Constitutional Structures

Fall 2008

I. Theories of Constitutional Interpretation

A. Originalism
Some Originalists include: Scalia, Thomas, and Judge Bork.
Some forms of Originalism are: original intent, original understanding, and
textualism (the extreme view)
Discussion of Borkian Originalism,

STRONG ORIGINALISM (Bork):

o Judges are confined to TEXT and ORIGINAL MEANING and
MUST UPHOLD LEGISLATION unless texts and/or original
meaning CLEARLY demonstrate that legislation is unconstitutional
o Judges should confine themselves to the text and if it is ambiguous then
you would go to the original intent of the framers or ratifiers if neither
clearly establishes that the practice is unconstitutional then the judge
should not interfere with the acts of the political branches.
o What is the likely outcome of such an approach? The open ended and
textured clauses will not be affected at all. Bork emphasizes the
countermajoritarian difficulty and says that courts should take a very
limited role.
o Bork feels an original intent approach to constitutional interpretation
would help solve the countermajoritarian problem and give legitimacy to
judicial review an originalist approach provides fixed neutral principled
answers, and determinate answers to Constitutional questions and does not
allow the judges to sit on their moral principles.
Critiques of Originalism
o It may have the effect of reading whole parts out of the Constitution
because they are too ambiguous.
o Others say that you shouldnt just assign intent to the framers because the
Constitution is derived by the people and you cant assess their intent.
The Federalist Papers were made after the votes for the Constitution and
were propaganda; also, the Constitutional Convention was in secret.
Borks answer to this Judges should look at the words and what
they meant at the time of the ratification but, a problem with this
is that it assumes that everyone gave the same meaning to
everything at that time.
Scalias Answerlook at contemporaneous practices of the time to
figure out the meaning of what people gave to the issues of the
time Lofreddo gave the example of Scalias view that an inmate
being beaten was ok to a certain extent because at the time of the
Constitution, inmates were allowed to be beaten; but one problem
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with this is that Constitutional norms may be aimed at changing

practices.
o Another critique is that we dont know what level of intent to look at ex.
EP Clause the intent was to stop irrational discrimination so if that is
the intent, it doesnt put a big restriction on a judges interpretation if they
are assigning it to gender discrimination.
B. Representation Reinforcement (aka Democratic Process Theory)
Some that espouse this theory are: John Ely, Justice Stone in Carolene, and Justice
Breyer
Two cases where this was seen were: Carolene Products and McCulloch v. Maryland
This theory attempts to mitigate the countermajoritarian problem by giving
Democracy the forefront they would overturn acts if they felt they went against the
underlying political process.
In the 20th Century, Carolene Theory is responsible for many decisions they say
their theory accounts for most of what the Court has done.
Critiques of this theory
o These people claim to have fixed neutral principle and the cabining
principle of Democracy and that they will get involved only if the
underlying Democratic process is in question but what is democracy and
how can that be a determinative means to constitutional interpretation?
o It wrongly assumes that politics generally operate from firm democratic
principles. The exception swallows the rule.
C. Non-Originalism (Natural Law Approaches)
Judges might have to look outside the Const. text and resort to substantive values
that dont appear in the Const in order to give operational meaning to the Const.
Some who follow this theory are: Ronald Dworkin, Justice Chase in Calder v. Bull,
and Charles Fried (Reagans Solicitor General). Justice Thomas has flirter with ideas
of non-originalism.
They look at text and history but acknowledge that it is the unusual case that will be
solved by the text look outside the constitution and look at normative value
systems to give meaning to the constitution.
It can be used to give both conservative and non conservative meanings to the
constitution
Critiques
o Unregulated
o Allows Judges to enforce their values
o Judges are unbound in how they can pour meaning into the Constitution
o Countermajoritarian is taken to the utmost.
Excerpt from Justice Brennans article: Current Justices read the Const. in the only
way that we can: as 20th century Americans. We look to the history of the time of framing

and to the intervening history of interpretation. But the ultimate questions must be: what
do the words of the text mean in our time?
For the genius of the Const. rests not in any static meaning it might have had in a world
that is dead and gone, but in the adaptability of its great principles to cope with current
problems and current needs.
Loffredo: Brennan is saying: dont look at specific original intent, but maybe look at
original intent with respect to grand/broad principles. Resonates with Marshalls
discussion in McCulloch.
McCulloch v. Maryland (1819)
First Question - Does Congress have the power/authority to establish a National
bank? Yes, Congress has Const. authority to establish a national bank.
Second Question -If it does, can the state of MD constitutionally impose a direct tax
on the national bank? No.
Chief Justice Marshall We must never forget that it is a Constitution we are
expounding. What do his statements say about the Constitution and how judges
should interpret it?
o Necessary and Proper Clause Maryland argues that the clause meant
indispensable, it limited the means Congress could use. Marshall looks at
the word necessary the ordinary meaning of the term in the
constitution. He argues that there are no limitations placed in this clause as
to the means. Marshall looks at the ways in which necessary is used
throughout the Constitution. He looks to imports Article I. 10: absolutely
necessary. Marshall notes that Art I. 8 grants powers, Art I, 9
prohibitions on congress. Necessary is placed amongst the enumerated
powers. If Congress only had powers that were enumerated then there
would not need to be limitations within the Const. Thus, implied powers
were recognized by the framers.
o The Articles of Confederation limited powers to those expressly states in
the confederation made the gov ineffectual. So, in the constitution the
framers omitted the word expressly in the 10th Amendment, which
means Congress power are not limited to those expressed in the Const.
o The Constitution is meant to avoid the prolixity of a legal code; meant to
be enduring The legitimacy of the Constitution comes from the consent
of the people. Const is an expression of the peoples will. In order for
sovereignty to work, must be consented to by the people. He makes his
iconic statement: We must never forget, that it is a Constitution we are
expounding. [As opposed to statute law that can be changed at any time]
o The Constitution is meant to be enduring and last for the ages and should
not be subject to frequent changes where does he derive this from?
Look at Article 5 it is extremely hard to amend it. It had to be kept short
and simple, therefore it had to be sketched in open terms that would later
by necessity be given meanings by other generations in part depending on
circumstances that wouldnt have been foreseen by the original ratifiers
(evolutions in society) the meaning of the constitution was not fixed at
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the founding. Seems to be a living constitution argument. Judges would

play a role in giving the Const meaning during changed circumstances.
o This argument reflects the ideas of Justices Thurgood Marshall and
Brennan
What about the role of the Original Intent Argument in this case? Hamilton was a
proponent of the bank, but that is not the only person who had views about it.
o Hamilton and Madison on different sides Hamilton believed gov had the
authority, Madison did not. The intention of the framers were divided
regarding original intent.
o Intent: The constitution was meant to create a powerful national
government to choose the means to put into effect the powers given to it
by the constitution
o Constitution intentionally drafted by broad open terms that would later
give it meaning in successive generations it will fall to the judiciary and
congress to give meaning that go completely outside the text.
Second Question Can a State tax the National Government? No.
o He says the power to tax a federal authority was not a power of the states
pre-Constitution so it could not be one that the states reserved through the
10th Amendment (state sovereignty). This is very similar to Stevens
dissent in Term Limits.
o What Clause does he rely on in saying states cant tax the national bank?
See last paragraph on pg. 68 69: If Congress has the authority to
establish a national bank and maintain it (as was just decided); then a state
power to destroy it would be inconsistent with the mandate to maintain it.
Establishing the bank is equivalent to a federal mandate, state power to
destroy the bank would be inconsistent with the federal mandate that the
bank be maintained. When federal and state laws are at odds, federal law
prevails the supremacy clause. A valid exercise of federal power prevails
over any inconsistent state power because it violates the Supremacy
Clause. Since state power to tax the bank is tantamount to the power to
destroy it, then it is unconstitutional.
o Theoretically, this can be seen as a weak argument, because he is equating
the power to tax with the power to destroy. In subsequent cases, the Court
has said that it is a weak argument to say that a power is unconstitutional
just because an abuse of that power would be.
o Representation reinforcement theory of interpretation Maryland says
that they should be trusted b/c they havent used the tax power abusively
and therefore the Court should have faith in the state and the process, but
Marshall doesnt buy that argument; why not? So Marshall is shaping a
view where decisions are grounded in the fairness and legitimacy of the
democratic process. The political process is the essential protection against
tyranny/gov oppression, but that theory does not apply to Marylands
theory. The people of Maryland are taxing the nation the whole people
and the nation cannot vote Maryland representatives out. The parties are
disadvantaged by a legislature where they have no vote, they have no
means of holding those representatives accountable the courts do no
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owe deference to the outcomes of political processes where the legislature

has harmed some party where the party does not have political access,
representation they are political outsiders.
o This case shows the Democratic Process Theory
o This case shows up in Footnote 4 of Carolene, when talking about discrete
and insular minorities; what do the 2 have to do with each other? Its the
idea that courts will generally defer to the political processes (rational
review), but Carolene gives circumstances where they will use more
invasive scrutiny if they think the underlying political process giving rise
to the legislation under review was undemocratic or unfair in some way
and the Carolene Court gives credit to McCulloch for coming up with this
idea. If the political process was unfair in some way the party, here, the
people of the US.

II. Federal Judicial Power

Article III Section 1. Supreme Court and Inferior Courts
The judicial power of the United States, shall be vested in one Supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish. The
judges, both of the Supreme and inferior courts, shall hold their offices during good
behavior, and shall, at stated times, receive for their services, a compensation, which
shall not be diminished during their continuance in office.
Article III Section 2, Clause 1. Subjects of Jurisdiction
The Judicial power shall extend to all cases, in law and equity, arising under this
constitution, the laws of the United States, and treaties made, or which shall be made,
under their authority; - to all cases of admirality and maritime jurisdiction; - to
controversies to which the United States shall be a party; - to controversies between two
or more states; - between a state and citizens of another state; - between citizens of
different states, - between citizens of the same state claiming lands under grants of
different states, and between a state, or the citizen thereof, and foreign states, citizens or
subjects.
Article III Section 2, Clause 2. Jurisdiction of the Supreme Court
In all cases affecting ambassadors, other public ministers and consuls, and those in
which a state shall be a party, the Supreme Court shall have jurisdiction. In all the other
cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to
law and fact, with such exceptions, and under such regulations as Congress shall make.
A. Authority for Judicial Review
Marbury v. Madison (1803) Establishes General Power of Judicial Review
FactsJefferson, before he leaves office, appoints Marbury as Justice of the Peace
and incoming president Adams then stops the appointments of commissions that had
not been seated yet. Marburys appointment had not been delivered to him postsigning. Marbury then filed for a Writ of Mandamus (We Command it is an
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order against a public official that orders him to perform a non-discretionary

