I.

JUSTICIABILITY
1. Spotting the issue:
Triggers.
Aesthetic injury (imminentdefinite, inevitable)(Lujan)
Speculative injury
Citizen suit provision
Quasi sovereign interest is created: Sovereign entity (Mass v. EPA)
Guaranty Clause Claim = NJPQ (Luther v. Bordan)
Impeachment of Judge (Nixon)
Congress Line Item Veto (Raines v. Byrd)
Associational standing. (If one member can sue, the organization or if the organization
is harmed as a whole)
(An organization may only sue on behalf of its members if the prudential limitation that
militates against 3rd parties has been waived by Congress (Lujan))
Rationale of standing:
Limited jurisdiction/Separation of powers: courts power to adjudicate w/out political
accountability must be checked
Competency/vigorous advocacy: a party w/ a real stake will zealously litigate and create
digestible information
Resources/Limiting quantity of litigation: concern that subpar quality and quantity
litigation would overwhelm courts
Parties vs. Public: courts should only hear cases from real parties; public should use
political process; just b/c there is a constitutional violation does not mean that the Court
will hear the case
2. Framework
Framework: Case or Controversy Requirements (Justiciability Doctrines)
Rule. If one of the justiciability doctrines is violated, the court will not hear the case.
1. Advisory Opinion (Pr. / Con.) opinion that does not involve an actual case
regarding the constitutionality of a pending legislation or questions referred to the
judiciary by other branches of the government
2. Constitutional Requirements:
a. Actual, concrete dispute, adversarial Actual CASE between adverse litigants
b. Substantial likelihood that the courts decision for P will actually effect him
Courts decision will be FINAL
3. Standing (Article III and Prudential strands)
4. **Constitutional Requirements**
a. Injury in fact. P must show that he has suffered a particularized injury that
is concrete, real, and imminent
i. Counts. Bodily, professional interests, financial, vote dilution, loss
opportunity/race, aesthetic offense (Lujan), associational standing,
procedural right to protect a concrete interest (EPA)
ii. Doesnt Count. Mere Procedural Injury (Lujan lack of consultation with
other departments which is procedure), Not particular or imminent
(Lujan needed a ticket)
iii. Exceptions. Associations see below
a. Causation.
i. Counts. Fairly traceable to s conduct, contributing factor, or fairly
attributable. (EPA)
CON LAW ISSUES OUTLINE 1

ii. Doesnt Count. Intervening 3rd parties (Allen tax exempt racist schools)
b. Redressability. must show that a favorable decision by the court
will redress s injury. needs standing for ALL remedies sought:
compensation, injunction, or declaratory relief
i. Counts. Partial redressability is good enough! (Mass)
ii. Doesnt Count. Ultimate person responsible not a party to suit,
speculative redress (Lujan)
2. **Prudential Requirements**
a. Prohibition on 3rd Party Standing - Exception:
i. Associational Standing: organization injured or sue for all member
(economic) 1) each can sue on their own behalf, 2) interest is related
to associations purpose 3) members dont need to be present (NAACP);
b. Prohibition on Generalized grievances if injury is merely as a citizen, he is
prohibited from bringing suit to force government to enforce laws (taxpayer
Lujan; loss of political power Raines) - citizen suit provision?
c. Prohibition on Suits outside the laws zone of interests.
i. Zone of injury congress expected this kind of injury would be
addressed under the statute or constitutional provision
ii. Zone of interest the party is within the zone of interest protected byt
eh statute or constitutional provision
3. Mootness
a. there must be an actual controversy that exists at all stages of review,
including appeal, not just at the time the complaint was filed.
b. Cases are moot if something happens after the litigation has begun that
deprives the Article III court of an actual controversy
c. Controversy must not arise too late (settlement, P dies, settlement, law
repealed) exception: events capable of repetition but evading review, ie. Roe
d. court must dismiss case if becomes moot
4. Ripeness
e. a dispute is too remote or speculative to warrant judicial action if it is
insufficiently developed and brought too soon.
f. A person cannot seek a pre-enforcement or anticipatory review of a statute in
federal court leads to an advisory opinion because no real or imminent
injury yet
i. Parties can go to federal court and askf or a declaratory judgment (ie.
Against a statute they find unconstitutional) because we want people to
be able to challenge statutes
g. Controversy must not arise too early, (e.g. threat prosecution, preenforcement review) exception: declaratory judgment
5. No Political Questions (Pr. / Con.) Analysis: [Baker v. Carr standards for
determining whether NJPQ]
p[pIf all other standing requirements have been met, the court may still decide not
to hear a case because it is a Non Justicible Political Question
h. Does the constitution commit the issue to other branches? question turns on
the interpretive power of the court, which is broad (Marbury, Cooper) (textual
restriction)
i. Is there a judicially discoverable and manageable standard for resolving this
issue? (Is there a standard by which the court as a court could decide the
issue? If the court needs specialty in the issue, it may refrain from
deciding. Judiciary may not have tools to decide) (prudential)

j.

If they decide, would they be laying out a nonjusticible policy? Sometimes,

impossible to decide something without an initial policy determination that
should not be made by the judiciary: requires non-justicial discretion.
Prudential (Practical Considerations): (3) could only decide if policy decision
was made first is it in their power to set down the law first? (4) would show
lack of respect to other branches/ are they assuming the job of another
branch? (5) adherence to previously made political decision (6)
embarrassment of conflicting signals from different branches
k. Taking on the issue may disrespect another branch
l. Need to defer to a political decision already made - nixon v. us
m. Maybe gov needs to speak with one voice if something that seems like a gov
Q or exec Q - need one body speaking to avoid confusion
n. Categories Approach: Other NJPQ:
i. War / Foreign Relation Categories of traditionally unreviewable Political
Questions: (1) One uniform voice required; (2) foreign relations matters;
(3) war end / begin; (4) recognition foreign governments; (5) treaties /
executive agreements; (6) diplomatic relations; (7) executive war
power; (8) Deployment of armed forces abroad.
2. PQ Reasoning: Separation of Powers, Efficiency, Judicial Check/Self-Interest,
Improves Decision, Expertise
3. Language
Background. The Justiciability doctrines help reinforce separation of powers between
political branches by limiting what issues courts can decide. This enables the courts to
preserve their resources for cases that require adjudication and the separation of powers
for other government branches. The justiciability doctrines have two general schools of
interpretation: constitutional, stemming from article 3, and prudential, stemming from
prudent judicial administration.
Standing is the determination of whether a a party can bring a matter for adjudication to
court. Standing has both constitutional and prudential elements. The three constitutional
requirements for standing are injury in fact, causation and redressability. The prudential
standing limitations include generalized grievances, zone of interest, and limit on 3rd party
standing.
PLAINTIFF:
The plaintiffs injury must be fairly traceable to s conduct (MA v. EPA)(injuries to
economic rights (New York v. Clinton), aesthetic counts (Lujan)).
o A mere procedural injury is sufficient according to Blackmun (Lujan)
o Law created right to sue if specific injury is IDd see Kennedy in Lujan
Cause (incremental reduction / contributing factor (MA v. EPA)
Redressability. Partial redressability is okayreduced not eliminated (MA v.
EPA)
PQ. See framework
Quasi Sovereign have relaxed standards and deserve special treatment since
statute gives them a procedural right. (EPA) No precedent.
DEFENDANT:
Injury. Not imminent. Must be immediate and this is not. No Injury. Distinguish.
That was a state actor
CON LAW ISSUES OUTLINE 3

Cause. Intervening 3rd party cuts the causal chain (be wary of statutes there the
government is influencing 3rd parties who are in turn injuring or causing injury to the
P where redressability against the government would be irrelevant (Allen)
Redressability. Wouldnt be able to address the problem anyways. Intervening 3rd
party. India / China.
PQ. See framework
EPA Distinguished since state (as sovereign) might have relaxed requirements.

