating the creation of law from the enforcement of law and by
making sure one branch doesn’t get too strong and have too much power.. The Pres. has no right to make
laws, he may only carry them out. Prez’s power to issue an order must stem either from an act of
Congress or from the Const itself (Youngstown).

STEP 2: Does the Constitution or Congress expressly grant the executive branch the power?
Jackson’s zones of presidential authority- Presidential powers fluctuate in 3 categories, although this is
not spelled out in Constitution. (Youngstown concurrence)

When Pres. may act without express C or Statutory authority:

 If acting on C powers, then the Q is whether its within the scope of that power and whether P has
violated other C provisions.
 If statutory, then Q is whether that law is C.

5
IF spelled out in C or StatutePresident can act b/c his power is at a maximum.

IF NO formalist approach would say that the Prez’s action is unconstitutional if not expressly
enumerated in Constitution or contained in Congressional legislation.

STEP 3: Apply categories from Youngstown (Adopted in Dame and Moore)

(1) Has Congress spoken on the issue at all?

Categories from Youngstown Jackson’s concurrence which Ct adopts in Dames & Moore:
1. Cat. 1) Maximum Power: when President acts pursuant to express or implied congressional
authorization.
a. But it could be invalid if congress’ law that authorizes Pres. To do this takes away a person’s
rights. Or if congress does not have that power to give (Clinton)

2. Cat. 2) Moderate Power: Congress silent/ ‘fails to act’

a. when Prez acts in the absence of either a congressional grant or denial of authority (congress
silent). Where Congress remains silent look to
i. statutory language in related legislation (broad or narrow in scope)
ii. subsequent congressional acquiescence;
iii. look at history, is this an area where the President has traditionally had broad power?
b. Silence could mean implicit approval if in furtherance of Congressional silence, or if they
specified other stuff and didn’t include this, it could mean implicit disapproval, always case
by case

3. Cat. 3) Lowest Power: Congress prohibits Pres. But Pres acts in direct contradiction to the express
or implied will of Congress.
a. Pres. power is at its lowest and the ct. should strictly scrutinize Presidential action. (ex. Steel
Seizure)
i. He was not using power of commander and chief bc the steel mill workers for domestic
civilian workers and not something like a military issue.
b. Pres cannot act unless statute is unconstitutional and pres. is w/in inherent power. Pres. Can
only defy congress if their statute is inherently unconstitutional.

STEP 4: Is it a matter of foreign affairs?

In a matter of foreign affairs, Prez enjoys a large amount of discretion- Curtis Wright. As opposed to
domestic affairs, foreign affairs concerns are more sympathetic and deferential to President since the Prez
needs to speak with a unified voice to avoid embarrassment and President is more knowledgeable in this
area. Dames & Moore said, in a matter of foreign affairs, Prez can take actions not authorized by
Congress or enforce laws Congress has not passed

 Dames & Moore-Carter froze assets and blocked removal or transfer of all property in the gov of
Iran. Ct applies Youngstown categories and says Congress has implicitly sanctioned the Prez to
do this (was silent on the issue and it means there was implicit approval and this is a case of
foreign affairs).

6
 Executive Privilege
STEP 1: WRITE THIS-
The so-called executive privilege is a President’s qualified right to w/hold confidential 411 from the other
branches of government relating to the performance of her duties. It is qualified, b/c it is justiciable
(subject to judicial review). It is the province of the Court, not of the President, to decide the scope of the
privilege, Marbury.

Examples:
1. US v. Nixon – the need for 411 in a criminal prosecution outweigh Presidential desire to keep that 411
private by invoking executive privilege.
2. Cheney – the need for 411 in a civil prosecution does not carry the same urgency, and doesn’t trump
the privilege of the executive to w/hold 411. Especially where the nature of the suit, itself is a fishing
expedition for possible violations of law (as opposed to requests to substantiate actual claims of violation)

Note: Presidents try to invoke the privilege as minimally as possible, and the Courts uphold invocation
minimally.

Legislative Authority

STEP 1: WRITE THIS:

GR: Separations of powers not explicitly in Constitution but it is a notion we have held for ages of strong,
independent branches of govt. But they also should work w/ one another to forma a system of checks and
balances. Pres. executes law, congress makes laws, and judiciary interprets law. Purpose is to promote
efficiency and accountability and prevent each branch from acquiring to much power.

STEP 2: Was Congress’s action legislative or executive? (argue both!)

1) Look at whether:
 The act seems legislative given the presumption of legislation when Congress is acting.
 The exercise of authority will affect the legal rights of individuals? (e.g. deporting Chadha = leg)
 An alternative means for achieving the result exists (e.g. a private bill)
 The act has overruled the decision of a member of the Executive (e.g. Attorney General in Chada)
 Congress is acting through an agent.

If Legislative Step 3

STEP 3: When Congress acted, was there bicameralism and presentment?

When Congress acts, must meet 2 requirements to avoid (1) violating SOP, & (2) tyranny, Chadha.
1. bicameralism: passage of bill by both houses
2. presentment: bill must be presented to Pres for it to be signed or vetoed

If no B&P, Congress is violating SOP and infringing on Executive power

- Exception where the Constitution expressly provides that B&P is unnecessary:
 Impeachment
 Executive Appointments
 Treaties

7
INS v. Chadha stands for the proposition that a Congressional reservation of a one-house veto is
unconstitutional b/c Congressional action requires bicameralism & presentment.
Functionalism argument: the one-house veto had the same effect as the old system—one house
voting no (vetoing) is the same as both houses voting no, or one voting no and the other yes.