government function)
Marbury brings an original, not an appellate claim under the Judiciary Act.
Marshall had two unattractive alternatives
o cave in and say that they could do nothing in such an important time in the
understanding of the court and the new government;
o Approve the commission and issue the writ; but what was the downside?
Madison pretty much thumbed his nose at the court and it was pretty clear
that if the writ was ordered, he would still not have done anything and thus
the legitimacy of the court would have seriously been undermined.
First Issuedoes Marbury have a right to the commission?
o Yes, signing and sealing vests the right and you dont need delivery, so the
action was illegal.
Second IssueDoes the law afford a remedy; can high level officials be
commanded by the Court to perform a duty?
o Yes, the Judiciary has authority over executive acts over individuals. In
essence, for every right that our system recognizes, there ought to be a
remedy, especially when that violation occurs at the hands of the
government. Marbury gave rise to the idea that we are a government of
laws and not men high level officials ARE NOT above the law.
Third Issueis the remedy that Marbury sought issuable by the Supreme Court?
First sub-issueWhether 13 of the Judiciary Act gave the Court authority to issue
the writ against the Secretary of State.
o Marshall says that it did. Article III sets the outer boundaries of Federal
Jurisdiction. Remember, the Federal Courts are those of limited
jurisdiction. But, you need a statutory branch of jurisdiction. Congress,
through statute, has set this up through the Judiciary Act.
When looking at 13 of the Act, there were ways of reading it so as not to confer
original jurisdiction on the Court for mandamus; however, Marshall avoids using the
doctrine of Constitutional Avoidance, which requires courts when interpreting a
statute, to interpret it in such a way if at all possible to avoid drawing into doubt the
constitutionality of the statute.
Marshall finally holds that Article III Sec. 2 of the Constitution bars Congress from
adding to its original jurisdiction, and therefore the Judiciary Act is Unconstitutional.
Why doesnt Marshall answer the jurisdiction question first? If he doesnt reach the
right and remedy issues, then he doesnt get to the part where he establishes that high
level executive officials can be checked by the Judiciary. This was a perfect situation
where Marshall could exert judicial authority over the executive.

How Does Marshall find the Basis of Judicial Review?

First Q was easy whether the Constitution trumped an act of Congress the
obvious answer was yes (Supremacy Clause)
Second Q if the answer to Q1 is yes, then can the Court, using its interpretation of
the Constitution, declare the act as repugnant to the constitution?

 Can an act repugnant to the constitution become the law of the land? he collapses
the 2 issues into 1
He is avoiding the question of who gets to decide whether an act is repugnant to the
constitution. He is minimizing the role that the courts would play in interpreting the
constitution. look at pgs. 35-36 for his examples the examples he gives require
almost no interpretation as they are very straight forward examples. They downplay
the role of judicial interpretation and law making it is deceptive b/c our
Constitution does not have simple clauses all like the examples he gives; i.e. the P&I
Clause
There are several bases for finding Judicial Review, as stated by Marshall:
o He cites the oath taken by judges to support the constitution against all
threats but, it should be remembered that pursuant to article 6, Congress
takes the same oath so all branches have a duty to the constitution and
this cuts against his argument.
o Article 3 gives the Court power to hear cases arising under the
Constitution this requires the inference that an act of Congress would
arise under the Constitution. Is there a counterargument to this?
However, there are other ways that cases can arise under the constitution.
o The written constitution wrote limits on the government and it would be
meaningless to have written limitations without a way to enforce it and
judicial review is the way to do that. A counterargument is that other
countries have written constitutions w/o judicial review, i.e. France you
could also have popular enforcement of the constitutionality of laws but
that poses a problem to minorities if the majority is happy with the way
things are, etc.
o Article 6 Supremacy Clause Constitution and laws in pursuance of are
Supreme laws of the land and laws against it are not and subordinate to
the constitution and void. This however doesnt get to who decides
whether they are in pursuance of the constitution.
Synthesis of Supreme Courts Power of Judicial Review
The Supreme Court has Appellate Jurisdiction to hear Federal Question decisions
that were reached in State Court
The Supreme Court does not have the Power to hear a pure state question heard in a
state court
A state court has the power to declare a Federal Act unconstitutional and the
Supreme Court has appellate jurisdiction over that decision
Martin v. Hunters Lessee (1816) Supreme Courts Power to Review a State Courts
Federal Question Decision
FactsThis was a dispute over ownership of land in Virginia, and the Supreme
Court rules in favor of Martin and remands the case back to state court, but that court
refused to abide by the Supreme Courts decision, because it found 25 of the
Judiciary Act to be unconstitutional and therefore the Supreme Court did not have
jurisdiction to hear the case. This was a judgment in a state court involving Federal

law. The state court held that the state courts were equal legal and sovereign status
as the US Supreme Court, even on questions of Federal law; so giving the supreme
court appellate jurisdiction over the states highest court would be a breach of state
sovereignty.
A state does have the power to declare a Federal Statute unconstitutional; even after
the holding in Term Limits, this right is still protected it has been this way since
Marbury, and also, the Supreme Court has oversight power of these state court
decisions.
Virginia makes the argument that the Constitution is a compact between the states
and refuses to recognize this hierarchy of sovereigns.
RuleThe Supreme Court has appellate jurisdiction over state court decisions on
questions of Federal Law (constitutional or statutory). Article III empowers the
Supreme Court to adjudicate all cases arising under Federal law, irrespective of
whether the case originated in a state court or a Federal Court.
To support the rule, Justice Story starts with an Article III argument except for a
few instances of Original Jurisdiction, the Supreme Court is given Clause I Appellate
Jurisdiction never many instances, including Federal Law THE ESSENCE OF
JURISDICTION IS OVER THE CASES, NOT THE COURTS.
He makes an intent argument concerning Article 6 Sec. 2 the framers contemplated
state courts would hear federal claims b/c this clause says the Constitution binds
state judges also, so the framers contemplated that the lower state courts can hear
federal question cases and it therefore follows that the SC, by a reading of Article III,
can exercise appellate jurisdiction.
He also makes a structural argument, concerning the people they are the
sovereignty and not the states it refutes Virginias argument that the states have
retained sovereignty.
One of the assumption underlying Storys concerns about uniformity is in the
interpretation of the Constitution one Q may evoke more than 1 answer so the
identity of the judges will matter in the determination of the issues they resolve
REMEMBER in Marbury, Marshall says its not really about the court because the
text has the answer i.e. he gives simple examples, but in this case Story recognizes
that it is about the members of the Court.

Michigan v. Long (1983)

FactsMan drives into a ditch, police search the car and find pounds of marijuana.
Long filed a motion to suppress the marijuana taken from his vehicle. This was a
Terry Search case and the state court, in making its decision, referred twice to the
state constitution, but otherwise relied primarily on Federal Law when reaching the
decision.
General RuleThe Supreme Court does not have appellate power to hear state
court decisions that rest on an adequate state law ground that is independent of
federal law. This is a structural rule; because Congress has never given the Supreme
Court power to do so.
What is Adequate

o Loffredo: A state ruling that fully supports the outcome/remedy would

the Supreme Cts hearing of the case change the ruling in any way. If the
Sup Ct ruling has NO IMPACT on the relief, then you have adequate state
grounds. If the Sup Ct ruling would change the relief, would change the
outcome then it is not adequate.
o In class, Loffredo said that if the decision rests on federal and state
grounds and if you erase everything about the federal law and you would
still get the same decision on state law, then that is an adequate state
ground. This follows because in a case like that, the Supreme Courts
holding is merely an advisory opinion and would have no bearing.
o The Supreme Court will deem state procedural grounds to be adequate
state grounds unless they violate Due Process or some other Constitutional
Protection; but if it doesnt violate Due Process then it would be an
adequate state ground.
o A state procedural rule is not an adequate state ground if it is being used as
a subtext or a centrifuge.
o The Supreme Court has said that they can hear a state case decided on a
federal ground even if it is clear that there was an available state ground
for decision on which the state court could properly have relied.
o Also, if the state court felt compelled by what it understood to be federal
constitutional considerations to construe its own law in the manner that it
did, then it will not treat a normally adequate state ground as independent,
and there will be no question as to the Supreme Courts jurisdiction.
What is Independent
o Loffredo: Independent or not interwoven with federal law. Not
independent if the state Ct felt compelled to rule on state law because of
federal law or federal Sup Ct decisions.
o The Supreme Court stated that where the non-federal ground is so
interwoven with the federal ground as not to be an independent matter, or
is not of sufficient breadth to sustain the judgment without any decision of
the other, the Supreme Court will have jurisdiction
Rule From the CaseWhen a state court decision appears to rest primarily on
federal law, or to be interwoven with the federal law, and when the adequacy and
independence of any possible state law ground is not clear from the face of the
opinion, the Supreme Court will assume that the state court decided the way that it
did because it felt federal law required it to do so.
If a state court chooses merely to rely on federal precedents as it would on the
precedents of all other jurisdictions, then it need only make clear by a plain statement
in its judgment or opinion that the federal cases are being used only for purposes of
guidance and do no compel the result
Basically, any ambiguity in a state courts decision will result in a Supreme Court
review of the decision the Supreme Court will assume that it is based on federal
law The Supreme Court has set up a presumption based on federal review. Any
ambiguity in favor of federal jurisdiction a presumption in favor of federal
jurisdiction.

 Stevens, in dissent, says that if there is ambiguity in a state court decision and no
federal right has been denied, then the Supreme Court should just decline review
because there would be no point in granting review preserve scarce Supreme Court
resources. No allegation of a violation of federal rights and state law judgment is
ambiguous, Sup Ct should decline the case no federal interest. Why should national
gov be interested in that circumstance? For Stevens, this is a reversal of roles
because he is supporting more state independence.
Remember, the Federal Law is the floor under which states cannot go beneath.
The archetypal case of adequate and independent state grounds involves a decision
of a states highest court that interprets the states constitution or laws as providing
greater rights than the Federal constitution or laws.
o So long as there is no claim that the state law violates any federal law (this
would give rise to a federal question) the SC may not exercise appellate
jurisdiction to review the state court holding.
Hypothetical Concerning Adequate and Independent State Grounds:
1) Protesters who were arrested bring a claim in NY State Ct. under NY State Civil
Rights law and a Federal Claim under 1st and 14th As. So say the state ct. says they
win under both claims under state law they only get compensatory but under Fed
law they got compensatory and punitive.
a. s appeal to the US SC what can the ct. do with respect of the state law
claim? Cant review it. So s still get compensatory damages. With
respect to the Federal Law Claim can the Ct. hear it? Yes so if they rule
for the , they can reverse and the would get no damages on the federal
claims but they still get damages on the state claim. So at the end of the
day, the result can be only compensatory.
b. It can be seen that in this hypo, if you took away the federal claim, the
result would be different and the SC can do something that would change
the outcome, therefore the state law claim does not adequately support the
state courts judgment.
Hypo:
HYPO
Warrantless searches of peoples trash. Lets say police search trash and find evidence.
Oregon Supreme Court decides police cant conduct warrantless searches, violates
Oregon Const. The gov is ordered to suppress. Supreme Court cant grant a writ of
certiorari because the ruling is based on state law only.
New Facts:
Lets say federal law forbids warrantless searches, but Oregon Const allows it. Can
Oregon Court allow such police searches even though the Supreme Court says it violates
4th Amend. No Oregon Ct cannot allow it! Article VI Supremacy Clause. Judges
must enforce the federal const. takes precedence.