Political Question Doctrine. Under the Political Question Doctrine, the Supreme court
has held that courts should not rule on certain issues, despite fulfilling standing,
mootness, and ripeness, since these claims subject is still inappropriate for judicial review
(Baker, US v. Nixon). These issues should be left to the other political branches, since
they are in a better position to answer them. The PQ doctrine is governed by a 3-part test
established in Baker v Carr that contains both constitutional and prudential concerns. The
constitutional branch turns on whether there has already been a textually demonstrable
constitutional commitment of the issue to another political branch. The prudential branch
contains five parts. First, there needs to be a judicially discoverable and manageable
standard for resolving the issue in question. Next, the court must assess if, by deciding,
they would be laying out a nonjusticible policy that requires non-justicible discretion.
Third, taking on the issue cannot disrespect or overstep the boundaries of another branch.
Fourth, the court must defer to political decision that have already been made. Lastly, the
court should ensure that the government is speaking with one voice, and avoiding
speaking when a question seems like it belongs to another branch to avoid confusion.
Historically, the court has also stepped in to remedy a representation reinforcement
problem when the political process itself wont be able to fix the problem (Baker v. Carr).
II. FEDERALISM
McCulloch v. Maryland (1819) scope of Congresss enumerated power: vast
expansion of federal power; relaxed standard for necessary and proper
FACTS: Many states object to charter of 2nd US Bank pursuant to Congressional
statute; MD tries to tax bank. Congress has the power!
HOLDING #1: Court says YES, uses 4 modes of argumentation:
o Historical Experience Justification
Political Safeguards of Federalism = states are represented in Congress;
thus Courts should stay out
Power was already consented to at very early period of American history
(framers thought it was constitutional); recognized by successive
legislatures and acted upon by the judiciary
Its existence creates a presumption of constitutionality (despite absence
of any previous SCOTUS review)
o Rejection of Compact Federalism
MD argues that the Constitution was created by compact of states, who
chose to give some powers to the fed govt states are ultimate
sovereign power, and can tax if they so desire; the fed govt cannot act
in a way that disturbs the states
Marshall argues core sovereignty is retained by the people, not the
states federal government acts on behalf of all the people, who
ultimate source of authority

Representation reinforcement: theory is that sovereignty lies w/

the people & therefore statutes cannot stand btwn people & fed
govt; states cant limit the grant of power to Congress
o Congress has incidental/implied powers
Constitution is silent as to where to assign the authority; Constitution
should be interpreted broadly in favor of the people
Federal government, though limited in its powers, is supreme in its
sphere of action (if Congress were stuck with Art I, Section 8, the fed
govt as we know it today wouldnt exist)
o Necessary and Proper Clause is an affirmative grant of power to Congress,
not a limitation/restriction on that power
Art. I, 8 allows Congress the power to execute the foregoing powers
(enumerated powers)
MD interprets this clause narrowly, as a limitation on congressional
power: necessary = absolutely necessary (unless Congress can show
it is absolutely necessary in order to carry out those foregoing powers,
then Congress doesnt have the power). MD argues bank is not
absolutely necessary
Marshall is reading it as what is conducive to: about the placement of
the clause: structurally, why would necessary & proper be at the end of
the section as the enumerated powers? He reads this as an expansion
Deference Congress must be allowed to select the means of executing
its enumerated powers so long as the ends are constitutional
If Congress acts outside enumerated or implied powers, Court will
strike it down
Reasonable Relationship Test: Check on Congress implied &
incidental power: are the means (creating a national bank)
rationally or reasonably related to the ends (facilitating an
enumerated power, like commerce/coining money/spending/
taxation, etc.)?
o YES! So the charter allowing Congress to create a national
bank = constitutional!
ISSUE #2: Can Maryland tax the bank is it constitutional? (May a state tax an
institution created by Congress pursuant to its Constitutional powers?)
HOLDING #2: NO. States may not tax instrumentalities of the federal government
o Marshall sees a conflict: Congress has the power to create it, but if state has
power to tax, the state would have the power to destroy the bank (they can
tax it out of business)
o States may not tax instrumentalities of the federal government (general rule)
Court implies from the Supremacy Clause (federal law is supreme) that
if Congress has the power to create it, then state cannot have power to
destroy it Court creates a structural immunity for federal
instrumentalities
IMPACT: Vast expansion of federal power; relaxed standard for necessary and proper
o Rejects compact federalism and emphatically declares the federal
government is supreme over states in its sphere of operation and states have
no authority to negate that action

CON LAW ISSUES OUTLINE 5

o Expansively defines the scope of Congress power test of validity is whether

Congress might reasonable find a relation between the law and federal
powers
o Limits the ability of states to interfere with federal activities by imposing taxes
on federal govt
o Representation Reinforcement: courts must fix this problem as the normal
operation of the political process will not
CRITIQUES: The people of the US didnt really need the Courts help? The US could
have passed a statute about this and not have the Court step in; The Bank didnt
really need the Courts support to protect its rights; Its a pretty judicially activist
case; Court could have dealt with the 1st section but not with the second section of
the case (where Marshall says you cant tax an instrumentality of the federal govt)

VALUES SERVED BY FEDERALISM: two levels serve to protect individual rights

Vertical separation of powers: between the federal & state governments (framers
gave more power to states, less to fed govt)
Horizontal separation of powers: legislative, judicial, and executive
Values promoted by state autonomy:
o State and local governments can deal w/ problems that vary geographically
by tailoring policies to fit locally varying circumstances
o State and local governments can compete for citizens and investment by
offering varying policies to accommodate diverse preferences, needs, &
ideologies, enabling citizens to vote with their feet by choosing where and
how they will be governed
o State experimentation in social policy can yield new practices later adopted
elsewhere in the nation
o The smaller scale of state & local government enables the government to be
closer to its constituents, making it more responsible and accessible to citizen
needs.
o Particular federal powers may prove especially dangerous at the national level
b/c they are subject to particular abuse in one faction captures control
Values promoted by national policymaking:
o National regulation can respond to negative externalities by which activities in
one state impose costs on those resident in another state (hard for states to
be well-positioned to deal with big problems (ex: air pollution in Lujan)
o National government can provide certain public goods that any state
government will under-produce b/c it is subject to free riders and cannot
completely capture the benefits of its investment
o B/c of its larger scale and collective resources, the national government can
provide better social insurance against unexpected disasters and vary
geographically in their incidence (social insurance for larger problems; ex:
natural disasters)
o National government can redistribute resources among the populations of diff
states whose citizens enjoy greatly unequal wealth and income (because of
spending power)
o National regulation can prevent the destructive aspects of competition among
the states
o Maybe the states as experimenters might be overdone (might not be
experiments as much as we think)

III. COMMERCE CLAUSE

1. Spotting the issue:
Triggers.
Two states.
A physical commodity, goods.
Mobility. [people/things that move or have moved through commerce]
Any information about markets and manufacturing location
Any distinction between production and distribution
Things that regulate the floors and ceilings of wages (people)(Darby)
The market share of those who grow/etc for personal consumption (Raich)(Wickard)
Civil Rights (Heart of Atlanta, Katzenbach)
Congressional Findings.
Races to the bottom.
Blurred accountability (Lopez)(Kennedy)
Justified judicial intervention, representation reinforcement (Baker v. Carr)
Omnibus federal bill (broad) with an as applied (narrow) challenge (Raich)
States as labs of experimentation (OConnor progressive causes in Raich)
o Abortion; stem cell; assisted suicide; reproductive rights; same sex marriage.
o There is nothing inherently conservative or liberal about federalism; though
there is within a specific pendulum swing.
Traditional state role, police powers.
Morality is often akin to state police powers (Morrison mere morality; Katzenbach for
commerce + morality)(cite to Goldberg), Congress can regulate in moral areas as
long as it can find a comprehensive economic regulation).
Jurisdictional nexus in statute itself. (Lopez) [drafting had traveled through
commerce]
Legal Uncertainty: going forward; an example of legal uncertainty how the court treats
precedent what category is Heart of Atlanta; forward looking?
2. Framework
Congress Can Regulate Three Things:
(1)Channels of interstate commerce, prohibiting the movement of things through
interstate commerce (roads, airways, waterways, hotels [Hearst of Atlanta],
restaurants [Katzenbach]).
(2)Instrumentalities of interstate commerce persons/things moving through
Commerce: (trains, plains, automobiles) (trash i.e. negative commodity)
Jurisdictional Nexus. Drafting Congress can regulate things based on past
movement in interstate commerce. Save a congressional statute by adding a
jurisdictional nexus clause (guns previously moved in interstate commerce
adding this language to the Gun/School statute in Lopez saved it).
(3)Substantial Effect. Things that substantially effect interstate commerce this
category is limited to things that the court deems to be economic! Economic v.
Non-Economic Analysis:
Economic may be interpreted more broadly after Raich Drafting Bill Broad Comprehensive Scheme
CON LAW ISSUES OUTLINE 7

4
i.
ii.
iii.
iv.