Ask : Is this promoting accountability?

STEP 4: Is it a legislative function being delegated by Congress?

1) Congress can delegate its legislative power to the Executive branch [POTUS & Admin Agency]
by statute as long as it offers “an intelligible principle” to limit the discretion of the individuals
exercising the delegating authority

MET:
Whitman Congress delegated authority to EPA and provided standards for how the Executive must exercise its power
without considering the cost of implementing its regulations and to make appropriate revisions in 5-year intervals. Required
EPA to consider the given criteria and make regulations that offer an adequate margin of safety for the furtherance of the
public health of non-threshold pollutants.
 Anything above 0 is a violation of public health, but EPA doesn’t want to ban trucks, but creates
regulations, although it is an excess of the law, it is okay
NOT MET:
ALA Schechter PoultryAct delegated to NIRA & allowed President was to approve or prescribe regulations; invalid b/c
Congress didn’t prescribe specific standards for how P must exercise power; no substantive direction for P to convey
policy, instead permits President complete discretion to make codes and rules of conduct.
Panama RefiningAct authorized President to prohibit interstate & foreign transportation of petroleum produced in excess
limits was invalid b/c no guidance for circumstances or conditions in which petroleum should be prohibited.

2) LEGISLATIVE VETO UNC: [Congress attempts to overturn an executive action without bicameralism/presentment]
Congress may ONLY act legislatively through bicameral process and with presentment to the President; Chadha
 Bicameralism: Both House and Senate have to pass the act in order for it to be in effect; AND
 Presentment: given to the President to sign or veto [10 days after presentment to veto].

3) LINE ITEM VETO UNCONSTITUTIONAL

A delegation that allows immediate, discretional questioning of an act of Congress as part of its presentment process is
unconstitutional
 BUT delegations that require the President to subsequently revise Congressional decisions using
parameters established by Congress are constitutional.
Field v. ClarkMET; Act allowed President to suspend exemption for sugar, whenever any country exporting sugar
imposing duties on the US, IF he deemed it reciprocally unequal and unreasonable. Difference b/w Clinton:
(1) Suspension power was contingent upon a condition that did not exist when the Tariff Act was
passed;
(2) When contingency arose, President had a duty to suspend, and although he had to make three
determinations, those did not qualify his discretion to cancel or not to cancel; and
(3) When the president suspended an exemption under the Tariff act, he was executing the policy that
Congress embodied in the statute.
Clinton v. NYNOT MET; allowing the President to cancel an item of new direct spending or a limited tax benefit before the
law was effective, allows him to reject the policy judgment made by Congress, and he is allowing on his own policy judgment.

STEP 5: Is Congress appointing or removing an officer?

8
A. Appointing- Appointment Clause (Art 3, Sec 2) gives the Pres, not Congress, the power to appoint
principal federal officers.

1)Principal officers- must be appointed by Pres with the advice and consent of Senate.
 Ex. of principal officers. members of Cabinet, ambassadors, federal judges

2) Inferior officer-Congress can appoint them.

 Ex. of inferior officer- special prosecutor (may be removed only for cause). Too see if it is an
inferior officer, see if its duties are limited in purpose and time- must be for it to be an inferior
officer. Exec branch will be denied power to appoint and remove inferior officer even when
the appointment is related to purely executive power- this is bc AG has the power to remove,
not the Prez. (Morrison)
 Note: Morrison accepted some inter-branch appointments, but not appointments by Congress.

B. Removing-Congress cannot reserve for itself the power of removal of an officer charged with the
execution of the laws, except by impeachment. The exec branch may be deprived of the power to remove
an inferior office if the appointment was related to purely executive power.
Question: WHEN can the pres. Appoint an official w/o congressional approval. May Congress remove?
Yes, but only inferior officials. (Factors for inferior officials)

 Bowsher-Comptroller general was part of the legislature since he can be removed by Congress
(since Congress does not have the power to remove an executive officer) and was doing executive
powers so it violated separation of powers.

 Congress may limit removal by statute only if two requirements are met: [Congress
CANNOT interfere with P’s power to remove an official]
o Inferior officials vs. Principle officials -

STEP 6: Did this have to do with war?

Art 1, Sec 8: Congress shall have the power to declare war, to make rules concerning captures on land
and water, to raise and support armies, to provide and maintain a navy etc. Unconst if Prez is declaring
war. BUT, look to AUMF (90 days to recall troops)

Art 2, Sec 2: Prez shall be the commander in chief of the army and navy of the U.S.

DELEGATION OF POWER TO THE PRESIDENT IN THE AREA OF FOREIGN POLICYBroad discretion and
significant authority [CASE FOR STRONG PREZ POWER ARG] Plenary power
Presidential power is at its greatest when the President is acting in foreign affairs areas. The foreign affairs power is a
“plenary and exclusive power of the President as the sole organ of the federal government in the field of international
relations,” an authority that exists independently of the Constitutional text.