State Ct

Oregon Const
Remedy: $

4th Amend
Remedy:
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Outcome
$ & Supp

US Ct
Result

Cant rule on State

issue
Remedy $

Suppression
Reverse: No Supp
No Supp

Ex Parte McCardle
Facts:
After the Civil War, Congress imposed military government on many former Confederate
States by authority of the Civil War Reconstruction Acts. McCardle was publishing
articles in a Mississippi newspaper critical of the Reconstruction plan. He was held in
military custody on charges of publishing libelous and inflammatory articles.
McCardle filed a writ of habeas corpus claiming that Congress lacked authority under the
Constitution to establish a system of military government. He filed under an 1867 Act,
which authorized federal courts to grant habeas corpus to persons held in violation of
their constitutional rights and granted the Supreme Court the authority to hear appeals.
McCardle petitioned the Supreme Court for a writ of habeas corpus. After arguments
were heard however, Congress passed an act on March 27, 1868, repealing the portion of
the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the
Supreme Court of jurisdiction on any such appeals, past or present. Congress did so,
fearing that the case would be a vehicle for invalidating the reconstruction plan.
The court held that appellate jurisdiction of the Court is not derived from acts of
Congress, but from the Constitution, and is conferred with such exceptions and under
such regulations as Congress shall make. (Article III. 2) The court held that when
Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final
decisions in certain cases, it operates as a negation or exception of such jurisdiction in
other cases.
What is the narrow version of the holding?
o Congress has the power to withdraw appellate jurisdiction and the Court
must abide by it look at the Exceptions Clause in Article III. Thus, Ct
does not have jurisdiction to hear the case.
Does the case recognize an unlimited power by Congress to restrict Federal
Jurisdiction? This case wasnt one where congress completely restricted the Courts
jurisdiction McCardle had another avenue other than Habeas. The Ct says that they
will not look into the motives of Congress to restrict jurisdiction.
The Federal Courts have never decided a case based on anything like this. Some
arguments for it exceptions clause Congress can take away the Courts Appellate
Jurisdiction as well as it has the power to simply create the lower federal courts so
there are textual arguments for it. Arguments against it would be more of a structural
one.

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B. Juticiability Limitations
This is the determination of whether a federal court has jurisdiction based on the
appropriateness of the issue for judicial decision (i.e. political question doctrine) or
the condition of the parties (i.e. standing, ripeness, mootness)
ARGUMENTS FOR A CONGRESSIONAL POWER TO ELIMINATE
JURISDICTION OF FEDERAL COURTS:
1. Art III Exceptions Clause(with respect to the Supreme Court)
2. Art I and Art III power to establish inferior courts
ARGUMENTS AGAINST A CONGRESSIONAL POWER TO ELIMINATE
JURISDICTION OF FEDERAL COURTS:
1. Contrary to Marbury
2. Violation of separation of powers (if Congress intrudes on core function of a coequal branch)
3. Article III the judicial power shall extend to all cases arising under the
Constitution and laws of the U.S. ?
4. Congressional exercise of powers over federal jurisdiction subject to
constitutional limitations (same as other plenary powers/individual rights
arguments if access to courts denied?
B1. Standing
Federal Cts have the jurisdictional power ONLY when they are presented with a
concrete dispute with 2 or more adverse parties. A live case in controversy.
The Federal Courts can only hear cases where the court is presented with an actual
Article III case or controversy. So standing is a threshold question that asks whether
the party is entitled to have the court hear their case.
Two overarching themes to keep in mind:
o The Supreme Courts use of Separation of Powers and Federalism in these
cases what is the Cts perception of federalism and separation of power to
justify its decisions? How does the Ct use these themes to narrow
standing?
o Federalist 51: Madison says we separate the powers to safeguard
individuals from oppression of the govt. How does this concept play into
how the Ct limits standing.
o Pay attention to what extent the courts view on the countermajoritarian
difficulty comes into play when making standing decisions. In the past 25
years, when taking a stricter view on standing, the court has done so under
the banner of judicial restraint.
Many members of the Supreme Court have referred to standing as the most
amorphous doctrine in law it is very malleable and has also been criticized as a
way to further a political agenda.

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 Bickel quote (Handout 4): Cts job is to validate or invalidate the govts action.
Federal Cts, especially the Sup Ct should have the discretion to avoid complicated
constitutional questions for institutional reasons, to protect the Cts legitimacy.
Does the indeterminate standing doctrine limit or expand judicial power?
Standing is jurisdictional comes from Art III of the Const. Standing determines
whether the Ct can hear the case. Marbury is an outlier in the way the Ct did not
determine standing/jurisdiction first. Cts must state their authority.
Art III, 2, cl.1: does not say anything about standing, but Art III was understood as
barring advisory opinions.
From Flast v. Cohen (1968) (Handout 4): [The question of standing asks] whether
the party seeking relief has alleged such a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the presentations
of issues upon which the court so largely depends. Recognition of judicial power
can have profound consequences for individuals, including individuals not before the
Ct. The legal issue might have broad consequences affecting many. Those mostly
directly affected should be in charge of presenting the claims to the Ct individual
autonomy. Those whose actions are at stake should have control of presenting to the
Ct.
2 policies: individual autonomy, vigorous litigation.
During the Flast Era (1960s), the Court asked whether a particular person was a
proper party to maintain an action; standing did not, by its own force, raise
separation of powers problems related to improper judicial interference in areas
committed to other branches of government. Such problems arose, if at all, from the
substantive issues the individual sought to have adjudicated. Since Flast the Ct has
raised the threshold to establish standing, although the Ct has been a bit inconsistent.
They might relax standing requirements to get to the merits of the case (ex. Gratz).
Theoretical level: Ct has more and more justified its standing doctrine by referring to
separation of powers and federalism.
Currently, the Court has shifted from that standard to now overtly rely on Federalism
and Separation of Powers as justifications for restrictive standing doctrine.
Current Standing Doctrine
1) Article III Case or Controversy Requirements (Constitutionally mandated)
(Cannot be Overridden by Congress)
a. Actual or Threatened Injury
b. Causation (the injury is fairly traceable to the s actions)
c. Redressability (the Court can provide some effective relief)
2) Prudential Limitations (Judge-made, non-constitutional) (Can be Overridden
by Congress)
a. No generalized Grievances
b. No Assertion of Third Party Rights (with some exceptions)
c. Zone of Interests Test
Under standing, there used to be no separate inquiry, as long as the had a
substantive claim he could do so but in the 20th century, statutes that involved large

13

numbers of people came around such as welfare laws and 2) constitutional rights i.e.
voting rights. So, the question came up, who should be able to go to court to
challenge unauthorized governmental actions that affected such a wide population.
So who should be able to go to court in the 20th century to bring claims? One view is
that any one should be able to bring the claim originalist approach; 2) A number of
forward thinking and progressive justices tried to restrict and confine standing to
those claims that had to do with a common law interest such as property; they did
this to try to further New Deal Actions; beneficiaries of the programs would not have
standing under this restrictive view
As can be seen in the Data Processing Case and Flast, the court liberalized the
standing doctrine again and now, in the present day as can be seen in Allen v. Wright
and Lujan, the court has once again restricted the doctrine.
60s and 70s applies the 6 part test to liberalize the standing doctrine (beneficiaries
who benefit from the statute could claim an injury)
80s Ct more conservative, switches back to common law analogs

A. Actual or Threatened Injury (Injury in Fact)

For Article III purposes, the following harms can count as injuries:
o Violations of individual constitutional rights
o Common law interests: life/liberty/property includes contracts:
economic
o Economic injuries
o Anything that was a common law interest i.e. a K
o Cant merely be an ideological problem and someone that someone is
angry at
o Aesthetic/environmental
o Statutory rights and interests
Congress can create statutes where the invasion of the statute would give rise to
injury for the purpose of standing.
You can have an Article III injury for being deprived of something, without having a
legal right. Injury does not mean you have a legal right. (ex. You have a beautiful
view out your window and a developer is going to ruin your view. You might
experience an injury under Art III standing, even if you dont have a legal right to
that view). The question of injury is way broader than legal right they are 2
different things. However if you have a legal right, then you usually have an injury.
No complete list of what counts as an injury, which means the Ct has a lot of
discretion to decide what is an injury.
Comparison of Some Sup. Ct Standing Cases:
Ct Denies Art. III Injury
Warth v. Seldin (1974)

Ct Recognizes Art III Injury

U.S. v. Hays (1995)
14

(loss of opportunity to live

in non-segregated community)

(residency in state-drawn majorityminority voting district)

City of L.A. v. Lyons (1983)

(fear of repeat exposure to
potentially lethal chokehold)

Duke Power (1978)

(fear of unknown health consequences
of possible emissions from power plant)

Allen v. Wright (1984)

(stigma from open govt
support of local whitesonly schools)

Shaw v. Hunt (1996)

(expressive harm suffered by white
voters challenging creation of majority
African-American congl district)

Allen v. Wright (1984)

Factsparents of black children brought action to compel IRS to deny tax exempt
status to private schools which discriminated. The parents alleged that the practice
promoted segregated schools and made de-segregation more difficult. The parents
alleged a nationwide class, but limited to school districts where private schools
where discriminating based on race and receiving tax exemptions.
What injuries did the s claim?
o Federal subsidies for schools racially discriminating (subsidizing white
flight)
o Loss of opportunity to receive an education in an integrated or nonsegregated school
o Stigmatization suffered by all members of a racial group (this is the way
OConner framed it)
The stigmatization claim failed at Step 1 as not an Actual or Threatened Injury
OConner classified this as a general and abstract one, while Brennans dissent
classified it as a more specific and tailored to those families. He classified it as one
impeding the ability of those children to receive a non-segregated education.
The Loss of opportunity argument passed Step 1 but failed on Step 2 (see Causation)
OConnor: rule requirements cant be precise, the Ct must look at the requirements in
light of the principles of standing. Principles: 1)Separation of Powers, 2) federal
judicial authority should only be used in the last resorts, 3) standing is founded in
concern about the proper role of the Cts in a democratic society.
OConnor Pg. 94: These questions and any other relevant to standing inquiry must
be answered by reference to the Art. III notion that federal courts may exercise
power only in the last resort, and as a necessity, and only when adjudication is
consistent with a system of separated powers The [standing] requirement [is]
founded in concern about the proper and properly limited role of the courts in a
democratic society.
The Ct took a different position than Flast. The Ct held that Art III standing is built
on a single idea the idea of separation of powers. (pg. 94)