Considerations (Morrison):
(i) Is Congress regulating economic activity?
(ii) Jurisdictional element?
(iii) Congressional Findings? Findings are helpful, but not dispositive - Lopez.
(iv) Attenuation, too many steps? (Similar to Lopez education argument to
commerce).
RATIONAL BASIS the court wont defer to congress when the single state
intrastate activity is not economic or commercial, when it is, the court will defer
to congress: as long as congress reasonably believed that regulating the
noneconomic intrastate activity could have a substantial effect on commerce.
The court does not completely defer to congress it depends on the nature of
the activity economic/ commercial:
i. If its not economic activity it will be presumed not to be commerce and the
court wont defer (Lopez)
ii. If it is economic the court will give deference to congress as long as theres a
rational basis (Wickard)
Aggregation for Non-Economic Activities. Congress can regulate noneconomic if doing so is reasonably adapted to a larger regulation of economic
activity, otherwise congress can aggregate when economic.
If cong regulates at high enough level of generality and comprehensiveness
(production, distribution, consumption, such as in controlled substances) it may
regulate non-economic activity that taken in the aggregate congress could
reasonably believe substantially affects interstate commerce.
This is internal analysis, and then go to external constraints (10th Amendment).
3. Language
Background:
Article I, Section 8, Clause 3: The Commerce Clause is one of Congresss enumerated
powers. Under McCulloch v. Maryland Congress can use reasonable measures to wield
their enumerated powers.
From the New Deal until 1995 the Court was extremely deferential to congresss exercise
of its Commerce Power. In 1995, however, the court moved towards a less deferential
method of evaluating whether the legislatin in question sufficiently related to a matter of
interstate commerce. Lopez and Morrison revived internal constraints on the Commerce
Power in light of congresss article 1 section 8 authority, and additionally pursued external
constraints as seen in X and Y cases. Regardless, the court has shown that it will continue
to defer to congressional laws that concern interstate commerce.
Rule:
Congress may regulate within three general categories, such as the use of channels of
interstate commerce, such as highways, waterways, and airspace; instrumentalities of
interstate commerce, such as the people or things moving through interstate commerce,
including cars, boats, airplanes, and shipments of goods; and intrastate activities that
have a substantial effect on interstate commerce. (Lopez affirmed in Morrison),
TO satisfy the third category, one can use the four step test outlined in Morrison. Here
_______.
First, one must assess whether the intrastate activity is economic in nature. (If Y,
deference, but not dispositive: must meet rest. If no, presumptively unconstitutional, only
upheld if there is a real factual basis between intrastate non-econ activity and interstate
activity)

Next, one must assess whether there is a jurisdictional element in the statute
that ties the activity to interstate commerce. (if Y, actually provides link between
statute and regulation want to establish that federal cause of action is in pursuance of
Congresss power to regulate interstate commerce. If no, doesnt work).
Then, one must assess whether there are sufficient legislative findings. These
findings, although not required nor dispositive, are persuasive. (Lopez) Here, the court
found ___. Certainly, these findings would help persuade a court that the statute falls
under the commerce clause.
Finally, we must assess if the activity is too attenuated. (if Y, There are too many
steps needed to bridge the gap between regulating a local activity to an impact on
interstate commerce. If congress were to regulate this activity, similarly non-economic
and traditionally state activities, such as __, could be regulated. Courts definition of
economic activity is breathtaking and threatens to sweep all of productive human activity
into federal regulatory reach. (OConnor in Raich). If no, say how there is a rational
basis / significant connection non-economic things may be aggregated if the activity is
necessary to regulate under a broader regulatory scheme, or Leaving a home grown or
local non-economic segment of the market unregulated would affect congress ability to
regulate the national commerce market generally (Raich))In Lopez, the court held that the
argument against the presence of guns in school zones because of its negative impact on
education was too attenuated to interstate commerce and, if it were to be held as a
substantial impact, anything could be considered to substantially impact commerce and
therefore anything could be regulated.
Ultimately, the court will defer to congress decision about an activity substantially
affected interstate commerce if the activity is economic, so long as there is a rational
basis under Wickard.
Even if one would say this is not economic and therefore would be inappropriate to apply
the substantial affects test it may still be regulated by applying the test in Raich, which
allows the regulation of activities which are part of an overall economic class in broad
regulation.
** If federal law is valid (use Raich, Wickard, Darby
Category Pigeon Hole. Argue for a category; aggregate activity through congressional
findings. Stages of production no longer an issue.
Aggregation. Leaving a home grown or local non-economic segment of the market
unregulated would affect congress ability to regulate the national commerce market
generally (Raich, Wickard)
Broad Regulation of Commerce (Ominous) v. Narrow As Applied challenge.
Non-economic things may be aggregated if it is reasonably adapted to a larger
economic activity, under Raich Rational basis; significant connection. Raich.
Intrastate activity that substantially affects interstate commerce is valid (Darby and
WIckard)
Historical Cases. Can bring in history for broad scope of Commerce Power. (Darby)
Congressional Findings demonstrate substantial effect on interstate commerce,
which helps.
Indirect. Look at affects on commerce not the actual harm itself, rejects direct test
and moves toward substantial affects test (NLRB)
Rational Basis (civil rights cases) As long as rational basis and the means were
reasonable and appropriate. (Even if little far fetched and wrong) (Breyer Dissent
in Morrison more deferential).
CON LAW ISSUES OUTLINE 9

Criminal Law Has economic effect (Perez loanshark)

**

if Fed law is invalid (use lopez, Morrison)

Non-Economic. Cant aggregate non-economic [unlike WIckard] (Morrison)
Narrow Bill. (Distinguish Raich)
No Jurisdictional Element which limits congress reach and not too broad (Lopez)
Congressional findings (only helpful not dispositive)
Attenuation. Too many steps are required to make the leap from regulating local
activity to the effect of interstate commerce. On that theory congress could regulate
all traditional state activities (marriage). Courts definition of economic activity is
breathtaking and threatens to sweep all of productive human activity into federal
regulatory reach. (OConnor in Raich). Compare to good cases. Majority of Lopez.
AS Applied Challenge dissent in Raich
Traditional Police Power. This is an area in which the state has traditionally
regulated (education, crime, marriage, zoning). Congressional regulation in this area
raises a political accountability problem, as expressed by Justice Kennedy in (Lopez)
Labs. The states are laboratories of experimentation, as suggested by Justice
OConnor (Raich). Congressional regulation in this area trenches on state sovereignty
and raises concerns of federalism.
Conclusion: The scope of Raich is unclear, since this is an area in which the court has
decided differently throughout history & Kennedys pivotal role.
The scope of the commerce clause has changed back and forth over time so harder to
predict. Thus, a degree of legal uncertainty attaches to the use of past precedent in
predicting future outcomes.
IV. COMANDEERING 10th amendment violation
1. Triggers
Triggers.
Traditional Police Powers. Fire, police, sanitation, education, marriage, zoning,
public health, parks and rec
Affirmative Duty (NY & Printz) v. Prohibition (Reno).
o You must. (Fed cant do this, commandeering) v. You may not (prohibition:
fed can do this)
o Problem is hard to properly categorize. Can go either way.
o Does the federal statute solicit state action?
o See Reno Selling Licenses: prohibition constitutional.
Hard Choice
o Does the federal statute force the state to make a hard choice between two
bad options? (New York Radioactive waste) take title or build according to
federal mandates)
o This bad choice forces the state to subsidize X
Political Accountability
o Has the federal statute blurred lines of political accountability? This is evident
in areas of traditional state regulation (crime, education, marriage, zoning)
where citizens wont know who to vote out.
o Is the federal statute an affront to core state sovereignty?
Discretionary Acts v. Ministerial Acts (Printz Brady Guns CLEOS)