9
 Separation of Powers & Terrorism

Step 1: Does President Have this Power?

In foreign affairs yes, but not to declare war. So is it w/in AUMF?
AUTHORIZATION FOR USE OF MILITARY FORCE
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons
he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…
 Court hasn’t resolved whether the President’s use of troops in war-time without approval is C.

War Powers Resolution:

 When President engages the troops in a war action, he must receive Congressional approval within
60 days. If no approval is given, then the troops must be withdrawn, unless (a) Congress declares
war, (b) Congress extends the time period, or (c) physically unable to terminate due to armed
attack.

Step 2: Due Process and Habeas Issues  2 separate issues. ALWAYS Address both!!!
(1) The President may order the detention of enemy combatants if authorized by Congress,
provided that the combatants enjoy procedural due process.
Hamdi v. Rumsfeld
 Facts: Hamdi, US-born, was captured by Northern Alliance and suspected of fighting w/ the Taliban.
 Issue: What is the power of the executive to retain a citizen as an enemy combatant?
 Arguments:
 Government: Holding citizens as enemy combatants falls w/in the powers delegated to the President to prosecute
wars. Furthermore, President is acting at the height of his power as Congress has authorized the detention. Under these
circumstances, the judiciary should restrain itself from intervention in individual determinations.
 Hamdi: Presidential actions are generally subject to judicial review, Marbury, Youngstown. Writ of habeas corpus
renders all detentions subject to judicial review.Detention based on classification as an enemy combatant. Thus, he has
the right to appeal that determination to the open courts.
 Opinions;
 Plurality (O’Connor, Rehnquist, Kennedy, Breyer): Detention is authorized. Problems with the executive’s position:
(1) U.S. citizen can be an enemy combatant, but he has the right to the writ of habeas corpus. Entitled to the
opportunity to present evidence to say that he is not the enemy combatant. Even if the government has the authority to
hold enemy combatants, that is not him
 Justice O’Connor’s scheme: (1) Procedure: Rebuttable presumption is okay. Hearsay evidence is okay. (2)
Evidence: Mobbs report (Hamdi’s details of where he was captured) not enough to show that he is an enemy
combatant – Hamdi must be allowed to rebut the Mobbs report – Hamdi has the burden to prove he is NOT an
enemy combatant. (3) Tribunal has to be a neutral tribunal, but could be a military tribunal.
 Souter, Ginsburg: AUMF doesn’t empower exec. w/ detention authority here
 Scalia, Stevens: Make a distinction b/w aliens and citizens vis-à-vis enemy combatant. B/c he is a citizen, the
government must either (1) put him in the CJS, or (2) suspend the writ of habeas corpus. Congress has not
suspended the writ –AUMF not explicit enough to serve this purpose. The plurality is on shaky ground in w/ its “fix-
it” mentality, trying to make everything fit.
 Thomas: This is an executive decision, most important role he has is defending the country
(2) Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas corpus to challenge their
detention, or, if a writ of habeas corpus is not available, provide an adequate substitute process to detainees the includes
the same procedural protections and opportunities that would be provided in a writ of habeas corpus.
Boumediene v. Bush NOT MET

Military Tribunals
Congress and President, through the Article of War and Executive Orders, may constitutionally place unlawful
combatants on trial before a military commission for offenses against the law of war.
Ex Parte Quirin MET;

10
 10th AMENDMENT LIMITS ON NATIONAL GOVERNMENT
Argue Commandeering first!!!! Before CC or DCC

STEP 1: WRITE THIS-Is the Federal Statute w/in Fed. Legislative Powers?
The 10th AM. provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it,
are reserved to the States respectively, or to the People."
Congress does NOT have general police powers. Can ONLY act within the scope of one enumerated powers
a) Interstate Commerce
b) Taxing and Spending Power
c) Foreign Affairs Power
d) Enforcing 13th, 14th, and the 15th Amendments
e) Others: Make War, provide for the army and navy, provide for a post office
If so, does it offend State or Individual rights? [Violation of SOP]
States have general police powers and may act unless C prohibits the action
a) Limitation of Fed Powers10th Amendment

STEP 2: Is Congress passing a generally applicable law?

10th Amendment Limits Congress’s Ability to Regulate State:
Requires that powers not delegated to the fed by the C, nor prohibited by it to the States, be reserved for the States.

BE CAREFUL OF LANGUAGE  NLC was overturned by Garcia 

Good language: ‘traditional area of state law’
Bad language: ‘traditional govt. function’

Fed will argueCongress MUST be clear [language of the statute] if it wants to apply a general Fed law that
imposes a burden on important state activities. But, Congress can pass a law of general application that applies to
both States and individuals. Applies broadly to Private & Public. Reno
 Fed law requiring minimum wage has to say that it applies to “all EEs public and private”

Fed will argueCongress MAY regulate only state’s activities if phrased in the negative rather than the
affirmative [refrain from doing something]

S will argueCongress CANNOT compel or coerce States to enact a federal regulatory scheme [Including
fines/penalties] NY v. US
 No commandeering: You cant make fed laws and force states to enforce them on its citizens
 If the state has already adopted something, then Congress can tell them how to operate it. BUT, if
the state hasn’t adopted anything, Congress CANNOT tell States they must regulate or else
 Policy: Fed officials can avoid accountability if local citizens disapprove of the regulation

NY v. USLaw stated if any state was not in compliance, it either had to take title to all waste OR become liable to in-state
waste generators for all damages: This incentive is coercion b/c the either-or-option is UnC
 EXCEPTIONIncentives, not commendeer:
o Congress MAY provide incentives to regulate in a certain way by tying funding to acceptance of
a federal plan
 Attach strings on grants to state and local government through conditions to induce state
 Difference was how much the state relied on that money beforehand!! !