15

 OConnor describes the injury in one way and Brennan in a more focused way.
OConnors description is in broad terms, which allows her to say the litigants do not
have a cognizable injury - no actual harm or injury.
Can racial stigma be counted as a injury under Art III standing requirements? The Ct
says racial stigma can count. Ruling: claims fails at requirement 1.
2nd Claim: Loss of opportunity to receive an education in an integrated or nonsegregated school. Yes, to harm, but fails 2nd requirement, causation not traceable
to govt.
Stevens (dissenting): simple economic argument subsidies encourage the
discriminating behavior.
OConnor [pg. 96]: separation of powers doctrine and concerns for the basis on
deciding on the elements of standing to dismiss cases in the cts view that violates
the separation of powers (in this case, telling an agency that was created by congress,
to act a certain way). No standing here because the plaintiffs are trying to enlist the
Cts to tell a govt agency how to enforce its own rules a role for the Executive
Branch. Stevens responds using Marbury: Ct has authority to enforce that the
executive branch follow the law. Cts are to say what the law is.
Takeaway: Cases like Allen: Standing no longer about individual plaintiff, individual
stake, individual autonomy. We are looking at standing as the Cts mechanism to enforce
its view on separation of powers and federalism.
Lujan v. Defenders of Wildlife (1992)
Factsthe US Interior Dept reinterpreted the ESA to apply only to governmental
actions taken in the US or on the high seas and not in foreign nations. Two members
of the Defenders of the Wildlife had visited separate sites abroad and claimed
reinterpretation of the act. The members planned to return some time to observe
endangered animals in the sites they had visited but the interior Depts new
interpretation would probably increase the extinction rate of the species they planned
to study. They sought a declaratory judgment requiring the interior Dept to apply
the ESA to actions taken in foreign nations. NOTE there was a clause stating that
any citizen could bring a suit.
Plaintiffs brought suit requesting an injunction requiring the Secretary of the Interior
(Secretary) to reinstate an initial interpretation of the Endangered Species Act of
1973 (ESA). The initial interpretation applied the Act to actions taken in foreign
nations. Secretary reinterpreted the ESA to be applicable to actions only within the
United States or the high seas. The Plaintiffs, organizations dedicated to wildlife
conservation, filed an action against the Secretary seeking an injunction requiring the
Secretary to reinstate the initial interpretation of the ESA. The Secretary claimed that
the Plaintiffs lacked standing.
Plaintiffs claim their future work will be harmed because they wont be able to see
the animals they are studying.
Scalia rejected the s claim of injury because he said there was no cognizable or
imminent injury. Why?

16

o He said that these were people who had studied certain animals that were
threatened but their past history was not good enough evidence of current
interests.
o No actual injury because the plaintiffs dont even know when they will
visit these sites again all hypothetical.
o No concrete injury. Plaintiffs havent shown a genuine interest in
continuing to study these animals no plane tickets, no trips planned, etc.
Note: past cases have allowed plaintiffs history was good enough to establish a
connection and an injury. This concept can be manipulated.
Scalia also says that this case involves a generalized grievance, because of the
Citizen Suit part of the statute that authorized any person to commence a civil suit on
his own behalf he says that the proper role of the courts is to protect minority
interests and not majority interests therefore the ban in generalized grievances is an
Article III limitation which Congress cannot override by statute (this view was
rejected in FEC v. Akins)
In terms of redressability Scalia found that there would be no redressability
because the was the Interior. Only agency before the Sup Ct is the Dept. of Interior
and even if the Interior went back to the agencies funding these projects, the other
agencies might not comply. Outrageous argument the agencies wont follow Sup Ct
decision. This argument only received 4 votes. The other Arg: even if plaintiffs get
what they want from the Sup Ct. (requiring federal agencies to consult with the
interior), there is no guarantee that the projects will stop and the animals will be
protected.
Souter and Kennedy concurrence
o Extent to which Congress can create statutory interests, the invasion
of which creates an Article III injury
Congress has to identify the injury and relate to a class of persons
entitled to sue
Congress has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none
existed before
In exercising this power, however, Congress must at the very least
identify the injury it seeks to vindicate and relate the injury to a
class of persons entitled to bring suit.
Plaintiffs argued they had statutory standing
Congress authorized standing through the Endangered Species Act: Any person
may commence a civil suit on his own behalf to enjoin any person, including the
United States and any other governmental instrumentality or agency who is
alleged to be in violation of any provision of this chapter. Scalia/Ct held the statute
unconstitutional because it has to comply with Art III and the statute doesnt.
According to the statute any person even if they are aggrieved can bring a suit.
The Statutory interest has to be more specific, can't be a widely shared interest of
govts obedience to the law NO GENERALIZED GRIEVANCES. (No
generalized grievances falls under prudential limitations)
17

An Act like the EPA will allow the judiciary to direct the executive in how to
enforce the laws. Scalia quotes Marbury Cts have no authority where the
constitution gives discretion to the executive. The duty to role of the power to the
executive. The executive has the duty to take care that the Laws be faithfully
executed. Atr II, 3 (pg. 103). This Act would enable the Cts, with the permission
of Congress, to assume a position of authority over the governmental acts of
another and co-equal department.
Scalia: The executive should have discretion to not enforce laws enacted by
congress. Handout 4, pg. 33: power of the executive to repeal acts of congress.
Scalia is calling for a reassignment of legislative power to the executive
Doctrinally, Lujan: Kennedy: Congress has the power to define injuries and
articulate chains of causation that will give rise to a case or controversy where none
existed before. Congress must at the very least identify the injury it seeks to
vindicate and relate the injury to the class of persons entitled to bring suit. Pg.
104

Akins v. FEC
FactsGroup of voters file a petition with the FEC to make AIPAC a Political
Committee and disclose their numbers. They got into court by a statute which says
that any person can bring a complaint and any petition that is denied, they can go to
court and sue the commission. The gov. argued that there was no standing as the
lawsuit involved a generalized grievance and they cite Lujan.
Statute: 1)Any person who believes a violation of this Act has occurred may file
a complaint with the Commission. 2) Any party aggrieved by an order of the
Commission dismissing a complaint filed by such party may file [an action in
federal district court seeking review of that dismissal]
Govs strongest arg: generalized grievances. Breyers Response: Harms shared by
large amount of citizens can count for injury in fact for Art III purposes, as long as
the injuries are concrete and not abstract.
Ruleas long as the s injury is concrete as opposed to abstract it can count as an
injury in fact even if it is one that is widely shared. As long as the s injury is
concrete it can count as injury in fact, even if most or all citizens are suffering the
same injury.
What concrete harm did the s suffer?
o Lack of access to the information that they were given a right to by the
statute they were entitled to.
o The s said they needed the information in order to evaluate candidates
for office in order to be informed to vote.
Scalia dissents the group of people is too large and generalized. The majority
misunderstands the generalized argument. To count as an Art III injury it has to be
particularized in that if affects the individual in a way that is different from everyone
else. He distinguishes between harms that are particularized (the has to show that
the harm affected her differently than it does anyone else) and ones that are
undifferentiated (groups of people that have the same harm). A must show that
the s harm is particular to her. Such a generalized grievance should be raised
18

through the political process. Generalized grievances should be taken up through the
political process not the courts. Congress does not have the authority to entitle
individuals to take such claims to Ct. The Ct is to protect individual rights and not to
protect the public at large. And, Akins is impacted the same way everyone else is.
Why doesnt the fill out Scalias particularized grievance formula Because
AIPACs nondisclosure affects Akins the same way it does anyone else in the United
States and therefore it is felt by almost everyone in the US and should be left to the
political process (remember, Scalias position is that when a majority is affected,
then it is not the Judiciarys province to intervene; rather it should be left to the
political process).
Breyer says that the right to vote is shared by all citizens, so under Scalias theory, if
we were all disenfranchised, we would have no standing to sue. Scalia responds that
if an action like that happened, we would all be affected individually and particularly
in our right to vote.
After Akins, the fact that something is widely shared doesnt mean it cant
satisfy Article 3 IT MUST BE CONCRETE AND NOT ABSTRACT.
o Ex. of Concreteness Congress passes a statute that says all public
officials must be honest and anyone who feels that their representative is
not honest has standing to sue is this concrete? If youre the gov. look at
Lujan that was abstract; if then look at Akins the right to get info
was concrete.
o Ex. Any citizen has a right to constitutional government and anyones
right that is violated by an official can sue too abstract
After Akins the ban on generalized grievances is a Prudential requirement and
NOT AN ARTICLE III ONE. Remember, Lujan suggested that it was a
constitutional limitation but Akins changes this.

Earth Island Inst. - Scalia, J. for the Court:

[Facts of case - Forest service has a regulation that says it is not required to have
public notice or comment regarding their policies. Ct: s had no standing to challenge the
forest services no comment regulation because the non-comment challenge is not a
concrete interest]
Respondents argue that they have standing to bring their challenge because they have
suffered procedural injury, namely that they have been denied the ability to file comments
on some Forest Service actions and will continue to be so denied. But deprivation of a
procedural right without some concrete interest that is affected by the deprivationa
procedural right in vacuois insufficient to create Article III standing. Only a person
who has been accorded a procedural right to protect his concrete interests can assert that
right without meeting all the normal standards for redressability and immediacy. Id., at
572, n. 7, 112 S.Ct. 2130 (emphasis added). *497 Respondents alleged such injury in
their challenge to the Burnt Ridge Project, claiming that but for the allegedly unlawful
abridged procedures they would have been able to oppose the project that threatened to
impinge on their concrete plans to observe nature in that specific area. But Burnt Ridge is
now off the table.

19

It makes no difference that the procedural right has been accorded by Congress. That
can loosen the strictures of the redressability prong of our standing inquiryso that
standing existed with regard to the Burnt Ridge Project, for example, despite the
possibility that Earth Island's allegedly guaranteed right to comment would not be
successful in persuading the Forest Service to avoid impairment of Earth Island's
concrete interests. See Ibid. Unlike redressability, however, the requirement of injury in
fact is a hard floor of Article III jurisdiction that cannot be removed by statute.
[I]t would exceed [Article III's] limitations if, at the behest of Congress and in the
absence of any showing of concrete injury, we were to entertain citizen suits to
vindicate the public's nonconcrete interest in the proper administration of the
laws. ... [T]he party bringing suit must show that the action injures him in a
concrete and personal way. Id., at 580581[, 112 S.Ct. 2130]
Justice KENNEDY, concurring.
I join in full the opinion of the Court. As the opinion explains, deprivation of a procedural right
without some concrete interest that is affected by the deprivationa procedural right in vacuois
insufficient to create Article III standing. Ante, at 1151. The procedural injury must impair a
separate concrete interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992).
This case would present different considerations if Congress had sought to provide redress for a
concrete injury giv[ing] rise to a case or controversy where none existed before. Id., at 580, 112
S.Ct. 2130 (KENNEDY, J., concurring in part and concurring in judgment). Nothing in the statute at
issue here, however, indicates Congress intended to identify or confer some interest separate and
apart from a procedural right.
Loffredo: Narrow way of reading Kennedys comments: if congress had created a right to
comment, a right to participate, it would have been a stand alone issue that could have
granted standing, but congress did not mean to do that. Congress only meant to create
protections for forest lands. Statute silent on a class of persons that are entitled to sue,
thus not granted standing.
B. Causation
The must show that the injury she asserts is fairly traceable to the s action.
The Court has not defined the level of causation OConner says separation of
powers issues will play into this also.
This standard really changes from case to case the court has been strict in applying
this when there is a long chain of causation, under the Rehnquist Court when the gov.
was the and
The court has been criticized for classifying the harm (or characterizing it) in a way
so as to reach the desired standing result.