Does the Federal Statute Regulate the States as States or as Private

Owners?
o Does the federal statute regulate the states as private citizens (Reno
database owners)? Congress may prohibit individual conduct without running
afoul of the 10th Amendment so long as it does not create an affirmative
mandate or duty upon the states to enact or enforce the law in some way.
FLSA minimum wage. (Garcia National Coordination to prevent races to bottom, no
external)
2. Framework & Alternatives
Is it an affirmative duty or prohibition? Is Congress regulating the states as
states or as private citizens?
Framework.
Is this federal scheme more like New York and Prinz where commandeering was
found, or like Reno in which the federal statute was a mere prohibition against
harmful activity?
Alternatives
Use the spending power to condition, motivate and encourage state behavior.
Would require the 4 Dole requirements of helping general welfare; unambiguous;
germaneness; and no other constitutional bar. Discuss OConnor that is less
deferential and doesnt like loopholes from Dole case.
Regulate directly and it would be valid under the supremacy clause.
3. Language
Background. Congress potentially violates the 10th amendment whenever it displaces
the states freedom to create and structure internal operations in areas of government
traditionally controlled by the states, because it impedes their decision-making ability.
The 10th amendment protects state governments from federal laws and regulations that
infringe on state government powers.
The 10th Amendment can be an external restraint on the commerce clause when it
commandeers the legislative process (New York) or if it attempts commandeering state
officers to enforce a federal regulatory program (Printz).
Congress may utilize the Taxing and Spending clause to incentivize states comply with
federal legislation, but it cannot coerce the state legislature to enact certain laws, and
cannot dictate how those laws are enforced.
If congress were able to coerce the states into passing certain laws, state sovereignty
would be threatened, the lines of political accountability would become blurred, and state
citizens would not be able to know who to hold accountable. However, the court in Reno
held that the 10th amendment is not an external constraint when the regulation being
handed down to the states from congress is a negative prohibition.
However, federal preemption of state law does not always violate the 10th amendment.
Here, this federal law does not try to commandeer state law, because ___. If this were
considered commandeering, then every conflict and every preemption would also be
considered commandeering, and then any sort of preemption would be considered
against the 10th amendment and therefore not constitutional. As such, commandeering
should be limited to when congress instructs state government to regulate in a certain
way pursuant to a particular federal regulation. Here, it is only utilizing the powers within
CON LAW ISSUES OUTLINE 11

the supremacy clause to invalidate a state law that goes against the federal directive, not
commandeering the state to regulate.
Rule. The 10th amendment is violated when congress utilizes its commerce
clause power to impose an affirmative duty upon a state. (New York take title
provision). Congress cannot impose regulations on states that force them to regulate
their people according to how congress feels is right. However, when congress is merely
prohibiting a harmful activity, or regulating the state as if it were a private individual or
business owner, there is no 10th amendment violation, and the 10th amendment does not
function as an external restraint. (Reno shall not sell drivers information).
Analysis. In New York, a congressional statute that required states to take title to
nuclear waste was interpreted as commandeering. The court held that the provision was
coercive, in that it forced states to take on private parties nuclear waste, an area that
traditionally is reserved for the states. This legislation would coerce state action and
would blur political accountability for the action, leaving citizens unable to figure out what
party to hold accountable for the new procedure for nuclear waste.
Fed Law is Invalid- Plaintiff
10th amendment IS a distinct external limit
Commandeering / Affirmative Hard Choice. Fed Law Forces States to Make
Subsidy to State Citizens. It is unconstitutional for Congress to compel state
legislatures to adopt laws or state agencies to adopt regulations. (New York) Hard
choice.
Court must step in: this blurs lines of political accountability. State voters
adversely affected wont know whom to blame. (New York)
Policy Reasons: state and local governments can tailor policies to fit the specific
needs of their citizens; states are laboratories of experimentation that can yield new
practices later on; more accessible and closer to citizens. Decrease likelihood of federal
tyranny. This statute is an affront to core state sovereignty.
Discretionary. The act forces discretionary actions, reduces states to mere
handmaidens (accountable for a decision they didnt make). So no political
accountability problem here.
[States = labs of experimentation]
Fed Law is Valid congress
10th amendment is only a truism and reminder!
Mere Prohibition. Against harmful activity.
Policy: Can deal with negative externalities that flow across state boundaries; provide
certain public goods; can provide well against catastrophes; can spread wealth across
states; can prevent destructive competition and races to the bottom among states;
protect against tyranny of local officials. Preventing national coordination problem.
Political Safeguard of Federalism. Federalism is already safeguarded by the
political process. 10th Amendment is but a mere truism. Court should not intervene
where no failure of the political process (Darby)
Theory: consent when the fed law was passed by governors of state so cant
complain now (Dissent in NY).
Ministerial. Mere ministerial Act not discretionary.
Rationale: prevent race to the bottom

V. SPENDING & TAX

1. Triggers
Triggers.
Tax v. Subsidy. Rebates.
Elderly individuals, Medicare, Medicaid, unemployment, crime control, highway
construction, welfare
Problem of national economic coordination / wage races to the bottom?
Does the federal statute involve money, taxation, subsidies?
Does the federal statute provide extensive legislative findings?
Is the government withholding money would normally be giving to state?
Is there a percentage? If so, focus arguments on mythical out limits of coercion.
2. Framework - SPENDING
In South Dakota v. Dole (Drinking age highway funds), the Court delineated four
limitations to the use of the Spending Power:
(1) Promotes General Welfare the exercise of the spending power must be in
pursuit of the General Welfare (Butler). Adopts broad Hamilton view.
(2) Clear Statement Rule regulation must be enacted unambiguously, allowing the
States to exercise their choice knowingly, cognizant of the consequences of their
participation. clear knowledge
(3) Germane There is a reasonable relationship between the conditions of the grant
and the federal interest in the program. VERY deferential, unlikely to get overruled by
this requirement!
(4) No Independent Constitutional Bar Congress cannot induce the States to
violate another provision of the Constitution. For example, congress may not require
the states to violate due process, equal protection or the ban on cruel and unusual
punishment (Butler).
i. OConnor Dissent says that if the constitution doesnt let you do this directly then
you cant do it indirectly with conditional spending power. Spending power isnt to
be used as a loophole.
(Final Test) Outer Limits of Coercion, approaching commandeering Even if it
meets the 4 part test it can still be knocked down for coercion. Never defined by the
court. Merely theoretical. (5% in Dole is definitely allowable, but even though another
statute has a higher percentage is so deferential that a condition is unlikely to be
coercive. There is a point where incentives turn into coercion. BUT this standard is almost
never met.
*** 3 more elements in a post-sebilius world
1. Significant change to the program
2. State reliance on settled expectations
3. Overall amount the states would lose
o National Federation of Independent Business v. Sebelius: narrow
interpretation of spending power: Congress cannot impose new condition by
threatening an old entrenched program b/c coercive (uses Dole test)
FRAMEWORK TAXING
Congress cant use power to tax to get around constraints imposed by the
Commerce Clause
Congress may use its taxing power to raise revenue but not as an end-run to
expand its Commerce Clause Power
CON LAW ISSUES OUTLINE 13

Post-Sebelius: When will Congresss taxing power cross the line?

o When the use of that power becomes so punitive that its obvious it is to
regulate
o The taxing power can be used to regulate as long as it is collecting revenue,
but not solely to penalize in areas where Congress otherwise not tax

ASK:
Does it look like a tax? does the IRS take it?
Does it produce revenue for the government?
Is it overly excessive payment as to compel compliance?
Does it have a scienter requirement? Like is it structured like a penalty (like

Power to tax: plenary power; not subject to other enumerated powers; but subject
to 10th Amend. and the Necessary and Proper Clause (Art. 1 8 cl. 18)
o Bailey v. Drexel Furniture Co.: does not allow Congress to use its taxing
power to regulate & to expand its Commerce Clause Power
o National Federation of Independent Business v. Sebelius: allows
Congress to use its taxing power to regulate

