Key Articles of AOC

ARTICLES OF CONFEDERATION
(1777 - 1781; remains in effect until 1787)
ISSUES WITH ARTICLES OF CONFEDERATION
1. ABSENT POWER TO TAX: Fed could not tax states,
basically would ask states for money and they would
ignore them
Article II - states would maintain their power, except for power explicitly given to federal government.
Article III - States would enter into friendship w/ each other and protect each other from attacks
Article IV - free movement among states
Article VI - Federal government can: conduct foreign policy, declare war. States NOT allowed to declare nobility, form sub-nationality
groups, MUST keep regulated militia
Article VIII - Funds collected by states and fed gov?t would disburse to state gov?ts & to fund armies
Article XIII - AOC were final and only changed by Congress. Amendments needed unanimous consent. Needed supermajority to
pass laws.

2. NO POWER TO REGULATE COMMERCE: only COMPOSITION OF FEDERAL GOV'T

property disputes
1. Unicameral Congress (2-7 delegaes, states vote as block)
3. Concerns about Congress just printing PAPER MONEY,
causing money to become worthless 2. Committe of States was the "Executive Branch" (No President)

3. No federal court system

4. States would impose TARIFFS on each other

Was ratification of the Constitution legal valid, per AOC?

UNITED STATES CONSITUTION
(1787)
1. Breach Agreement Argument ? There was widespread noncompliance of AOC. No one believed it was the supreme law of the land and
no mechanism existed to enforce AOC. Therefore, like a K that was breached many times, so too were the AOC and therefore making it null
ARTICLE I and void, allowing founding fathers to set it aside for the new Constitution.

1. Bicameral (House and Senate), Requirements,
Procedures, Salary, Immunity, Bill becomes law
(Revenue STARTS HOR), Veto/Override/Pocket
Veto, 3/5 Clause
2. Section 8: Congressional Powers: maintain
army/navy, post offices, create courts, regulate
commerce, necessary and proper (Elastic)
clause.
3. Section 9: Congressional Limits: suspension of
habeas corpus, bills of attainder, expost factor. No
preference of states, no nobility titles, only treasury
can give you money.
2. Radical Argument ? New Constitution was a 2nd revolution. It involved an act of the people rising up and rejecting the existing legal
order at the time. Under certain circumstances, the people have the right to assert their sovereignty over their gov?t and put a new one in
place.
ARTICLE II ARTICLE III Article IV ? States will respect laws of each
Section 1: SCOTUS & Inferior Courts, other, all citizens to be treated equally, fugitive
1. President/VP à Terms, requirements, Lifetime appointments, salary, could be slave clause, extradition of criminals,
electoral college, salary impeached republican form of gov?t.
2. Section 2: Powers à Commander in Section 2: Jurisdiction à Original JX Article V ? Amendments
Chief, Cabinet, Pardon, Treaties, (ambassadors, other public ministers, State Article VI ? Supremacy Clause
Choosing Judges is a Party), Appellate JX (all other cases, w/ Article VII ? Ratification
3. Section 3: Duties à SOTU, Head of exceptions as Congress makes
State, Execute Laws
4. Section 4: IMPEACHMENT

4. Section 10: State Limits: no tariffs on other

states, no navies, no printing money or declare war

Marbury v. Madison (1803) Martin v. Hunter's Lessee Cohens v. Virgina

Judiciary has power to declare laws unconstitutional b/c: (1) if they Supreme Court has the ability to Supreme Court also has
couldn?t, constitutional would be the same as statute; (2) Congress review judgments of state courts appellate jurisdiction over state
JUDICIAL REVIEW cannot regulate their own laws; (3) Judiciary should say what the and the consitutionality of state criminal cases when they claim ORIGINS AND
law is; (4) Court has authority to check laws ?arising out of the legislation. their convictions violate the JUDICIAL
Constitution? to ensure their constitutionality; (4) Oath of Office to Consitution. REVIEW
We need UNIFORMITY in the
protect CON; and (5) CON supreme law of land, therefore only laws
laws of the US.
created in PURSUANCE of it can be valid.
 MICHAEL COHEN?S Fundamental Principle of Constitutional Law
The powers of the federal government are limited but supreme.