20

Allen v. Wright
The loss of opportunity argument failed at step 2; why?
o Causal link not sufficiently strong. OConner says that the injury was not
fairly traceable to the action that they are claiming in the lawsuit. She
says that the lack of exemptions wont necessarily mean that they will not
be segregated anymore.
Stevens Dissent the whole theory of tax subsidies is to subsidize
behaviors that you want to encourage.
OConner makes a Separation of Powers Argument under Article III, the President
has a duty to make sure that the laws are faithfully executed the IRS is an executive
agency so she is saying that it would be a separation of powers issue to have the
court decide whether or not it is doing its proper function.
o Stevens counters this argument by saying that Chief Justice Marshall in
Marbury said that if the executive is not doing what it should be then the
Court must hold it to the requirements of the law.
What Loffredo said about Separation of Powers:
o OConner brings in separation of powers it explains why the Court cant
conclude that the injury is traceable to the govs actions (causation) if
the court is troubled by a separation of powers issue, they will use the
elements much more restrictively they will not necessarily look to see if
the present case is similar to others, they will focus on separation issues
which will guide how restrictively they apply the elements. Article II Sec.
3 President has duty to make sure the laws are faithfully executed you
have an uphill battle if your complaint is about the executives enforcement
or non enforcement of a law which affects a third party.
Implications of this case:
o It marks a break with Flast and opens the door to the separation of power
doctrine in standing cases
o the court doesnt announce an ad hoc approach to standing but leaves itself
wide latitude in applying the standard and leaves itself broad discretion in
standing cases.
Concurrence Congress can create novel interests that dont look like common law
interests, which will give rise to article 3 injuries limitations on Congress - but
Congress must identify the injury
Multiple Links Example
Note issue of multiple links in the causal chain; especially where
some links in the chain involve actions of third parties not before the
court (e.g. Allen v. Wright; Linda R.S., Eastern Kentucky Welfare
Rights Organization; compare SCRAP); multiple links in the causal
chain between the challenged action and the injury are not necessarily
fatal, but the Court will scrutinize such chains to determine if the

21

causal links are strong enough; note that the courts characterization
of the injury may affect the length of the causal chain.
s conduct ---------(causes)------ 3rd party to Act ------(causes)---- injury
Examples:
Allen
IRS
Tax (subsidies) exempt to Disc. Private schools (white students) ---- white student
exit schools ---- loss of non-segregated edu.
Simon Ekward
IRS
(reduced the amount of free medical care it had to provide to indigent patients to receive
federal funds)
IRS Hospitals (reduce amount of free care) s = poor people, hosp: denial of
medical care
Linda R.S (pg. 111)
Non-enforcement of child support orders for non-marital children
Support orders ------- Absent father - Father not to pay ----- s = non marital child,
lack of child support

If you cut out the middle the injury would be denial of equal treatment btw
mothers and fathers in supporting their kids. (This is what it would be if you
cut out the middle).
One characterization: denial of equal treatment between marital and nonmarital children. Doesnt matter what the father does (eliminates intermediate
step in the causal chain and goes from statute to child.

Simon Ekward
IRS reduces amount
Free medical care for poor
Tax exempt ------------ hospitals reduce amt. of free med. care --- poor individuals
denied
medical care.
It is important to notice that the injury in these cases can be re-characterized
in a way that cuts out the middle link in the chain.
Re-characterize injury to take out the middle player: IRS action increases
risk the s wont be able to access medical care when needed. Increase risk:
is that an injury?

22

 Ultimately up to the court to define what the injury is. Critique of Ct is that they
characterize the injury in a specific way to come up with their conclusion. Ct can
manipulate the definition of injury.
Ex. Bakke: does not illustrate links in the change, but illustrates how courts recharacterize injury and causation.
Facts: UC Davis medical school. School reserves 16 of their 100 seats for
minority applicants. Bakkes application is denied along with many others
(who had higher test score). Bakke sued the application program.
If you want to deny standing how would you characterize injury: characterize
the harm as denial of admission to the medical school. Can Bakke satisfy the
causation prong? Must show his injury is fairly traceable to the defendants
conduct challenged in the lawsuit (the affirmative action program). Bakke
would have to show that one of the set-aside seats would have been given to
him but for the affirmative action program. He would have to show causation
and redressability: but his injury would not be cured because there are too
many applications in the pool with higher grades and scores. Ct actually
characterized the harm as: denial of opportunity to compete for all 100 seats in
the medical school. Causation is easy: affirmative action program causes the
injury. Redressability possible no program, all students can compete for all
100 seats.
C. Redressability
The Court asks; does our order address the harm?
The also has to show whether the injury is likely to be redressed or resolved at
least in part by a judicial decree. The has to show that there is some relief that the
court can grant that will in some way ameliorate the injury. If there is no relief that
will redress the injury then she doesnt have standing because she doesnt have a
stake in the outcome. No stake in outcome, no case or controversy. The court order
does not have to fully cure the injury, it is enough that the court can remove some
barrier.
Hypo: you apply to Medicaid and are denied. Usually have access to a hearing to
challenge decision. State says, tough budget no more hearing. You got to CT to
challenge states refusal to give you a hearing. If Ct rules in your favor, they rule that
you have to have access to a hearing, not that you get Medicaid. The Ct moves you
closer to your goal.
An award of relief to the plaintiff must be likely to redress (cure, mitigate,
compensate for) the injury alleged (which must be cognizable under Art. III) (Allen)
This does not require that the Court apply the only relief that the is seeking We
can see this in Akins on pg. 10 As long as the Court can remove some barrier in the
s path to bring it one step closer to relief. In Akins, if won, the FEC would have
then included AIPAC but that didnt necessarily mean that they would get the info
they wanted because FEC had discretion in that area. But, it is enough that a barrier
is cleared for the s.

23

 Causation and redressability are very similar They go hand in hand; but Linda RS
is an example of causation and no remedy the harm which had causation of lack of
child support but if she won the remedy the husband would be going to jail and she
still would not have gotten the child support.
Lujan: Scalia Footnote 7: With a procedural right you can sue without showing
redressability as you would in ordinary cases. You dont have to show that getting the
procedure would alleviate the ultimate harm or address the issue you are trying to
protect.
Example of where causation would not establish redressability: cases where damages
are not available. And if the harmful behavior has stopped before the lawsuit is
brought and/or the harm is irremediable (damages cannot be undone).
PRUDENTIAL LIMITATIONS
The significance of the fact that they are not compelled by article 3 is that congress
can override them.
Even if the established the three constitutional limitations, the Court can
decline to extend judicial power based on the prudential limitations, but its
mitigated by the fact that Congress can step in and override them by congressional
statute.
These requirements give the Court greater discretion. Ct has broad latitude to grant
standing.
D. Generalized Grievances
No "generalized grievances;" i.e., harms or injuries that are said to affect
many or all citizens in roughly equal measure and implicate no personal
interest beyond the generalized citizen's interest in constitutional operation of
the government (see Akins, Richardson; Schlesinger). Thus the general rule
in federal court is no "citizen standing" and no "taxpayer standing." Those
types of grievances should be addressed through the political process.
Remember, that just because its a widely shared grievance doesnt mean you dont
have standing the Concrete Factor. Ex. if Congress took away everyones right to
vote, it would affect us all but we would still have standing.
A generalized grievance comes around when the injury is more amorphous
Examples of Generalized Grievance Cases:
o Schlesinger v. Reservists
Factsinvolved a claim made by an association of present and
former members of the reserves, challenged that the reserve
membership of certain members of Congress violated the
Incompatibility Clause (US Const. Art I. 6. Cl 2) which state, No
person holding any office under the US shall be a member of either
House during his continuance in office.

24

Ct: lack of standing. The Court held that, the only interest is one
shared by all citizens. The claimed non-observance of that clause,
standing alone, would adversely affect only the generalized interest
of all citizens in Constitutional governance, and that is an abstract
injury.
o U.S. v. Richardson
Factstax payer challenge to the CIA Act of 1949, which
provides that CIA expenditures may not be made public.
According to the , the Act violated Article I 9, clause 7 of the
Constitution which provides that a regular statement of account of
the receipts and expenditures of all public money shall be
published from time to time.
Ct: lack of standing. The Court responded that the s claim was
only a GG that was common to all members of the public. While
we can hardly dispute that this respondent has a genuine interest in
the use of funds and that his interest may be prompted by his status
as a taxpayer, he has not alleged that as a taxpayer, he is in danger
of suffering any particular concrete injury as a result of the
operation of this statute.
Are Akins and Richardson Consistent? 1) Richardson has no
statute so he has to satisfy Article 3 and Prudential
Requirements; but Akins has a statute so he is excused from
satisfying the prudential requirements. Richardson does not have a
statute that excuses the prudential requirements. In Akins, the
statute provides standing.