3. Language SPENDING
Background.
Congress can utilize its Spending Power from article 1 8 cl. 1 to induce, but not coerce,
states cooperation indirectly in places where it cannot directly regulate directly under the
commerce clause. Congress may utilize funding conditions to encourage states to follow a
regulation of national coordination under its pending power, but if the choice becomes
compulsory or overly coercive, the regulation may violate the 10 th amendment and no
longer fall under congress spending power. (dole)
Rule. In general, Congress may condition grants to state governments when the
conditions themselves meet four requirements: they must promote general welfare; be
germane, or there must be a reasonable relationship between the conditions of the grant
and the federal interest in the program; the regulation must be enacted unambiguously,
allowing the States to exercise their choice knowingly; and there is no independent
constitutional bar, as Congress cannot induce the States to violate another provision of
the Constitution
Assuming the regulation contains a reasonable condition for the states, it would not
infringe on coercion and would simply fall under inducement. This standard is rarely met
and therefore unlikely to be considered coercion here.
After Sebilius, there are three additional factors to consider: whether there is a significant
change to an already existing program; whether the states have relied on settled
expectations of a program; and the overall amount the states would lose if they were to
not abide by the condition presented.
4. Language TAXING
Congress can also utilize its Taxing power from article 1 section 8 clause 18 to use its
taxing power to regulate, but not coerce, state activity. Congress is not allowed to utilize
its taxing power to get around restraints imposed by the commerce clause. It may use its
taxing power to raise revenue, but not as an end-run in stretching the boundaries of the
commerce clause. Further, Congress cannot use its taxing powers to coerce states into
following a tax: if it acts as a penalty, it does not fit under Congress taxing powers.

To analyze whether a provision is a tax or a penalty, need to see if it meets the following
elements. First, must see if the IRS collects it in the way they would a tax. Second, assess
if it produces revenue for the government. Next, see if it is an overly excessive payment
as to compel compliance? Last, confirm it does not have a scienter requirement.
Federal law is valid
Framework Elements. Argue all 4 framework elements are present.
Germaneness. Reasonable Relationship. Findings. The federal interest in the
program is (insert facts herehighway safety from drunk driving) is reasonably
related because there is evidence in the record (findings) that (harm the statute seeks
to preventunderage individuals who cant drink in one state will cross state lines to
get booze in another state)
Not Coercive. Just an Incentive (New York). Solution to National
Coordination (Steward Machine). This is not a coercive action because were
trying to solve a national coordination problem (Steward Machine state social security
pools). This is merely a condition on spending. Facts / Analogy. Not having (old
age) benefits in one state will cause the needy to move out of state seeking benefits
and ruining the tax base of the original state. Want to avoid a national race to the
bottom.
Deferential Standard. The way the court has applied the four-part test in Dole, it is
so deferential that it is hard to imagine when a condition would be coercive.
No external limits. The court has never invigorated the 10th amendment in the context
of the spending power as it has in the context of the commerce power where there has
been a recent revival of federalism-based limits. Rather the court has repeatedly
endorsed broad congressional discretion regarding the scope of the spending power.
Federal law is invalid
Attack all four elements. Distinguish Doles highway funding program.
Coercion. High percentage. No this is a high degree of coercion and reaches the
outer limits articulated by Justice Rehnquist in South Dakota v. Dole. When the choice
becomes clearly compulsory (high percentage) it borders on commandeering and
might violate the 10th Amendment. No real standard.
Indirect loophole. Cant use their spending power to indirectly exceed their direct
power. OConnor dissent
Steward Machine Distinguished. Same ppl got taxed and benefited and not
earmarked for certain group; states approved the tax; and states can repel whenever they
want.
Conclusion
Therefore, this federal statute (which contains a condition on federal spending just like the
one in New York) is likely to be valid under the congressional Spending Power, and the
court is unlikely to raise an external constitutional bar in this area (South Dakota v. Dole).
More likely to find external limits on commerce clause than spending power as we see in
NY v US. Never had a 10th amendment violation for spending power.
VI. SEPARATION OF POWERS
a. Executive Powers Youngstown Framework
1. Triggers
CON LAW ISSUES OUTLINE 15

Triggers.
Domestic v. Foreign
Executive action where congress has been silent (when its domestic)
Theater of war
Emergency circumstance
Scope of the Executive Power
Congressional Acquiescence
Refusal to amend (Taft-Hartley)
Formal (Black) v. Functional (Frankfurter; Jackson)
2. Framework
Framework.
Jackson: Youngstown Steel Seizure
There are three zones of presidential authority under which a president may
act:
- Zone (1): Executive Power is at its maximum when the president is relying upon
his Article II powers and a Congressional Authorization (based on Article I). Such
actions that are constitutional or congressional are presumptively constitutional.
-

Zone (2): (Zone of Twilight): Executive Power is in a zone of twilight when

Congress has not yet spoken regarding the issue at hand. It has neither denied nor
granted authority. In zone 2, the president is trying to act on his Article II powers
alone. When deciding, the court should consider: intent of the framers; text of the
Constitution what is Article II saying judicial balancing. Emergency situation
might be a factor.
Counter in zone 2 it has the same implied powers that we are trying to avoid if
emergency situation is special. Plus if congress is silent it always goes to zone 2
then executives will have more power.

Zone (3): The Executive Power is at its lowest ebb when the President takes
actions in conflict with the Congressional authority (express or implied will). In this
circumstance, the President must have express authority under Article II;
otherwise his action is presumptively unconstitutional, and he is proceeding in the
teeth of congress. The court must find the Congressional statute unconstitutional in
order for the President to move forward. Presumptively unconstitutional
Here, the Presidents seizure of the steel mills fits into the 3rd Zone
because Congress has not left seizure of private property an open field but
has covered it by 3 statutory policies inconsistent with this seizure. By not
adopting the amendment, which would have allowed the president to do this
in the Taft-Hartley act, Congress has spoken.
3. Language
Background. Article II enumerates the presidents specific powers. However, the scope
of the presidents power has been up for debate. Questions about the presidents inherent
powers not expressly enumerated in Article II have drawn concern regarding separation of
powers.
-

Funcitonal v. Formal Approaches: Justice Blacks formalist majority view in

Youngstown was that it would be easy to preserve horizontal federalism if each branch of
the government were each placed in a box and each action fell squarely to a specific

branch. However, the different branches actions overlap in the federal government, and
more than one branch is necessary to complete nearly any government action, as
explored by Justice Jacksons functional view in Youngstown.

Article II Language. Take care to execute laws faithfully, Commander in Chief

Article I contains the language herein granted and article II lacks that limitation

Executive Functional, Jackson

Text / Structural inference. Article II: Commander in Chief: This is an exercise of the
Presidents military powers.
Functional Approach. Rigid distincitons separating the branches of government into
neat little boxes are unrealistic, and it makes the executive branch unable to respond
to emergencies. You always need multiple branches to get major things done
Acquiescence. Consistent and repeated acquiescence by congress creates a gloss
on executive power (Frankfurter Youngstown)
History and practice. Presidents have been doing this forever.
Inherent Power. The president has inherent power to respond to emergencies and
necessities. Under this analysis, the court adopts broad Hamiltonian view the lack of
words herein granted in Article II should be understood to mean that the president has
powers beyond those expressly enumerated in the constitution.
Plaintiff Formalist, Black
Categorical distinction between lawmaking and executing (analogize facts)
No Inherent Authority. This must only stem from acts of congress or the
constitution itself. Not even implied presidential power.
Executive was lawmaking Black: These provisions only apply to executing law, not
to take care with respect to making law. In this case the President was engaging in law
making.
Separation of Powers. In essence the President was engaging in tremendous policy
determinations, reserved for congress and legislative branch.
Domestic not Foreign. This is a domestic action, not a military action. The
Commander in Chief power extends only to the theater of war.
Conclusion. The category the court uses to classify the act depends on how the court
chooses to interpret congressional intent - as a failure to act in a specific situation, long
standing acquiescence in a particular field, or affirmative congressional action.
b. Executive Agreements
1. Triggers:
* Sup Court has never declared an Executive Agreement unconstitutional
Triggers.
Executive agreement
Termination of civil claims (Dames & Moore)
Unilateral executive agreement / Treaty
Claims tribunal
Foreign Affairs (not Domestic Relations Steel Seizure)
Surrounding statutes not on point
Congressional acquiescence / Broad Congressional Action
President Action during times of war
CON LAW ISSUES OUTLINE 17