S will argueCongress CANNOT require State officers to enforce a Fed regulatory program.
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  Examples: Issuing orders requiring the states to address particular problems or Command state officers or people
in their political subdivisions to administer or enforce Fed regulatory program
 Policy:
o States are laboratories of democracy
o Strong state and local governments are a defense against tyranny
o SOPC exist to increase power of the Fed Gov BUT not to intervene with State powers
Printz v. USFed law required state & local law enforcement to conduct background checks for guns. The law was a
temporary measure until a national comp system could be phased in. Held: Act is UnC, even if it dealt with an
administrative function of providing background checks to the Fed Gov.
 EXCEPTIONIncidental Burden:
o Something minor for use of State officials is allowed (sending info)
Fed will argueCongress MAY condition spending on the passage of State legislation or on cooperation by State
officers in a Federal regulatory program, IF:
 Congress is unambigious:
o Condition of the receipt of the funds must be unambiguous/clearly stated what it wants S’s to do
 The condition must related to the spending program
o What is funding $$ for? And what is law?
 Financial inducement does not amount to coercion:
o Giving money:
 If S isn’t get anything at all: NOT coercion
 New YorkNOT MET; The either or incentive was coercive.
o Taking away money: How much?
 S already getting $, Feds cut itProbably coercion
 SibeliusNOT MET; The Medical expansion UnC use of Congress’s spending powers b/c it
has no authority to order the states to regulate according to its instructions, and the conditions
left no genuine choice to the States.
 DoleMET Withholding federal $$ for highways in exchange for cooperation was
constitutional, b/c States on notice, related to highways, and not coercive.

Congress MAY pass legislation that threatens preemption of State legislation unless the State legislates in a particular
manner. NY v. US
 Gives states a choice between enacting a federal plan OR having the state law preempted by
federal law
Congress MAY regulate S under CC. BUT CANNOT directly coerce S to enact/adopt law b/c it invades states sovereignty

Easy cases:
Congress is regulating general commercial activates that apply to both individuals and States/Localities b/c these
activities substantially affect IC.
 Min Wage, Max Hour laws, Occupational safety, Anti-Discrimination

Harder Cases:
Congress regulates activity that’s ONLY applicable to State & Localities
 Congress cannot compel State to enact, adopt, or enforce legislation. Directly coercing S/L to enact Fed
laws is beyond Congress’s powers
 BUT Congress MAY:
o Directly regulate the activity through CC if it has a substantial affect
 Congress can specify the terms, location, conditions, procedures b/c they cross S lines
o Bribe the S’s to follow Fed programs by offering conditional Fed $, conditioned on compliance
with the Fed rules. Through Spending Power
o Conditionally preempt S laws creating regulations that will apply unless the S adopts its own
regulations that meet the Fed Standard
 Regulate our way or we’ll do it for you

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 COMMERCE CLAUSE

Necessary and Proper Clause: [Expands express powers; always keep this in mind when analyzing]
Congress may enact any legislation outside its enumerated powers, as long as it is rationally related to an
exercise of an enumerated power, and not specifically forbidden by the C

STEP 1: WRITE THIS:

Art 1, Sec 8: Congress shall have the power to regulate commerce w/ foreign nations, tribes, and among
the several states. It also has the power to pass legislation that is necessary and proper (useful not
absolutely essential, McCulloch)

Gibbons v. Ogden: The Federal commerce power reaches only interstate commerce, not activities
wholly w/in a given State. Regulation of wholly intrastate commerce is reserved to the several States by
the 10th Amendment.
Congress cannot legislate if actions: (1) are completely internal to the state, (2) do not affect other
states, and (3) do not require Congressional regulation

STEP 2: Does commerce power reach this activity?

See if it is intrastate or interstate activity:

The Commerce power reaches three different types of activities:

a. Channels of ISC (Darby, Gibbons)
- highways, waterways, air traffic, hotels
- Congress can regulate this even if the activity seems quite intrastate
MET: [Goods/Mining/Manufacturing/Wages/Hotels]
NLRBCan regulate labor practices at a steel manufacturing plant that distributed its products across state lines
b/c the intrastate activity had a substantial relation to IC.
HodelCan regulate mining because there was a rational basis to conclude that the regulated activity had a
substantial effect on commerce
DarbyCan regulate hours and wages of workers who engage in the production of goods for IC, and can prohibit
the shipment in IC of goods manufactured in violation of the wage and hour provisions
Heart of AtlantaCan regulate local business, if their business activities have some impact on IC. Findings
showed discriminatory practices deterred blacks from interstate travel, thus affecting econ
KatzenbachCan prohibit racial discrimination in restaurants, b/c rational basis to conclude, if blacks were
allowed to eat at restaurant then owner will have to buy more meat from OOS, which affects IC.

b. Instrumentalities of ISC (Heart of Atlanta- regulation of people, Darby-minimum wage)

- Things used in carrying out commerce: ex. railroads, ferries, machines, people (hours and wages).
- Congress can regulate this even though the threat may come only from intrastate activities
- Examples: Trucks, trains, ships, planes, telephones, apples, shipping things, guns that
travel interstate
c. Activities that have a substantial effect ISC (Wickard)

STEP 3: Is the activity commercial?