Generalized Grievances:
1. No citizen standing in federal court
2. No taxpayer standing in federal court
Exceptions to Generalized Grievances:
1) Congress may create such standing by statute, subject to Article III limitations
(see Akins)
2) Flast v. Cohen taxpayers have standing to challenge governmental spending
legislation as violating the 1st Amendment prohibition against the establishment
of religion.
E. No Assertion of Third Party Rights
Generally, a is not allowed to assert 3rd party rights of those not before the Court
(rule against Jus Tertii [right of 3rd party]).
Understand the justification for this: idea that party whose rights most
directly at stake should have responsibility and control over litigation of those
rights (e.g. case discussed in class of Penn Station police challenging their
supervisors direction that they clear the station of homeless people).
Prudential Limitations of Standing
25

2. No assertion of 3rd party rights

Craig v. Boren- drinking age for men at 21, women at 18. It was challenged. Bar owner
was the plaintiff by the time it got to trial.
Q: Does bar owner have Art. III standing?
A:
1. Injury is loss of money-economic, loss of profits.
2. Causation: injury she alleges is fairly traceable to challenged conduct. Yes.
3. Redressability: court order in her favor will relieve the injury shes alleged at step one.
She has a claim for injunction: shed have to show that if the law was removed, men from
18-21 would come to bar to drink again.
Conclusion: yes, she has Art. III standing
Prudential limitations
1. not a generalized grievance, this is concrete
2. note: in some cases, injury and right are the same thing. Here the injury and right are 2
diff. things. Injury here is loss of $. This occurs by violation of 3rd partys equal
protection rights of 18-21 yr old men. Generally, ct doesnt permit standing under those
circumstances. BUT, Craig goes forward b/ there are exceptions to this rule in asserting
3rd party rights.
Exceptions to 3rd party rights prudential limitations rule:
1. congress may override by statute
2. enforcement of the challenged policy against the litigant would result indirectly in the
violation of 3rd parties rights.
Exceptions to 3rd Party Standing from Warth v. Seldon:
Exceptions to general bar on asserting 3rd party rights (Wrath v. Seldin)
a. Congress may override by statute
b. Enforcement of the challenged policy against the litigant would result indirectly
in the violation of third parties rights.
c. The challenged policy would preclude or otherwise adversely affect a relationship
existing between the litigant and the third parties whose rights are assertively
violated.
d. Prosecutions of the suit by the litigant is necessary to assure protection of the third
parties rights because the right-holders are disabled from litigating their own
rights.
Points b and c overlap.
HYPO: Police officers sue Amtrak saying the amtraks policy of removing homeless
people is unconstitutional because it violates the rights of homeless people. They will be
helping violate their rights if they follow the policies. Do the police have standing?
Answer: (b) might apply -

26

1) Congress may overrule by statute (override a statute)

2)Court may allow standing to litigate the rights of third parties when
enforcement of the challenged restriction against the litigant would
result indirectly in the violation of third parties rights. (e.g.
enforcement of the 3.2 beer sales restriction on the vendor in Craig
v. Boren might be said to result indirectly in the violation of the
equal protection rights of the 18-20 year old men who would be
kept from purchasing beer; enforcement of criminal statutes
prohibiting doctors from distributing contraceptives (Griswold) or
performing abortions (Doe) would result in violation of patients
constitutional privacy rights.)
3)Court may permit litigation of third party rights where the
challenged statute, regulation, etc. would "preclude or otherwise
adversely affect a relationship existing between the litigant and the
persons whose rights are violated." (e.g, possibly vendor-vendee
relationship in Craig, or doctor-patient relationship in Griswold).
4)Court may permit litigation of third party rights where "prosecution
of the suit is necessary to insure protection of the rights asserted"
because the third parties are in some way "disabled from asserting
their own rights in a proper case." Court is split on whether there
must be a "genuine obstacle" as opposed to a "practical
impossibility." "Genuine obstacle" is the prevailing rule.
Points 2 and 3 overlap.
Note: the overriding inquiry in assessing the applicability of exceptions 2, 3 or 4
is whether the plaintiff will vigorously advocate the rights of the third party.
From Class: Amtrak issued a policy saying that the homeless couldnt shelter
there in the Winter and directed the police to remove them at night. The
officers, through their Union sued Amtrak and claimed the policy was
unconstitutional. They said it violated forced removal of the homeless from a
public place. Their principal argument (injury alleged) was that if they were
forced to carry out the order, it might subject them, to legal liability. Do they
have standing?
5)They are asserting the rights of third parties it doesnt violate the
rights of the officers, but rather of the homeless.
6)Number 2 if the policy was enforced, they would have to violate
the rights of the right holder (the homeless)
7)Number 3 there is no relationship between the homeless and the
cops, so that exception would not be triggered.
8)Number 4 the homeless people may not have knowledge to bring a
suit for themselves
E. Zone of Interests Test

27

Plaintiff must assert an interest that is:

arguable with the zone of interests to be protected or regulated by the statute or
constitutional guarantee in question. [Data Processing]
Administrative Procedure Act (APA)
Sex. 70: A personadversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof.
Asks whether the s interests are arguably within the zone of interests protected or
regulated by the statutory or constitutional provision at issue.
Its not meant to be a very demanding requirement. SC has never applied it to a
constitutional case; they have used it once to deny standing to a statutory case.
Genesis of test is administrative law cases interpreting the judicial review
provisions of the Administrative Procedure Act. (See Data Processing).
Zone-of-interest concerns most typically arises in cases where the plaintiff
challenges an administrative agency action aimed at some third party (e.g.,
data processing company sues the Comptroller of Currency for allowing
banks to enter the data processing market.) Some question as to whether test
belongs in general standing analysis, and courts do not always include it.
City of Los Angeles v. Lyons (1983)
FactsPolice Officers stopped Lyons for his taillight being out, and although he
doesnt put up resistance, they apply a choke hold and damage his larynx. He
alleged that the police authorize these choke holds and that 16 people have been
killed (12 were black). He argues that he and others similarly situated are
threatened with irreparable injury and that he fears any further contact with the
police in the future. He asked for two kinds of relief damages and injunctive relief
barring the use of choke holds.
PH: the district court held that the actions violated Lyons 14th Amendment rights and
issued a preliminary injunction.
SN: theres an ISSUE OF MOOTNESS THAT IM SLIGHTLY CONFUSED
Ct: If a P is asking for injunctive or declaratory relief, it is not enough that he was
harmed in the past by a governmental practice. In order to have standing to seek an
injunction the has to show either continuing adverse affects or that there is a
likelihood that the will be harmed again by that policy.
RULE
o If the is seeking injunction or declaratory relief against gov policy that
harmed them in the past they have to show a real or immediate
threat/reasonable likelihood that theyll be harmed again or that the
policy has continuing adverse affects on them (this is the narrow very
unfriendly version of the rule)
o In order to have standing to seek an injunction the has to show either
continuing adverse affects or that there is a likelihood that the will
be harmed again by that policy.

28

o Lyons: Separate showings of standing required for injunctive relief

Majority: The reasonableness of Lyons fear is dependent upon the likelihood of a
recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated
injury that is relevant to the standing inquiry, not the plaintiffs subjective
apprehensions. Need a real and immediate threat of future injury.
Majority: it was speculative, at best, that Lyons himself would be placed in a
chokehold in the future, and therefore injunctive relief would not clearly redress any
potential injury.
Majority: Past exposure to illegal conduct does not, by itself, establish a present case
or controversy, and therefore cannot meet the Article III Constitutional requirement
of actual case or controversy.
Dissent (Marshall): - The s damages claim turns on whether the chokehold is
constitutional. That legal question is also the central legal issue as to whether the
court should issue the injunction. Lyons has a more concrete and acute interest in
pursuing the injunction than anybody. He also has this past trauma and an
understandable fear that it will happen again. But the majority discounts his fear as
an injury.
Dissent: By fragmenting the standing inquiry and imposing a separate standing
hurdle with respect to each form of relief sought, the decision today departs
significantly from this Cts traditional conception of the standing requirement and of
the remedial powers of the federal courts. We have never required more than that a
have standing to litigate a claim. Whether he will be entitled to obtain particular
forms of relief should he prevail has never been understood to be an issue of
standing. In determining whether a has standing, we have always focused on his
personal stake in the outcome of the controversy, not on the issues sought to be
litigated. (Handout 4 pg. 28) Standing = personal stake in the underlying dispute,
not in the particular types of relief sought.
The Dissent explained that Lyons request for injunctive relief was coupled with his
claim for damages based on past injury. Because he has an actual claim for damages,
he need not rely solely on the threat of future injury to establish his personal stake in
the outcome of the controversy.
Whats the practical significance of the fact that Lyons has more of a stake in
getting relief than anybody but he was still denied standing? In essence, the
issue of the chokehold is insulated from judicial review.
How likely does it have to be that he will be harmed again in order to have a claim?
Ct: would have to show that he would be likely to have another encounter with the
police BUT ALSO all police officers in LA always choke any citizen whom they
encounter or that the city authorized police to act in this way. [Handout 4, pg. 22]
That the police routinely apply chokeholds.
The main point of contention between maj. And dis. In terms of how standing should
be approached in these cases of multiple relief is The majority says that they will
require separate showings of standing for each relief and the who shows that it
is not likely he will be harmed again will not have standing for an injunction. The

29

dissent says no, that once they have established an article III controversy, they
will hear the case, regardless of the relief requested.
Another Case: s were maced. No standing for injunction unlikely to be maced again
Another case: Deaf arrived in emergency room and sued hospital for not having
translation policies in hospital. Sued. Ct: No standing - unlikely to be brought into
the emergency room again.
HYPO:
National Congress for Puerto Rican Rights v. NY
Alleged that SCU officers pursuant to NYPD policy subject residents of high
crime areas (particulary black and latino men)to be stopped and frisked on
profiles of race and national origin. Each alleged he had been stopped and
frisked by a police officer based on race/national origin and not reasonable
suspcion. They were injured, several were stopped more then once and they
have a fear of being stopped again. They sought damages and a perspective
injunction. The city moves to dismiss on standing grounds, using Lyons.
How does the lawyer distinguish Lyons unlike in Lyons, where fear is not
enough?
o In this case, they had a fear but also a reasonable belief that they
could not go out b/c of their knowledge of how they are viewed in
these neighborhoods. Here were also subjected to the policy a
number of times thus there is a likelihood of recurrence. In Lyons it
was an unlawful traffic stop, and the court wasnt going to assume
that the plaintiff was going to break the law and be subject to the
policy of chokeholds again. Here, in this case, the s are just
walking down the street when they are subjected. Also, the s are
very distinguishable in this case there were tens of thousands of
victims and in Lyons there were less. Also, racial profiling was an
issue here as compared to Lyons.
o Policy contained to specific areas/neighborhoods, Lyons more
general.
o Here, explicit argument of racial profiling arg: policy is targeted
and thus a great likelihood that s will be subject to the harm again.
In Lyons, racial profiling exists, but not addressed explicitly.
o In Lyons, Ct says the would have to break the law again to be
exposed to the policy. Here, s are walking down the street, not
violating the law and policy will apply to them.
B2. Ripeness
RULE: P has to show an actual case or controversy not simply a disagreement
that might or might not become a case of controversy dependent on future events
that might later the nature of the dispute.
30