2. Framework
(1)Has the President Acted? If so, Treaty or Executive Agreement?
(2)If Treaty, subject to Presentment and Bicameralism. (Needs Senate Approval), If
Executive Agreement; presumptively constitutional.
(3) Has Congress Acted? What have they said? Affirmative grant of power (Zone 1)?
Prohibition on Presidential Action (Zone 3)? Long acquiescence (Zone 2; possibly Zone 3)?
3. Language
Background. Treaties v. Executive. The judiciary will not bail out congress where
theyve been silent.
The courts have read congressional silence as indicative of Jacksons zone 2, not zone 3.
When the president makes executive agreements with foreign nations, no specific
authorization is needed. In Dames & Moore Justice Rehnquist read the surrounding
statutes and congressional silence as indicative of congressional acquiescence, placing
the presidents acitons in zone 2.
If the court adopts such an approach in the current matter it could find the executive
action to be a valid exercise of his article II powers (Dames & Moore).
A narrow reading of D&M suggests that only executive agreements prevail over a
conflicting state law, and are only permissible when authorized my federal statutes. This
reading leaves open the possibility that some future executive agreement might be
invalidated as usurping the Senates treaty approving power. However, the SC has never
held an executive agreement as unconstitutional by usurping Senates treaty approving
function.
Treaty: An agreement between the US and foreign country that is negotiated by the
President and is effective when ratified by a 2/3rd majority in the Senate.
Executive Agreement: An agreement between the US and a foreign country that is
effective when signed by the President and the head of the other government.
Note: D&M does not provide support for the assertion that the President has ability to sign
an executive agreement that would violate the Bill of Rights.
Rule. Executive Agreements Functional. In the area of executive agreements the
court will read the congressional record in toto and infer accordingly.
Executive Jackson, Functional
A presidential executive agreement is presumptively constitutional.
Zone 1. (If there is a statute at play) We are in Zone 1: Congress gave executive
authorization to
Historical Precedent. (If there is congressional silence) This conduct has been
engaged in by other presidents in the past for many years; therefore read
congressional silence as acquiescence in this practice Zone 2. Quote Frankfurter
from Youngstown, a systematic, unbroken, executive practice, long pursued to the
knowledge of the Congress and never before questioned may be treated as a gloss on
Executive Power vested in the President by Section 1 of Article II.

Plaintiff Black, Formal

Legislative Acts. The Presidents acts overstep his Article II powers; he has acted in
a legislative capacity. Violates the Separation of Powers.
Nowhere in the constitution, nor by any act of Congress, does the President have the
right totherefore we are in Zone 3 forcing the President to rely upon Article II
powers, and since the President has no inherent power, this act is unconstitutional.
c.
1.

Executive War Powers

Triggers
US citizen captured in foreign theater of war? (Hamdi)
Not a US citizen? (Eisentrager) OR Not in theater of war? (Milligan)
Statute Statute Executive Action
Statutory language: duration, necessary (AUMF Hamdi)
Jacksons tempered approach to an open duration, slippery slope (Youngstown)
How far does the theatre of war extend? Somewhere between Afghanistan (Hamdi) and
Chicago (Padilla)
***ASSUME whether or not war crime under Geneva convention (HAMDAN).
2. Framework
Framework. Hamdi. [ADD HAMDAN, BOUMEDIENE***]
(1) Congressional Statute 1. How broad or narrow is the language in the
congressional statute? (Likely the first statute will have prohibitive language: the
president cannot do X unless
(2) Congressional Statute 2. How broad or narrow is the language in subsequent
statutes? (Likely the second statute will have open language: the president can do
what is necessary or appropriate force or duration of detention tied to
indeterminate duration of the conflict)
(3) Presidential Action. Does the presidential action fit within the broad language of
statute 2?
The arguments on both sides are based on the breadth of the courts interpretation of the
statutes language. OConnor read the language broadly in Hamdi and justified executive
detention.
3. Language
Background. When it comes to combating terrorist threats, there are multiple concerns
regarding the scope of the Presidents executive power. War powers are split between
Articles I and II: whereas the president under article II has power to determine how a war
can be waged as the commander in Chief with the power to ensure that laws are
faithfully executed, article I grants congress power to declare war and to create and
support armies. Although the court has previously granted the executive deference during
emergency situations, the court does not give the president a blank check in suspending
individual liberties for the sake of handling an emergency.
In Hamdi, there was an executive detention of an American citizen captured in Afganistan
in the theater of war. The court discussed the major issue of wehther the president had
the power to detain Hamdi, and broadened the question by asking how the court
interprets language of the constitutional statues that touch on the issue. Similarly, in
Hamdan,
CON LAW ISSUES OUTLINE 19

Rule. The President may detain a US citizen as an enemy combatant so long as they are
captured in the theatre of war. (Milligan).
However, the detainee is entitled to particular assurances of due process, including a right
to hear the charges against him, a right to an attorney, and a right to challenge said
charges (hamdi). There, the court held that the burden would shift to the defendant to
prove his innocence in such scenarios (Hamdi). Additionally, unlawful military combats
are constitutionally entitled to military tribunals (Curian).
The legality of military tribunals raises policy questions about separation of powers and
the application of the constitution. Those defending the executive power argue that there
is a need for broad power to deal with terrorist threat. While others argue that check and
balances are necessary and that basic rights should not be compromised.
Executive
Zone 1. The statutes language is broad and encompasses this action. Reading the
statute broadly furthers its clear purpose to (Prevent a terrorist from returning to the
theater of war).
Acquiescence. Historical Acquiescence. Long-term congressional silence in this area
is a gloss on executive power (Youngstown)
Zone 2. Text/Structure. Article II gives the executive the power to act as the
Commander in Chief and to take care. This action is a how action, and fall within
the scope of the executives article II powers. Even without explicit authorization from
congress, this action is authorized.
Separation of Powers. The executive defines the scope of its war power. For the
court to intervene trenches on the executives constitutionally granted war powers.
Plaintiff
Formal (Black). The formal distinction between the executives and congresss power
prohibit the executive from taking unilateral action without statutory authorization
from congress.
No Emergency text in the Constitution suspends its terms
Functional (Zone 3). Even from a more functional perspective, congresss clearest
statement concerning this presidential action expressly forbids it, putting this action in
Zone 3. The executive acts in the teeth of congress (Frankfurter Youngstown)
Functional (Zone 2). The language in the statute does not reach this presidential
action, so Congress is silent and the executive proceeds on his article II powers alone
Due Process = Balance. Governmental interest v. individuals interest (Matthews v.
Eldridge)
Unitary Executive. Jacksons concern regarding the tyranny of a unitary executive in
Youngstown couldnt be more present than in this case.
Separation of Powers. Since executive has trenched on congresss allocation of war
powers the judiciary must step in to protect rights of the individual
Conclusion
As in Hamdi the ct is likely to construe statutes language broadly to encompass the
executives actions.

Does president have inherent power to send troops without congressional

declaration of war? Most are NJPQ
Presidential Power & War on Terrorism: Enemy combatants.** Distinction is where you get
picked up. If in theater of war then you can be detained like Hamdi, while Milligan was
picked up at home.
Rasul: Those being detained in Guantanamo have the right to have habeas petition heard
in fed. Court since it is like US territory.
Padilla: No jurisdiction. U.S. citizen arrested in IL cant be detained as enemy combatant
b/c captured in U.S.
Hamdi: Only const ruling. A U.S. citizen apprehended overseas and held as an enemy
combatant must be accorded some due process (notice, factual hearing, right to atty.
representation). Jackson approach applied.