Gov will argueEconomic or Commercial: [substantial affect is presumed; Any activityLocal/interstate]
If the activity is economic in nature, then aggregation of the conduct of many individuals is allowed to find
substantial affects; FOCUSWhat is being regulated, NOT affected party’s conduct
 LimitRegulation MUST regulate EXISTING commercial activity as opposed to requiring individuals
to engage in commercial activity Obamacare
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WickardP using wheat for his own personal consumption, a non-commercial, intrastate activity not distributing
interstate. Held: Valid b/c taken in the aggregate, the failure to regulate that class of activity would undercut the
regulation of the interstate market in that commodity. Congress intended to control wheat production for home
consumption b/c it could have an effect on the supply & demand of the interstate economy
RaichHomegrown marijuana for personal use NOT commercial in nature, but Congress could regulate it b/c
intrastate production of a commodity that end up in IC (weed) can be regulated via N&P when it can substantially
affect IC

P will argueNon-Economic or Commercial: [Substantial affect must be proved & aggregation inappropriate]
CANNOT aggregate none-econ activities unless Congress can show a substantial economic & real effect on IC; has
to be justified through findings or history
Lopez: Possession of guns near are not economic activities however broadly defined; Held: Law baring possession
of a gun in a school zone is invalid b/c the possibility of a violent crime occurring was not substantially related to
commerce and requires too many inferences. No Congressional findings in this case
Morrison: Gender-motivated crimes of violence are not economic activities; Held: Civil remedy for victims of
gender motivated violence is invalid b/c reg non-econc activity that has traditionally been dealt by S Laws.
 Even though there was lengthy legislative history & congressional findings founding that assault against
women, when looked cumulatively across country, have a substantial effect on IC.

IF Not commercialLook at these to see if there is a substantial effect on ISC even when its not economic.

1) Need a Jurisdictional element-an obvious connection b/w the activity and ISC for Congress to be able to
regulate it. Have to prove that the affected item of commerce has passed through ISC. If no jurisdictional
element, this is not fatal to the act but it is harmful. Ex: Lopez- needed to show that an element of the crime of
having the gun at school is that the gun had passed through ISC, could not do it b/c it is tough to prove something
substantially effects ISC if it is not commercial).

2) Legislative Findings: Just the existence of findings or history of substantial affect on ISC is not sufficient to
prove its const, but it is helpful. Ex. Morrison, Lopez.

3) Rationality Test: from Heart of Atlanta. Congress must have a rational basis for finding that this activity
substantially relates to ISC & the means selected to achieve the end must be reasonable.
 Heart of Atlanta- expansive view of CC, hotel discriminating against people impedes interstate
travelinstrumentalities of commerce so Congress can prevent hotel from discriminating since
commerce is adversely effected when people have no place to stay. Motive doesn’t matter as long as is it
substantially related to Commerce

Other considerations:
1) Is this regulation an area of traditional state concern? This is important because we do not want to blur lines
of political accountability. Crime, family law, and education are traditional state or local concerns- Lopez.
However, these can be outweighed by showing that a national solution is needed and that one state’s choice heavily
affects other choices.

2) Should we give deference to Congress- motive is irrelevant. Even though a motive may seem suspect, Ct will
not interfere as long as the CC is applicable

3) Is this a national necessity? CITE NECESSARY AND PROPER CLAUSE (Ex. States not doing a good job
in regulating violence against women so there was a need for the national government to step in but didn’t become
important in analysis of constitutionality of Act and effect in ISC in Morrison and it was still held unconst)

4) Is there a coordination problem? There is a legitimate coordination problem if this might frustrate the purpose
of other states. In Darby, the Ct argued that without coordination, businesses would relocate to states without
minimum wage/hour laws to give themselves an unfair advantage. Travel usually presents coordination problems,

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such as could go to neighboring state. If it would be difficult to regulate on state by state basiscoordination
problem.

5) Is the act commandeering a State function? (NY v. US): Congress cannot commandeer the state legislative
process to adopt a federal regulatory program via the CC. This violates the 10th amendment. This set limits on
regulating state’s activities. See if the act is compelling or prohibiting state/local conduct.
A) Exception: Generally applicable law that applies to states as well as individuals is ok and does not
violate the 10th amendment. (Garcia). Cannot target only state/local action.
B) Not commandeering if just applying federal law

6) Would it threaten Federalism and political accountability? If legislation blurs the line of political
responsibility, then it may result in confusion as to whether to lay blame on the state or the federal govt.

7) Stare Decisis: judge could make argument that Lopez cannot be overruled.