1. Does Congress have the authorrity under the CON to legislate?

(ENUMERATED / IMPLIED POWERS) 1. Does the state legislation violate the Consitution?
** Congress's power is presumed absent until proven present. * State's power Proved present, unless shown to be absent
* States can do whatever UNLES it conclits w/ Consitution or is preempted by federal law.

2. If so, does the law violate another consitutional provision?

NECESSARY AND PROPER CLASUE

(Art. 1 Section 8, cl. 18): ?Congress shall have power to make all laws
which shall be necessary and proper for carrying into Execution the
foregoing powers, and all other powers vested by this constitution? ?

Grants Congress the power to make all laws necessary and proper (i.e., appropriate) for carrying into execution any power granted to any
branch of the federal government.

LIMITATIONS

Let the ends be legitimate

Not Prohibited by other provisions of Consitution

What is ?Proper??
Certain exercise of implied powers through is useful are nonetheless improper b/c they encroach on individual rights or exceed the bounds
of congressional limitations.

No Pretext
NECESSARY
Congress cannot, in the guise in pursuance of their enumerated powers, pass legislation to do something outside of the bounds of their AND PROPER
enumerated powers.

DOES THE LAW REGULATE
LAW w/in scope
Channels of Interstate Instrumentality of Items that travel in of Commerce
commerce (e.g. places interstate commerce interstate commerce (regardless of
where commerce and persons/ things in YES
Congress's
reasons for
occurs such highways, interstate commerce acting - See
waterways, internet) Darby)

LAW INVALID
(See Sebelius)
Does the law "compel" individuals to engage in commerce (i.e. does the law
NO IT DOES NOT YES
regulate "inacvitity" as opposed to "activity")?

Does the law regulating the activity constitute an ?essential part?of a ?larger LAW VALID
regulatory scheme? governing an economic class of activities that have a YES
NO IT DOES NOT substantial effect on interstate commerce? See Raich

Could Congress have

rationally concluded (looking at
ECONOMIC ACTIVITY evidence) that the regulated LAW VALID
activity, when understood in YES
the aggregate, has SEE WICKARD,
DARBY, HEART
substantial effects on interstate OF ATLANTA
commerce?
NO IT DOES NOT
NO

Does the noneconomic activity have a

LAW INVALID
NON ECONOMIC ACTIVITY substantial effect on Interstate
Commerce? SEE LOPEZ / MORRISON

Lopez/Morrison Factors :

(1) does the causal theory ?pile

inference upon inference?; YES

(2) does the law touch on a traditional

area of state regulation;
LAW INVALID? LAW VALID?
(3) is there an absence of legislative NO
findings (but see Morrison)?

CONGRESS
CAN IT BE INVALIDATED COMMERCE POWER
CAN IT BE REULATED UNDER THE
TAXING OR SPENDING POWER? UNDER PREEMPTION OR
ANTICOMMANDEERING?