Eisentrager German civilians captured in the pacific as enemy aliens did not have
Due Process Rights
Rasul Q of jurisdiction, Sup Court holds there is jurisdiction in GB because its under
functional control of the U.S. (Congress stripped jurisdiction under DTA but it didnt
work in Hamdan, and MCA which failed in Boumediene)
Padilla (In Chicago) AUMF doesnt provide enough congressional authorization for
detention under the Non-Detention Act
Hamdi (U.S. Citizen, but captured in Afghanistan), AUMF provides congressional
authorization and necessary authorization under the Non-Detention Act to detain U.S.
Citizen apprehended in foreign country as an enemy combatant valid exercise of
executive authority because its Zone 1 Congress has acted: presumptively
constitutional, (court doesnt address whether inherent power under Art II because
Congress has spoken). However, the court has a role to protect individual liberties and
weighs (under Mathews v. Eldridge), the public and private interest there has to be
notice of the factual basis for classification as an enemy combatant, fair opportunity to
rebut it, right to an attorney, however hearsay evidence is allowed and the burden of
proof is shifted.
Hamdan (alien, captured in Afghanistan, detained in GB, charged with conspiracy),
UCMJ gives the pres the authority to try in a military commission when authorized
either by statute or by laws of war the military commission is authorized, the issue is
whether it is authorized here Court interprets DTA and AUMF not to authorize and
conspiracy is not a law of war (only 4 votes) so this is ZONE 3 a military commission
against the UCMJ and the president needs to rely on Article II alone, procedures violate
UCMJ therefore military commission cant be used and the detainee has to be tried in a
regular court. [Habeas filed before DTA so not CSRT]
Boumediene (detained in GB, enemy combatant as determined by CSRT and Court
of App for DC Circuit according to MCA). MCA attempts to strip jurisdiction given in GB
under Rasul, ZONE 1 Article I and II working together MCA backs the president and
trying to strip jurisdiction issue of individual liberty court has to have oversight. 3
Factor TEST determines the Reach of the Suspension Clause: (1) citizenship/status of
the detainee, (2) place of apprehension, (3) practical obstacles in resolving habeas
review should apply and theres no suspension of the writ: The suspension clause
applies to the detainees and has to be formally suspended, theres no formal
suspension in the DTA or MCA AND (2) the CSRT is not an adequate substitute for
habeas (b/c cant consider exculpatory evidence). Even though this is ZONE 1 Art I +
Art II theres an external constraint: violation of the Suspension Clause another
provision that prevents action its not an Article II violation of power.
CON LAW ISSUES OUTLINE 21

d. Separation of Power Violations

1. Triggers
MAKE SURE HAS STANDING!
Avoid agency capture
Adjudicatory proceedings within an agency [exercising all 3 branches power
simultaneously]
Lawmaking without meeting the requirements of lawmaking (Bicameralism and
Presentment)
Concurrent or simple resolution
Typical executive agreement areas immigration, rule-making, impoundment, foreign
trade, national emergencies
2. Framework
1. IS this an area that congress can traditionally regulate? If they can regulate then
they can delegate some of their powers. However they wish to retain some of their
power to check on agencies.
2. What was the nature of the power - Was it legislative?
a. If legislative, then it requires presentment and bicameralism. Did it happen
here?
b. Discuss Youngstown approaches.
Congress delegates b/c: expertise, rapid changes, buck passing
3. Language
Background. The non-delegation doctrine traditionally functioned to keep the legislature
from delegating its regulatory authority to the executive branch in a certain area.
However, with the rise of the administrative state, and the creation of administrative
agencies due to the growing volue and breadth of issues that call for congressional
regulation, the court has implicitly allowed congress to pass off its authority to
administrative agencies. Through this delegation, congress has been able to create
specialized agencies that, because of their expertise in whatever area, are more readily
able to respond to issues. As a consequence, congress can pass the buck by
simultaneously avoiding accountability for any of these agencies failures, and claiming
responsibilities for these agencies successes.
Congress has developed self-help options into legislation that delegates power. The one
house veto allowed congress to exercise subsequent authority over the agencies it
created without meeting the requirements of bicameralism and presentment, which were
otherwise necessary to enact legislation. This allows congress to retain a check on the
power that it delegated to the agencies.
Rule. A functional or formal approach makes a difference:
In INS v. Chadha, the Supreme Court found the one house veto unconstitutional, since it
effectively allowed congress to create laws without meeting the constitutional
requirements of bicameralism and presentment. Justice Burger adopted Justice Jacksons
formal approach from Youngstown that puts the legislative and executive branches in
individual constitutional boxes. However, Justice White adopted Justice Jacksons
functional approach from Youngstown saying the veto is constitutional because the
original bill had gone through the bicameralism and presentment requirements.

Line Item Veto [Raines v. Byrd Congressmen didnt have standing because the injury
wasnt concrete/particularized], [s here had standing to bring the claim] the President
can veto certain provisions after the bill has been signed into law CLINTON v. NY:
Majority held it was unconstitutional under a formal approach: the president is legislating
and engaging in law making in a way that is inconsistent with bicameralism: its after the
bill has become a law and allows veto of certain provisions, not of the whole. The
presentment clause is the presidents entire role: Constitutional silence is a prohibition
here. The president is legislating formal: legislative is separate from executive.
Dissent: functional approach: the president is executing the law, not legislating,
presentment was already met. The power co-mingle, cancelling a provision is not
amending law.
In favor of Congressional Statute
Analogize Enumerated Power. Congress has the power to deal with (issue
immigration) as an enumerated power to establish a uniform rule of naturalization.
Time Framing (BROAD): The requirements of bicameralism and presentment were
already met within the original legislation, allowing for the one-house veto (when the
power was originally delegated).
Hobsons choice Functionalism Necessary. Lawmaking cant happen in todays
world without the administrative state (and congressional delegation to it).so
congress either must give all or nothing to admin under a formalist approach (See J.
White, Dissenting, advocating a functional approach in this area)
Admin Rise. The rise of the administrative state requires an analysis under the
flexible approach, so that congress can legislate efficiently. See policy rationales
(above).
The formalistic approach ignores the current realities
Commingling. Outside of a small core of enumerated functions of each branch, there
will be more commingling because were in a more complicated world.
Problem waiting to happen. The rise of the administrative state is a separation of
powers problem waiting to happen, therefore, the courts need to step in to police the
boundaries.
Judicial Role should be more passive.
Plaintiff:
Exec steps out of Article II. Legislative action under the one house veto is
unconstitutional because it allows congress to act in a legislative role without meeting
the article 1 requirements of bicameralism and presentment
Time Framing (NARROW): Congress cannot agree to violate the constitution without
amending it.
Judicial Role: should be actively policing the separation of powers, an interventionist
umpire.
Conclusion:
Conclusion. Since Chadha was decided in 2005, congress enacted over 200 statues that
would have failed if challenged under Chadha. Although this phenomenon may just
indicate a lack of potential plaintiffs who wish to bring cases like Chadha to court, it could
also imply congress disregard for the courts interpretation of the constitution, and that
the court is cannot enforce its decision horizontally. The latter explanation indicates that
CON LAW ISSUES OUTLINE 23

perhaps a narrow reading of Marbury provides a more accurate reflection of role of the
judiciary. In other words, although the judiciary is a competent source of constitutional
interpretation, it may not be the sole interpreter for all intents and purposes.
e. Qualified Executive Immunity - Criminal
1. quick summary:
Executive Privilege after Nixon: QUALIFIED IMMUNITY court applies a balancing test
(confidentiality and needs of the criminal case, INHERENT EXECUTIVE POWER [in contrast
to Youngstown-Black], The court is the ultimate arbiter of executive privilege
[Marbury].
2. Triggers
Conversations between executive and advisors.
Military, diplomatic, or sensitive national security secrets; powerful claim of executive
privilege (US v. Nixon)
Criminal discovery or proceeding against the president
President has information needed.
3. Framework
(1)Role of The Courts to Interpret. Its the courts role to determine the scope of
executive privilege. The court balances the presidents generalized interest in keeping
communications confidential against the necessities of justice in a criminal proceeding.
(2)Purpose. Confidential Communication.
(3)Functional Approach. Inherent but Qualified Executive Privilege. There is a
qualified executive privilege in the context of a criminal investigation, part of the
presidents inherent powers. Its presumptive (Functional Jackson Approach from
Youngstown)
(4)Military Hint.
Critiques.
(1) There existed adequate political safeguards for handling this issue, making the
courts intervention aggressive and unnecessary.
(2) Case should have been dismissed as a non-justiciable political question.
o Under Baker v. Carr go through elements
Textual Strand: Does the constitution assign the issue to the un-reviewable
discretion of a different branch? Determined by the interpretive power of the
court. Here, the legislature believes there is a violation; the court is involved and
the executive is taking a position.
Justiciable Discoverable & Manageable Standard in the Constitution:
lack of justiciable standards for resolving the issue i.e. standards for which the
court, as a court, can decide the question. In other words, there are no justiciable
and discoverable standards in the Constitution. Large policy questions should
be for the legislature. fails baker test
Prudential Strand: Does this produce enforcement issues? Too controversial?
Government speaking with more than one voice on a sensitive issue? Are there other
political safeguards sufficient to deal with the issue?
3. Language
Background.