Cases still pending after

Where plaintiff has not yet suffered a threatened or real injury; where the
claim is not yet fully developed, the claim is said to be not "ripe." Court is
asked to hear the case too soon.
Classic case raising a ripeness question is one in which a plaintiff challenges
a statutory or regulatory provision before it is actually enforced against that
plaintiff. E.g. the Longshoremens case.
The most common scenario is whether a can challenge a law or policy b4 it
has been applied to him pre-enforcement review/anticipatory challenge.
Courts should not enter a dispute at an early stage. Future events might cause
a controversy to not materialize at all.
HYPO:
Congress passes a statute and offers federal financial funding to ABA law schools
that agree to conduct random drug tests to their students. Lets say CUNY
students file a lawsuit. If CUNY has not applied for the funding no standing, no
injury yet. UNRIPE
Q: Why might s want to enter anticipatory challenge
Answer:
Longshoremen v. Boyd (1954)
Facts Longshoreman on the West coast every summer would go to Alaska to work
in the canning factories. Then US govt was going to treat them as returning
undocumented workers every time they came back and would have to re-enter as
new immigrants. They filed a suit for anticipatory challenge. They either have to
forgo the work or take the chance that when they try and come back home the govt
will try and keep them from returning home this is why they are bringing the case
before they even go and are personally affected.
The court holds that there is no case in controversy. You have to
have actually suffered the harm, you cannot anticipate a harm
(even if it will happen).
Majority (Frankfurter): The Longshoremens Union in effect asked the
District Court to rule that a statute would not be applied to them under
certain circumstances in the future, when no sanctions had been sought
against union members and there was no occasion for doing so. That is
not a lawsuit to enforce a right; it is an effort to obtain assurance from a
court that a statute will or will not apply under certain hypothetical
situations. Determination of the scope and constitutionality of a law
before a concrete case exists involves an inquiry that is too remote and
abstract for a court to resolve. The complaint does not present a case or
controversy and must therefore be dismissed. (Handout 4, pg. 35)
Dissent (Black): While it is true that this lawsuit was filed before the union

31

members went to Alaska for the canning season, the Immigration and
Naturalization Service has since enforced the Act precisely as plaintiffs feared.
Since the complaint was filed the union members have actually been subjected to
the immigration procedure as if they were entering the United States for the first
time. Some of them are about to be denied the right to return to their homes. The
threatened injury which the majority insists is too remote and hypothetical for
adjudication has already come about. This is precisely the sort of case or
controversy courts should decide. Judicial action is absolutely essential to save a
large group of wage earners from irreparable harm due to alleged lawless
enforcement of a federal statute. (Handout 4, pg. 36)
Longshoreman has never been overruled and it is cited. But the current rule is from
Abbott
Abbott Labs v. Gardner Modern Ripeness Rule
Factspre-enforcement challenge to FDA regulations that would have
required the plaintiff drug company to re-label its pharmaceutical products at
substantial expense to include the generic name of a drug in every place that
the company uses the brand name. The drug company sought a judicial
declaration of the regulations invalidity before the FDA actually enforced the
regulations.
Note, absent judicial intervention at this early, pre-enforcement stage, the
plaintiff would be put to the choice of incurring significant expense (in order
to abide by the regulations) or intentionally disobeying the regulations at the
risk of incurring civil or criminal penalties (in order to have an opportunity to
challenge the regs in court).
The Supreme Court was apparently moved by the drug companys dilemma
and held that the case was ripe.
RuleThe test that emerged from Abbott asks two questions:
1)Whether the claims are "fit for judicial review: "to the extent that a
claim raises "purely legal" questions (like facial challenges to a
regulation's or statutes validity) it is more likely to be found "fit for
judicial review;" conversely, if the resolution of the claim seems to
turn on factual circumstances that have not fully developed at the
time review is sought, the claim may be deemed unfit for judicial
review.
a. However, if the issues turns on specific facts that havent
occurred yet or if the court believes that waiting for a concrete
factual scenario would help then the case would be found as
unfit and dismissed as unripe.
2)Whether delaying adjudication will result in hardship to a party: the
typical instance of "hardship" is where denying pre-enforcement
review will put a party to the choice of risking significant sanctions
in order to challenge the allegedly illegal government restriction, or
suffering a deprivation by accepting the restriction. Abbott is an
32

example of this, as is the Longshoremens case and the various

cases in which doctors have sought pre-enforcement review of antiabortion statutes (but see Poe in textbook).
a. Hardship occurs if denying pre-enforcement review
would pout the plaintiff to the choice of suffering also to
comply with the challenge, or violate a disputed law in
order to create standing to challenge the law.
Reno v. CSS (1993)
Facts CSS challenging INS regulations that provided residency to undocumented
immigrants if they could establish, inter alia, that they had resided continuously in
the US in an unlawful status and had been physically present here continuously for
specified periods.
The manner in which the court characterizes the harm is crucial to whether there is
ripeness.
Court says that the s are asking for in essence, the actual green cards and since they
didnt apply and werent stopped from getting them, then they dont have standing to
complain about the policy. Maybe there would be some other reason as to why they
would be ineligible
The manner in which the court characterizes the harm is crucial to whether there is
ripeness.
RuleYou cannot have pre-enforcement review of benefit restricting laws.
o Here, this was a benefit restricting claim and the Court said that
the s claim would not be ripe until they took affirmative steps
that they could take before the INS blocked their path by applying
the regulation to them. (Handout 4, pg. 43)
o This is in contrast to Abbott Labs, where the s claim was ripe
before the effect, and this involved a behavior prescribing
regulation.
o Ripeness requires that the effects of the challenged regulations be
felt in a concrete way by the challenging parties.
Court: Class members failed to apply to INS, thus have not yet suffered a
concrete injury because the INS has not denied them legalization by virtue of
the challenged regulations. (pg. 48)
It has been suggested that the rule would be less stringent if there were a preenforcement challenger for an Equal Protection claim.
OConnor (Concurring): rationale behind our ripeness doctrine is to prevent
the courts, through premature adjudication, from entangling themselves in
abstract disagreements, when those disagreements are premised on
contingent future events that may not occur at all.
Dissent (Stevens): Ripeness existed at the moment the respondents
conformed their behavior to the invalid regulations those regulations
concretely and directly affected respondents, consigning them to the shadow
world from which the Reform Act was designed to deliver them, and

33

threatening to deprive them of the statutory entitlement that would otherwise

be theirs.
B3. Mootness
When the case is no longer a live "case or controversy" because of
subsequent events. Court is asked to hear the case too late.
The "case and controversy" requirements of Article III must be met at every
stage of the litigation, from trial through final disposition on appeal (see
Honig v. Doe).
Examples of events that could render a claim "moot:"
1)the legislature might change or repeal the challenged law;
2)the plaintiffs circumstances could change (e.g., the 18-20 year old
male plaintiffs in Craig v. Boren had all reached their 21st birthdays
by the time the case reached the Supreme Court; the claims were
therefore moot as to them).
Three exceptions of special situations
1. disputes that are "capable of repetition yet evading review:" two part
test: (a) dispute or challenged conduct must by its nature be too short in
duration to be fully litigated (hence "evading review"); and (b) there
must be reasonable expectation that dispute will recur (hence "capable of
repetition.") Normally the recurrence must involve the same party, but
the Court has recognized exceptions to this requirement (see Scalia
dissent in Honig). Classic examples: pregnant woman challenges
abortion law, but pregnancy resolved before the case is decided;
prospective voters or candidates challenge election procedures, but the
election occurs before the case can be litigated to conclusion. In the
voting and abortion contexts, the Court has not required a showing that
the dispute may again embroil the same plaintiff.
2. Class Actions these survive the mooting of the named s claim 2
requirements 1) the named claim has to be live at the time the case is
filed; 2) the class claims have to be live during the life of the lawsuit.
3. Where the defendant voluntarily ceases the conduct only if he can prove
that there is no reasonable likelihood of the challenged conduct
recurring.
Honig v. Doe
Facts determined the rights of students with disabilities with respect to school
disciplinary action. Honig v. Doe concern two students with disabilities in a San
Francisco school who were suspended indefinitely for violent and disruptive conduct
related to their disabilities. When their suspensions were extended to allow time for
expulsion proceedings to be held, as is permitted under California state law, an attorney
filed a joint suit in U.S. district court against the school district, challenging the indefinite
suspensions. The U.S. district court issued an injunction against the school district for the
suspension of students with disabilities when their misconduct is related to a disability.
The school district appealed, leading to a ruling by the U.S. Court of Appeals for the
34

Ninth Circuit that reached several conclusions about circumstances in which students
with disabilities may be suspended or expelled. At its core, the ruling affirmed the district
court's holding. The school district petitioned the Supreme Court to review the ruling.
Under Art III this Court may only adjudicate actual, ongoing controversies. That
the dispute between the parties was very much alive when suit was filed, or at the
time the Court of Appeals rendered its judgment, cannot substitute for the actual
case or controversy that an exercise of this courts jurisdiction requires. (Handout
4, pg. 59)
The present rule in federal cases is that an actual controversy must exist at all
stages of appellate review, not merely at the time the complaint is filed. (pg. 65)
B4. Political Question
Political Question Doctrine asksIs it appropriate for judicial determination or for
separation of powers reasons is it better to have one of the other branches have final
say of the issue.
This doctrine looks at the justiciability of the issue itself
This doctrine looks like one of the tools that Bickel talks about, because it allows the
court to step away from a case when it thinks its legitimacy is on the line.
This doctrine doesnt mean that the court wont adjudicate questions that have some
political content
Constitutional issues which, as a matter of separation of powers principles, are
committed by the Constitution to other branches of government or are inappropriate
for judicial decision.
The political question doctrine will come into play where there are separation of
power concerns.
The Court has tended to focus on 2 questions, both of which must be answered in the
affirmative to determine whether an issue presents a political question:
o Does the issue implicate the separation of powers?
o Does the constitution commit the resolution of the issue to either the
President or Congress?
Baker v. Carr
Six Situations Where the Court has found that a case presents a non-justiciable
Political Question:
1) textually demonstrable constitutional commitment of the issue to a
coordinate department;
2) lack of judicially discoverable and manageable standards;
3) impossibility of deciding case without a policy determination of a kind
clearly for non-judicial discretion;
4) impossibility of adjudication without expressing lack of respect for a
coordinate branch of government;
5) an unusual need for unquestioning adherence to a political decision already
made; or

35

6) the potentiality of embarrassment from multifarious pronouncements by

various branches on one question.
Areas that the Court has found to present Political Questions
Domestic Issues including disputes concerning the Article 5 Constitutional
Amendment Process
Disputes arising under the Article IV Guaranty Clause
Where the constitution clearly gives power to a political branch, i.e. Nixon
Congress has sole power to try impeachments. Ex. what if during Clintons
impeachment, Congress wanted Scalia to preside instead of the Chief Justice; would
that pose a political question? No. What if the president decided not to appoint
women judges? Political question? It could be, because in Marbury, Marshall
suggested that where there is an executive discretion, it is political
Another is concerning foreign affairs; pursuant to factor 5. This doesnt mean,
though that the court will never hear these kinds of cases.
where the case is related to checks on judicial power, i.e. Walter Nixon Case. Also
the Coleman case a challenge against the process of amending the constitution.
How does this fit within a check against the judiciary?
Cases that have been Found to pose a Political Question
US v. Nixon 1974 (Watergate tape case; intra-executive branch dispute)
Powell v. MCormack 1969 (Congress power to determine qualifications of its
members; intra-legislative branch dispute)
INS v. Chadha 1983 (legislative veto case in area touching on foreign relations)
Bandemer and Vieth 2004 (challenges to state political gerrymandering)
Dept of Commerce v. Montana (challenge to Congress appointment to states of seats
in the House of Representatives)
Cases that have been found to Pose a Political Question:
Gilligan v. Morgan
suit seeking judicial oversight of National Guard training after Guard shot and killed
unarmed student protesters at Kent State University
Challenge to states training of National Guard non-justiciable since the Constitution
places the authority to oversee such training in Congress.
U.S. v. Walter Nixon (1993)
said his impeachment should not stand b/c the whole Senate did not hear the facts
of the case and delegated to a committee the fact finding he challenged it and said
under the constitution he was entitled to a trial in front of the entire Senate. The
Court said it was a Political Question
Why this ruling? A structural separation of powers concern one of the only checks
on the judiciary is the impeachment proceeding, so the Court should not get involved
in overseeing this. The other argument was that the Senate had the sole power to try
impeachments, so the constitution specifically gave them this power Textually
36