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 SPENDING/TAXING POWER

STEP 1: WRITE THIS:Art 1, Sec 8 gives Congress the power to tax & spend. It’s a fairly broad power that gives
Congress the ability to condition the receipt of federal money by the States on their promise to spend it a certain
way.

IF GOV IS TAXING16th Am: Power of federal government to tax w/o limitation, gives tremendous authority to
the national gov. Note: Congress can tax but cannot regulate. State can’t tax the fed gov (McCullouch)

IF SPENDINGIndependent power to spend- Congress has the power to spend for the general welfare or to
further one of Congress’s other enumerate powers
Conditional Spending: Congress can give federal funds to the states with strings attached but there must
be a close connection b/w the spending and the regulation. Congress can specify a condition but not a
regulation. A regulation is valid only if its falls under delegated powers.

STEP 2: If conditional spending, does spending meet these requirements? (from SD v. Dole)
1) Condition must protect the general welfare (Court is deferential to Congressional judgment w/
regard to what is necessary for the general welfare)
2) Condition must be unambiguous (Clear such that the States can make informed choices).
3) Condition must be related to the spending- spending must be related to a federal interest or national
project or program and cannot be too broad (e.g. SD v. Dole- drinking age is related to highway safety,

4) No independent constitutional bar: Cannot coerce into unconst. conduct. Congress cannot use the
money to circumvent the Const. States must have a choice. (you can’t induce a state to do something
that would be unconst).
Other:
1) Doesn’t matter if the regulatory impact of the spending/tax could be achieved directly by the use of another
enumerated power.
2) Congress can condition funding on a state’s waiver of Sovereign Immunity

STEP 3: Is Congress overstepping its bounds?

1) If there is coercive pressure  compulsion. States must have a choice. Distinguish b/w encouragement and
compulsion.
2) If lines of accountability are being blurredcan’t do it.

Analysis for when a State Acts:

1) If Congress has spoken, is there preemption? If congress has NOT spoken move on
2) Does act discriminate against IC?
a. Facial Discrimination?
b. Implied Discrimination?
3) Or/and does it unduly burden on IC? [Situations where we cannot show discrimination]
a. Is IC being significantly burdened as compared to the benefits the State wants to achieve?

Preemption of State Law: [ISSUEIs S law’s intent/impact contrary to express or implicit intent of Fed law]
Fed laws w/in the scope of Congress’s powers preempts inconsistent/conflicting S laws b/c through Sup clause Fed laws are
supreme laws of the land. Congress’s intent for the creation of statute is central to this analysis. If congress reg a trad S area,
presumption is not to preempt unless congress’s intent is unequivocally clear; Preemption can be either express or implied.

1) Express Preemption:
Congress can expressly preempt S law on an issue or in a field by a clause w/in statute that expressly prohibits S reg in an
area. However, MUST determining exactly when congress intended to preempt state reg
 Clear Preemption Clause?
o “No req or restrictions may be enforced by the States”
o ”Supersedes any and all State laws”

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 o “No additional req by S after FDA approval”Like reg, changes behavior & creates a requirement
o “Act supersedes any and all State laws as they now or hereafter relate to any insert subject matter”
 ScopeWhat exactly is Congress trying to do?
o Regulate overall market OR prevent a harmful product
o FOCUSPlain/Precise wording of preemption clause b/c it’s the best E of congressional intent
 Statements in findings
 Degree of detail in the fed law
MET: [Good case for Fed]
Tobacco CaseAlthough Fed Act was reg Health/Safety (Trad S area), it expressly preempted MA’s reg governing outdoor &
point-of-sale ads of cigs b/c Congress explicitly intended to prohibit S’s from advertising, irrespective of the content or
location, to enhance its scheme to warn the public about the hazards of cig smoking

2) Implied Preemption: [NO express clause required, but may be applicable to express as well]
Implied preemption requires no explicit statement of Congressional intent to supersede S law; Congress’s intent to preempt
will be implied in 3 circumstances

1) Conflict Preemption:
Fed law will preempt S law when a conflict btw them makes compliance impossible for both to coexist
 1) Determine congressional intent in passing the statute
 2) Does S law conflict with that intend?
o To avoid conflictInterpret Fed law such that its intent is NOT in conflict with the S law
o Winning Arg: More stringent S’s laws will NOT strike down S law b/c they can coexist
 Examples: [Labeling regulations]
o Fed: No one can work over 8 hours a day without time and a half pay
o State: Have to offer 4 day work week option
o Might be trying to create a 40 hour work week option which you’d work 10 hours a day for 4 days
NOT MET: [Good case for State]
FL GrowersCA 8% requirement of avocado oil content imported for sale or transportation into CA was not preempted b/c
Fed law didn’t specify any oil requirements so compliance with both is possible.
 Losing Arg: IC should be evenly regulated through the nation
2) Interferes w/ Federal Objective:
S law will be preempted when it stands as an obstacle to the full achievement & execution of the purpose & objectives
of Fed Law, even if the laws are not mutually exclusive.
 1) Determine the fed objective
 2) Determine S objective and at what point does S law undermines achieving Fed goal?
o May not be on its face, rather resulting impact
 Example of Impeding Fed Obj:
o Fed Law: Caps damaged for pain and suffering 1 mill
 Fed Objective: Limiting liability
o State Law: There’s going to be X3 damages for loss of income in any PL action.
 State Objective: Increase recovery for P
NOT MET: [Good case for State]
Pacific Gas & ElectricState law was not preempted b/c the federal law was concerned with the safety aspects of the nuclear
plants, while the state law was concerned with economic feasibility of the nuclear plants.
 Other Example: Federal law aiming to regulate safety concerns (not remedy) vs. state law aiming to provide a remedy
is likely not to be preempted
Wyeth Furthering Fed goal by requiring to do more is OKAY.