Channels of Commerce
minimum Congress has the power to regulate
the transactions that start in one state and end in (distinction b/w inherently harmful goods and
another. ?Commerce among the states ?
literally?.
Congress can regulate the interstate
PATHWAYS where transactions occur. Channels
refers to the highways, waterways, and air traffic
of the country. Instrumentalities refers to cars,
trucks, ships, and airplanes.
Stream of Commerce
Affects Commerce
Pre 1937: NARROW Interpretation of Commerce Clause
Post 1937: MORE Defference to Congress, EXAPNDED reading of CC
Post 1995: RETURN to Federalism and NARROW reading of CC
Pre - 1937
Limits on Congress?s power to prohibit the
interstate shipment of goods in a manner that
exerts control over local activities. See Hammer
inherently harmless goods ? Pretext principle?)
Distinction b/w production/manufacturing and
commerce; pm said to involve activities that
occur prior to goods?placement in the SOC. See
Carter Coal (similar distinction involving local,
retail level sale of goods after they have exited
the stream).
Congress may regulate intrastate activities that
have a DIRCT effect on interstate commerce, but
it may not regulate intrastate activities that have
an INDIRECT effect on interstate commerce.
See Carter Coal
Direct vs. Indirect Test: manufacture involves
some control over where products go after but
this is a ?secondary effect? and not the
primary effect. Manufacture only affects
commerce incidentally and indirectly
Post - 1937
Hammer is OVERRULED ? Congress is
authorized to regulate interstate sale/distribution
of goods, REGARDLESS of effect on local
activities. No inquiry into Congressional
motive/purpose.
This theory gets swallowed up by affects
commerce theory
Congress may regulate intra state activities that
have a SUBSTANTIAL EFFECT on interstate
commerce. See Darby.
Substantiality of the effect may be measured by
considering the regulated activity in the
AGGREATE, rather than on a case by case
basis. See Wickard.
Evolution of
COMMERCE
POWER
 Article I §8 states Congress shall have the Power to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the common defense and general welfare of the United
States, but all duties, imposts and excises shall be uniform throughout the United States.
TAXING POWER
Characteristics Tax v. Penalty
(Drexel Furnitute)
Tax = imposed by legislature w/ the
primary motivator of obtaining revenue
and, by incident, could discourage states
from acting in a certain way (e.g. tax on
tobacco). The provisions set in the law
MUST have a relation to the enforcement
of a tax.
Penalty = characteristics of regulation
behavior and punishment for not doing
something the gov?t has told you to do.
3 PART TEST
(Sebelius)
1. The greater the financial burden the more likely
a penalty*** (e.g. 1% of income)
2. The presence of a scienter ? either knowing or
purposeful, subjective states of mind. The action
of knowingly, or purposely, doing it is like a
penalty. Are we punishing intentional
lawbreakers?
3. Who is the enforcer?
- IRS = likely a tax
- Other than the IRS = likely a penalty
SPENDING POWER
Two Views of Spenidng
(Butler)
1. Madison View - Congress was limited
to taxing and spending to carry out the
other enumerated powers under Article I
§8
2. Hamilton View (COURT ADOPTS)
Congress could tax and spend for any
purpose that it believed would serve the
general welfare, so long as Congress did
not violate another constitutional
provision. The Tax/Spend power is
separate/additional power in the
Constitution.
5 PART TEST
(South Dakota)
1. Congress has a purpose to serve the general
welfare (substantial deference to Congress)
2. Congress has made clear statement of the funding
condition (Unambiguously stated allowing states to
exercise their choice KNOWINGLY and COGNIZANT of
the consequences)
3. The Condition MUST BE RELATED to the spending
program and the federal interest
4. Other Constitutional Provisions provide an
independent bar to the conditional grant of federal
funds
5. Coercion: to what extent is the state free to decline TAXING AND
the federal gov?t offer? SPENDING
POWER
 Tenth Amendment: ?The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states are reserved to the states respectively, or to the people.?

ANTI- COMMANDEERING

IS THE LAW REGULATING THE

PEOPLE STATE
PEOPLE OR THE STATE?

LAW VALID LAW INVALID

Feds CAN regulate everyone generally, states only regulated Feds CANNOT control of what states can and cannot
because acting as a private citizen would be (Garcia- legislate (Murphy)
employers)
Feds CANNOT control state executives in order to enforce
fed law (Printz)

Feds CANNOT provide false choice to states b/w enacting

fed law or paying penalty/taking liability for not enacting (New
York)

ALTERNATIVES

1. Threaten to enact federal legislation that will override state law unless the states regulate.

2. Give states funds or contracts on the condition they comply with federal policy (assuming conditions are not overly ANTI
coercive that they violate the anti-commandeering principle). COMMANDEERING
 States may act unless the Constitution prohibits such an action

§Article I, sec. 10: bars states from some specific acts that could interfere with the national interest (coining money; declaring war; negotiating treaties)

LIMIT #1: DORMANT COMMERCE CLAUSE

LAW VALID?

DOES THE LAW FALL WITHIN AN EXCEPTION OF DCC?