The executive privilege refers to the presidents ability to keep secret conversations from
advisors. Presidents have claimed this privilege in the past as an inherent executive
power, and the Supreme Court has previously confirmed this privilege. However, this
confirmation was qualified and thus has limits, and not an absolute immunity. (US v.
Nixon) If a president wishes to utilize this power, he or she must prove a need to protect
diplomatic, sensitive, or military-related national security secrets. Further, the president is
not immune from the judicial processes, nor is he above the law. Further, there is a strong
push towards performing criminal procedure in the most complete way possible, requiring
all possible evidence. In balancing these interests, the court held in US v. Nixon that the
presidents qualified privilege does not keep him from needing to submit evidence for
criminal trials.
Rule.
When it comes to criminal prosecutions, the executive has a presumptive qualified
executive privilege. In determining the scope of this privilege, the court balances the
general need for the executive to communicate confidentially with its agents, staff and
various counter-parties, and the evidentiary importance of the communication in question
to the criminal proceeding. If a court issues a subpoena in the course of a criminal
proceeding, the President must comply if the information sought is not privileged.
United States:
Separation of Powers: absolute privilege would interfere with the ability of the
judiciary to perform its constitutional function. Separation of Powers was never
intended to be airtight. The needs of judicial process may outweigh the presumption of
presidential privilege.
Balance. We employ a balancing test. We weigh the importance of the general
privilege of confidentiality of presidential communications in performance of his
responsibilities, against the inroads of such a privilege on the fair administration of
criminal justice.
Narrow. Scope of executive inherent powers concerning privileges and immunity. Does
not apply to criminal prosecution.
President:

Confidentiality. My Article II powers provide me with executive privilege, which can

be inferred from the text. Presidential communications with advisors have to be kept
confidential because the president must receive candid advice to carry out his Article II
duties with vigor. I need un-edited advice.
Separation of Powers. Judiciary v. Executive. The Article III criminal court cant
reach into the article II powers and force the president to comply with a subpoena.
Each branch is its own constitutional interpreter (narrow Marbury)
Distraction v Distortion
Military Purpose. This might be accorded immunity.
The Court Shouldnt Balance Policy. This is for the legislature.
Analogize Enumerated Power. Executive has the power to deal with (issue
immigration) as an enumerated power. President has this discretionary authority pursuant
to Article II powers.
Conclusion: It is an open question whether a sitting president can be criminally
prosecuted or whether the sole remedy is impeachment or removal.
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*Its the role of the court to decide the scope of the executive privilege, there is an
executive privilege part of the presidents inherent powers, its presumptive there is a
need of privacy, but its not absolute, its qualified, and balanced by the courts
f. Executive Immunity Criminal
1. Triggers
Firing someone for whistle blowing (Nixon v. Fitzgerald)
Pre-Office sexual activity (Clinton v. Jones)
In-between activity (president at a conference v. president jogging)
2. Framework
The standard of impeachment is a non-justiciable political question.
o Impeachment Treason, Bribery or other high crimes and misdemeanors.
o What are high crimes and misdemeanors? 2 views:
(1) Narrow: criminal acts, some sub-set of criminal law.
Adv: Creates a bright line rule the impeachment remedy is a
political remedy that requires a very high standard to avoid giving
the house and senate too much power
Dis: It would be difficult to remove the president for anything less
than a crime. Argue for lower standard.
(2) Broad: If President engages in any act that de-legitimizes him whether
criminal violation or not; i.e. political crimes, abuses of office, violation of public
trust impeachable offense essentially whatever the House of Representatives
considers it to be. Widely accepted view.
Adv: accepts what the impeachment process is purely a political
remedy for a political process (court not involved). Should be in
the prudential judgment of Congress they take the credit or
blame.
Dis: not sure what the standard means
Critiques of Courts Approach in Fitzgerald
Immunity created here is broad and sweeping; seems to diverge from other immunities
that have been created for other political players (that have to do with the actions of
htose people) qualified immunities. This immunity seems to go with the office
of President not with what he is actually doing. If take this to its logical extreme;
very dangerous proposition because the president could force others to engage in illegal
behavior.
3. Language
Background.
The court wants to avoid frequent lawsuits against the president in order so he or she
may perform presidential duties without distraction. Because of this, sitting and former
Presidents hold a broad Absolute Immunity from Civil Liability for Official Acts while in
office.
Rule. A President or former president cannot be brought to court for money damages
over an action constituting official conduct. He or she holds an absolute permanent
immunity against civil damages for his official actions. (Nixon v. Fitzgerald). However, the
president does not hold absolute immunity to suits for money damages for unoficial

actions performed before he or she assumed the presidency. The court has left open the
question of what in-office acts are official.
Critique.
Because President is not above the law, he or she should to answer to civil suits just like
every other citizen.
Plaintiff:
Distortion. Nixon was only about how the threat of suit might distort the presidents
decision making process while hes in office. Therefore, unofficial pre-presidential
business is not covered by the holding in Nixon.
Function / Not Office. Separation of Powers (Fitzgerald). We should not put the
president above the law. The scope of immunity should be determined by function, not
office. This immunity seems to go with the office of President not with what he is
doing.
Separation of Powers (Clinton): court is not engaging in Article II powers;
furthermore there is no significant burden here on the President to comply with the
civil litigation. If he brought the issue to court in Clinton v. Jones, litigating the civil
issue is not much different. Broad Marbury analysis court reviews.
In Clinton, the court is less worried about such suits interfering with his job because they
do not relate to his day to day duties and decision-making.
President:
Distraction. This suit will distract the president from carrying out presidential duties.
All suits against the president while in office (even if it was about something I did
before becoming president) will distract him or her from my job.
Separation of Powers (Fitzgerald): The President would be a litigation magnet.
Other Political Checks. impeachment; president wants to be re-elected; press and
media will be vigilant; president cares how history will regard him.
Separation of Powers Issue (in Clinton): Narrow Marbury reading: not the courts
place to tell the president to do something here?
4. Conclusion
Clinton v. Jones does not answer the question of whether misconduct that occurs during
Presidents time in office which is functionally unrelated to his Article II duties (injures
someone while riding bike) will get the Fitzgerald absolute immunity; though certainly a
rebuttable presumption that what a President does is limited to his Article II
powers.
***(Fitzgerald + Clinton) President cannot be sued for civil damages for
actions arising out of presidential conduct ABSOLUTE permanent immunity.
But NO absolute immunity for unofficial conduct (conduct before in office).
*BROAD immunity, ABSOLUTE not qualified, extends when the President is out
of office
*There is no immunity for civil actions based on the presidents conduct prior to
becoming president NO immunity from civil suits for unofficial acts (acts
before taking office)
*Court has not decided unofficial while in office
* High crimes and misdemeanors to impeach whatever the house considers to be a high
crime/misdemeanor.
CON LAW ISSUES OUTLINE 27

Injunction. The court allows individuals to sue government officers for injunctive relief to
make sure they abide by the constitution. One can sue a state official to enforce an action
in a state