3) Field Preemption: [So much reg already that there’s no room for anymore]
Fed statute is so comprehensive in its reg of a field that impliedly Congress could not have wished to allow S reg in
this are, whether contradicting or complementing. Preemption will be found if there is a clear Congressional intent to
have Fed law occupy a particular field
HinesState can supplement federal law BUT NOT when the field, as a whole, is preempted.
Arizona v. USAZ law allowed local police to enforce fed immigration law was preempted by the federal statute
covering the field of immigration, b/c State lacked authority to complement or enforce additional regulations.

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 DORMANT COMMERCE CLAUSE (DCC)
Anything w/ flow of commerce; Congress has not acted/S law not preempted

STEP 1: WRITE THIS: Art 1, Sec 8- assigns the CC power to Congress

The DCC applies when Congress has neither supported nor prohibited actions by the several States; thus,
there is Congressional silence. The primary concern is how the judiciary ought to interpret this silence. The
purpose: To prevent State infringement on ISC.

-- Where Congress has NOT reg on a particular area, S are free to regulate IC on that matter as long as they do
NOT 1) Discriminate against IC; or 2) if the law does not discriminate, does it unduly burden IC. The central Q in
this analysis is whether S law discriminates against OOS or whether it treats in Stater’s and OOS alike.
 ForEconomic justification and political
 AgainstSeparation of Power
 If S law violates DCC, Congress can pass laws allowing S’s to carry out regulation
 If S law doesn’t violates DCC, Congress can preempt it by passing fed law regulating that area

STEP 2: Does the act regulate commerce? Heart of Atlanta- movement of ppl across state lines for economic
purposes is commerce (but it regulated commercial activity).

STEP 3: A) Is the law discriminate against ISC? [TRIGGERfavoring your S some way/market place]
1) Discrimination: [Against OOS’s by preferring local interests]
Discrimination can be found either on the face of the statute or if there’s discriminatory intent that
appears on the history of the measure or a discriminatory impact by reaping an advantage at the expense
of other states. NO discrimination when the S takes on the function itself or when regulating local
highway safety

Facially Discriminatory: Found directly in the statute; Laws that favor local commerce against OOS commerce
MET: [Violated DCCChallenger of S law will use]
NJ Trash: Although NJ has a right to protect its residents; it cannot do so by discriminating against items of
commerce coming from OOS; Cannot put burden on other states to protect state’s environment
 AlternativeRegulate the quantity of trash/pricing, but apply to in-state as well
Hughes: Blocking the shipping of minnows OOS was unconstitutional
 Import/Export regulatory laws are typically facially discriminatory

Discriminatory Intent or Impact: [NEED facts indicating Result/Effect of law is discriminating]

Facially neutral laws can be found to be discriminatory if they either have the:
1. Purpose/Intent to discriminate judging by legislative history OR
a. Discriminatory purpose can be inferred from two laws being passed together, although acceptable
exclusively
2. Effect of discrimination against OOS for economic protectionism of its own residence
a. Depends on the factual circumstance (culpable intentions/reasons of law/findings)
MET: [Violated DCCChallenger of S law will use]
HuntNC statute invalid because effect of discriminating against WA apple growers by imposing new labeling
for OOS apple growers that NC growers already use, requires OOSer’s to spend money to comply with the law and
strips away WA investment of developing its brand as superior apples.
West LynnPure subsidy to IS dairy farmers funded by OOS’s general revenue does not burden IC, but subsidy
funded entirely by taxes on sale of milk produced in other states is invalid, b/c the benefit derived from the tax is
entirely conferred upon IS famers, who have no incentive to protest the tax, creating economic protectionism

NOT Discrimination: [GO TO UNDUE BURDEN ANALYSIS]

1) State takes on the economic function itself and adopts reg to assist it in offering the service but treats
private businesses, in or OOS the same, do not discriminate
2) Regulating Highway Safety and affected all interstate and intrastate motorists equally
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2) If the law discriminates, it will be INVALID UNLESS S can prove both: [BALANCING TEST]
If a State law discriminates, it’s unconstitutional, UNLESS under strict scrutiny, S can prove that the act
furthers a legitimate non-economic interest AND there are no less discriminatory alternatives available.

It must: Uphold a Legitimate State Purpose: [END]

Laws that promote health, safety and welfare objectives ARE legitimate BUT laws designed for
furtherance of economic benefits/preserving S economy are NOT.
MET: [STATE will use]
HughesRegulation against sale of its Maine’s minerals was for a local purpose.
MaineEnvironment is a legitimate concern b/c importing minnows could ruin fragile fisheries. Therefore,
S cannot be expected to sit and wait until irreversible damage has occurred
NOT MET: [Good case for Challenger]
PhiladelphiaNJ law prohibiting solely out-of-state waste to protect its economic purposes invalid.