1. Quarantine law? (Philadelphia v. N.J.)

2. Distribution of subsidies? (But not tax credits/exemptions.

Camps Newtown) YES LAW VALID CAN IT BE INVALIDATED
UNDER PREEMPTION OR
PRIVILAGES AND IMMUNITIES
3. Market participant? (South Central Timber.)
CLAUSE?

4. Congressional Approval?

YES
Does the law facially discriminate with respect to
interstate commerce?
Does the law satisfy the virtually
1. Facial discrimination DOES exist where a law requires per se rule of invalidity?
the use of local (or in-state) services, see Dean Milk, or
a single, privately-owned service, see Carbone. (To satisfy the rule, the government
YES LAW INVALID
NO IT DOES NOT must show that there are no
2. Facial discrimination DOES NOT exist where a law nondiscriminatory alternatives to
requires the use of a government-owned service that achieving the legitimate government
involves a ?traditional or typical? government function. interests furthered by the law.)
See United Haulers.)

NO

Is the law discriminatory in purpose or

NO IT DOES NOT YES
effect? (See, e.g., Hunt; Bacchus Imports.)
LAW VALID

YES NO
Does the law satisfy Pike balancing? (A law will
satisfy Pike as long as its burdens on interstate
NO IT DOES NOT commerce are not clearly excessive in relation to its
legitimate local benefits.)
DORMANT
COMMERCE
CLAUSE
 LIMIT #2: PREMPTION
If Congress has passed a law and it is a lawful exercise of
congressional (enumerated) power, the question is whether the
federal law preempts state or local law b/c of the Supremacy Clause.
LIMIT #3: Privilages and Immunities
Article IV §2: ?The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.?This has been interpreted to mean
that one state cannot discriminate against out of staters w/ regard to fundamental
rights or important economic activities.

WAYS TO FIND PREEMPTION

DIFFERENCES b/w PIC and DCC
(1) federal law expressly preempts state or local law
1. PIC can only be used if there is discrimination against out of staters. DCC can
(IF CONGRESS ALLOWED PER ENUMERATED POWER;
be used to challenge laws that burden interstate commerce, regardless of
whether they discriminate against out of staters.
(2) preemption is implied by a clear congressional intent to
preempt state or local law.
2. Corporations and aliens can sue under the DCC, but NOT under PIC.
EXPRESS PREEMPTION
3. Congressional approval and market participant exceptions DO NOT APPLY to
the only issue here is whether a state statute falls w/in the area
preempted (e.g. Statute says federal law preempts these kinds of PIC.
state laws, federal law preempts ? preemption clause itself is in
furtherance of one of Congress?s enumerated powers)
Has the state discriminated Fundemental Rights:
against out of staters w/ regard
IMPLIED PREEMPTION
to fundemental rights that it 1. Protection by the government
where preemption of state or local law is implied by clear
accords its own citizens? 2. Enjoyment of the life and liberty
congressional intent (PREEMPTION ALWAYS COMES DOWN TO
3. Right to acquire / possess
CONGRESSIONAL INTENT)
property
4. Pursue happiness and safety
NO YES
CONFLICT: 5. Earning a livelihood (See NH
State law would make it literally impossible for individuals to comply Case & Camden case)
w/ both state and federal law.
Is the discriminaiton
SUBSTANTIALY RELATED to a
PURPOSE substantial state interest? Is
Where state law stands as an obstacle to the accomplishment and there a SUBSTAINAL REASON
execution of the full purposes and objectives of Congress. for the difference in treatment?
(E.g. McCulloh MD Tax & National Bank) (i.e. is the discrimination
necessary to achieve
FIELD
interest?) NO
Where the scheme of federal regulation is so pervasive as to make
reasonable the inference that Congress left no room for the States to YES
supplement it? the federal law occupies the field and state law
cannot occupy it.
*HEAVY INVOLVMENT OF CONGRESS IN X AREA*
SEE Crosby & PSEG (LOOK AT PURPOSE OF LAW)
LAW VALID LAW INVALID

NO PREEMPTION ON LOCAL MATTERS

Federal law preempts state law when the subject matter of the law PREEMPTION
concerns a national interest. Subject matter related to local matters &
cannot be preempted by the dormant commerce clause (e.g. PIC
regulating pilots). (SEE Cooley)