It must also be the Least Discriminatory Alternative: [MEANS]

S has chosen the least discriminatory alternative to accomplish its purpose
 Challenger will Argue for Alternative:
o Forbid for all states, including own
o Regulate the quantity of trash/pricing, but apply to in-state as well
 S will Argue:
o 1) Protectionist measure 2) incidental discriminatory impact 3) regulates even handedly 4)
law applies to everyone equally
HughesNOT MET; There was discreiminate and S didn’t choose less discriminatory alternatives
available.
Dean MilkLess discrim alts exist to achieve same health/safety goals for milk quality, instead of econ.

3) EXCEPTIONS:
1) Congressional Approval: Facts that say Congress is okay with it
2) S Acting as Market Participant: Can prefer citizens & discriminate in purchase/sale decisions/hiring labor
3) Subsidize consumers or producers: S is giving $$ to incentive behavior
4) Offer Tax incentives: To make itself an attractive business climate

B) If the law doesn’t discriminate against IC, does it unduly burden IC? [TRIGGERTreat everyone same]
A law does not discriminate against non-residents, may be UnC if it unduly burdens IC.
 S law unduly burdens IC when the burden on commerce outweighs local interests its trying to protect.
 S law unduly burdens IC BUT may be valid if S is furthering important interest and no less discrim alts.

1) Is S law reasonably related to a legitimate purpose?

1) Legitimate Local PurposeGoals/End/PurposeHealth/Safety
2) Reasonably RelatedMethods/Means/Statute’s Req
a. PikeMET; legitimate S interest to have all cantaloupes shipped packed uniformly and labeled
with point of origin
2) Does the S interest outweigh the fed interest in avoiding a burden on IC? [BALANCING TEST]
Factors:
 Extent S law achieve its interest
o Important v. no concerns
 Is there alternative methods less burdensome to IC
 Degree of burden it puts on IC/National Market
o Costs, measures companies will have to take
o Incidental effect on IC OR serious one

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MET: [STATE will use]
United Haulersincidental burden to private businesses, whether in or out of state, is outweighed by the benefits
of a state-created public corporation

NOT MET: [Good case for Challenger]

Southern PacificGreater burden on interstate economic interests by limiting movement of interstate trains
through the state, and imposing a burden for others to either disassemble or bypass the state.
Pike S interest is only incidental in comparison to the extreme burden it places on IC, by requiring an cost of
$200K to comply.
Consolidated Freightways S law prohibiting the use of 65-foot tractors on its highways, for no legitimate safety
concern, was substantially outweighed by the burden of $12.6 million cost to trucking companies.

The Privileges and Immunities Clause: [ONLY when discrimination against out-of-Stater’s based S residency]
S CANNOT discriminating against OOS citizens in favor of their own regarding C rights or important economic activities
[Earning a livelihood] UNLESS:
1) It can show a substantial justification for differential treatment and
2) No less restrictive means were available
(1) ONLY applies to US citizens; NOT Corps or aliens
(2) NO exception for S as a market participant
(3) Congress CANNOT override
(4) Concerned with rights of citizens wherever they go, NOT the flow of commerce. [1st DCC Q]

(1) Is there discrimination on the basis of state of residence?

a. NO diff btw local or state laws b/c cities are part of S’s political subdivision
b. Doesn’t matter if S law also discriminating against its own citizens b/c they can have their voice heard through the
polls; OOS cannot
c. OOS coming into S are treated differentlyRight to travel

(2) Is the OOS resident’s interest sufficiently fundamental to the promotion of interstate harmony, involving either a C
right receiving unequal protection, or an important economic interest?
 Rights to travel
 Denying the right to earn a livelihood to citizens of other S’s
o Discrimination in employment
o Different fees for in state v. OOS individuals
 Civil/constitutional right
 Good Case for PCamdenLaw req 40% of EE’s be working on city constructions be city residents violates P&I
b/c discrimination in employment is a fundamental interest to the promotion of interstate harmony
 Good Case for SBaldwinCan discriminate is fee’s for purely sport & recreation activities b/c its not a right to
earn a livelihood

(3) Substantial state interest for discrimination? Is discrimination substantially related to S objective?
a. S Interest:
i. Need adequate findings; CAN use economic protectionism; Improve life for citizens through gov programs,
ii. CamdenUrban decay, high unemployment, decline in the city’s tax base, and flight of the middle class from
the city is a sufficient interest;
b. Means/Method in Law:
i. Degree of less restrictive means available?
ii. MUST have a substantial relationship between OOS residents and the evil the status is aimed at protecting.
iii. Supreme Ct of NHNH CANOOT enact restriction on admission to bar for OOS citizens b/c the following
reasons are NOT substantial. Held: there is NO substantial relationship btw the OOS citizen and the means
adopted do not bear necessary to the state’s objectives to satisfy P&IC b/c there is little evidence that their fear is
valid
1) OOS are less likely to become & remain familiar with S’s local rules [Knowledge]
2) Behave ethically [Ethics]
3) Be available for court proceedings, and [Quick response]
4) Do pro bono work
5) Greater motivation b/c they live there

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