Demonstrable Commitment. Also, using a Baker factor, the court said there was a
lack of judicially discoverable and manageable standards because the constitution
did not define try.
The first 2 Baker factors are often cited by the court in these cases, but the other 4
are not really used as much.
The Court is also unlikely to find a political question concerning a statute conferring
power to Congress and also where there is a determinable constitutional provision
based on individual rights.
HYPO: Military commissions act:
The act states: no jurisdiction for judges to hear or consider an application for habeas
concerning enemy combatants or undocumented immigrants in US custody.
Now, look at Const. Article 1 Sec. 9 Clause 2 privilege of a writ of habeas shall not be
suspended unless when in cases of rebellion or invasion the public safety may require it.
Article 1 Sec. 8 cl. 10 congress shall have the power to define and punish piracies and
felonies on the high seas and offenses against the law of nations.
What if you were defending an enemy combatant who has been detained and file
a habeas petition?
o Argue that currently there is no rebellion or invasion and therefore the
power isnt conferred to the political branches to suspend the writ and
therefore not a political Q.
What would the gov. argue?
o There is an invasion and the political branches are the ones to determine
exactly what that means i.e. 2nd factor.
B5. State Sovereign Immunity
Amendment 11. Suits against states Restriction of judicial power
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.
Article III, Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made,
under their Authority; to all Cases affecting Ambassadors, other public Ministers and
Consuls; to all Cases of admiralty and maritime Jurisdiction
Subject Matter Bases (Cases)
Federal questions
Affecting ambassadors, etc.

Party Config. Bases (Controversies)

US as a party
State v. State
37

Admiralty & Maritime

State Citizen diversity

Ordinary diversity
Land grant diversity
State foreign diversity
Citizen foreign diversity

Look at 11th A along with Article III what are the possible textual interpretations?
o Just looking at the 11th A 1 interpretation - cant have a suit in Fed court
by a citizen of 1 state against a different state, no matter what the subject
matter is
o Now bring Article III in and look at the 2 together You only need 1 from
the chart to be able to get into Federal Court (either a subj.matter or a
party config. Basis).
o If you look at both together, the 11th A seems to repealing parts of article 3
so 1 way of looking at what the amendment does is removing the
highlighted factors from the list.
o It eliminates state citizen diversity and state foreign diversity as
independent bases of federal jurisdiction but didnt do anything to federal
courts authority to hear federal question claims where a state is a
defendant; this is one view!
State citizen diversity and state foreign citizen diversity were blocked by the text of
the 11th Amendment. Nothing in its language banned federal question jurisdiction, as
Chief Justice Marshall also stated.
The Constitution says nothing about State Sovereign Immunity! Pre-11th A, the
constitution contemplated that states could get sued in Fed. Court. Also, is the power
of a monarch not to be sued consistent with our republican form of government?
Also goes against the idea that the people are the ultimate sovereigns. Who is the
sovereign in terms of national law? The People or the national government that the
people created.
SC says that b4 the constitution was ratified, most states recognized state sovereign
immunity. And the doctrines of sovereign immunity that existed in common law and
pre-constitution, survived the writing of the constitution.
IRONY the principle of sovereign immunity that the SC espouses is much broader
than anything the monarch ever enjoyed in England back then, you couldnt name
the king or queen as a Defendant- you either had to petition the crown to hear it,
or sue the kings officers. But there was not a case where citizens would be
completely shut out of courts. This is unlike the SCs rule where citizens who suffer
injury at the hands of the state have no remedy.
State citizen diversity and state foreign citizen diversity were blocked by the text of
the 11th Amendment. Nothing in its language banned federal question jurisdiction, as
Chief Justice Marshall also stated.
Doctrine also protects state s from certain suits even in their own state courts.
This operates in 3 different forums
o In federal court these doctrines immunize states form certain suits in
federal court, even if congress has authorized the suits. (Seminole)
38

o Also protects states s from certain congressional suits in state courts

(Alden)
o The S.Ct. said that state courts also had immunity from certain
proceedings in front of some federal agencies (federal maritime
commission).
A. Who enjoys Immunity?
Which entities named as a can claim sovereign immunity?
o The state
o State agencies and officials sued in their official capacity (where the state
is the real party in interest)
o Other agencies acting as an arm of the state the court looks if the
judgment against the state by law would have to be settled by the states
treasury.
Who does not get immunity?
o State officials in their individual capacity
o Cities, counties, towns, political sub-divisions of the state
We see in Alden v. Maine that States enjoy immunity from private suits in state
courts as well as Federal Courts, as the Court there held that Congress cannot
abrogate a states immunity in state Court.
Remember, if the United States or another State is a named Plaintiff, then the State
does not enjoy Immunity!
We also see in the Federal Maritime Commission Case, that a States immunity has
not only extended from Federal Court to State Court but also to quasi-judicial
Federal administrative proceedings.
Federal Maritime Commission (2002)
Rule The meaning of Federal Maritime Commn: states enjoy immunity from
federal administrative proceedings that
a) sufficiently resemble a judicial proceeding and
b) are initiated by a private party.
How did the majority conclude that administrative proceedings are functionally
indistinguishable from judicial proceedings?
a) In both, a state is required to defend itself in an adversarial proceeding
b) Against a private party
c) Before an impartial federal officer.
B. Ex Parte Young SuitsOne Exception to State Sovereign Immunity
Before understanding this exception, you must understand the distinction between
Retrospective and Prospective Relief

39

 Prospective Reliefrelief directed toward the future behavior of the defendant,

such as an injunction to prevent a continuing violation of Federal law.
Retrospective Reliefrelief designed as a remedy for past behavior, such as
damages, compensation, or an injunction directed at undoing a completed
transaction. These claims are barred by the 11th Amendment.
One of the tricky things about the Rehnquist Court is trying to figure out the
difference between retrospective and prospective relief the Court said that this
difference will not always be as clear as night and day.
Prospective Relief is relief necessary to halt an ongoing violation of federal law. In
addition relief ancillary is also prospective relief.
Rule
o Ex Parte Young Suitunder this suit, a private plaintiff may maintain a
federal suit against a state official in official capacity only for
prospective relief on a federal law claim.
Why does the court draw the line here and only let prospective relief when it can be
more expensive than retrospective? They are balancing supremacy clause interests
w/state sovereign immunity interests. When the state is doing something illegal and
a violation, Supremacy Clause issues a lot of weight and go towards having
prospective relief. On the other hand, when there is no ongoing violation, the state
sovereign immunity interests weigh more
In an Ex Parte Young Suit you cant name the state or the state agency but you can
name the official in her official capacity. If a state official is acting in a way that
violates law, constitution or statute she is acting out of her capacity and therefore
does not enjoy the immunity of a state. This is the ex parte young fiction
Why didnt the Court uphold this fiction in the Pennhurst case? It said the Ex Parte
Young exception was meant to give life to the supremacy clause so there was a way
to uphold federal laws against states; but where the only claim is a state law claim
then this is not an issue and state sovereign immunity will prevail.
NOTE another exception is that the 11th Amendment does not bar the U.S. Supreme
Court from reviewing state court decisions raising federal questions, even if the state
is a defendant and the case involves retrospective relief.

State law claim

Federal Law Claim

Retrospective Damages
No (Edelman)
No (Edelman)

Prospective (inj./decl)
No (Penhurst)
Yes (Ex Parte Young)

Hypotheticals:
Wisconsin passes a statute that non-citizens cant get welfare. This is a clear
violation who can the non-citizens sue and get relief from? Lets assume there is no
Congressional statute abrogating the states immunity.
o They can get an order enjoining the state of Wisconsin from enforcing this
statute. This order would be necessary to halt an ongoing violation of
federal law so it would be OK.
40

o However, the s could not get relief in terms of reimbursing them for
money that they didnt get. This would violate Edelman.
A fed district court orders for public schools to desegregate and pony up money to
fund enrichment programs to address the current effects of the past dejure
discrimination in public schools.
o If youre the state, how do you characterize this? damages/retrospective
an attempt to impose liability for past behavior.
o If youre the you would argue it is ancillary and that it is necessary
to carry out the injunction. Prospective relief b/c it was designed to wipe
out continuing notions of past inequality.
Second Exception - Congress Power to Abrogate Congress can Abrogate when the
following conditions are met:
Two Part test for Congressional Abrogation:
1. Congress must make intent to abrogate unmistakably clear in the text of the
statute
2. the statute must be an exercise of a constitutional power that authorizes
abrogation of state sovereign immunity
1st Requirement: Language must be in the statute itself Ct will not look at legislative
history. The text must be clear. No magic words required by the Ct will only look at the
text of the statute.
2nd Requirement:
Seminole Tribe v. U.S. (1996)
This case marks the furthest that the Court has gone with pushing state sovereign
immunity; this was a 5-4 decision and the 4 dissenters have refused to see this case
as good law.
HoldingThere was intent to abrogate BUT Congress had no intention to do so
under the Commerce Clause. They also suggested that there is no power under
anything in Article I to do so. To do this, the Court had to overrule Union Gas.
After Seminole, how can Congress abrogate? They can try to cast it as 5. But the
problem is that the Court is still narrowing 5 power; Federal enforcement a
federal agency can bring suit against states for violating federal rights; states can
waive their sovereign rights how can congress induce states to waive their
sovereign immunity? Make the receipt of federal funds contingent on the states
agreeing to waive immunity.
Can Congress ever abrogate state sovereign immunity? Yes, Congress can
override it pursuant to 5 of the 14th Amendment. Cant abrogate it pursuant to an
article I power.
To what extent is each state a sovereign entity? The whole point of the
constitution is that the states gave up some of their sovereignty in favor of the
people. Was this broad concept of SSI something that the states retained?

41

 What does Souter mean by the plan of the convention? The adoption of the
constitution. He is quoting the Federalist 81 the powers the constitution delegates
to the national government are powers surrendered by the states. They surrender
their sovereignty in those areas. So if they dont enjoy sovereignty where the
constitution has given power to congress they cant really have sovereign immunity.
So, Souter is saying that states have lost their sovereignty to areas where congress
was given control by the constitution.
Two-Part Test:
1st Requirement: Yes, Congress, in the Indian Gaming statute clearly abrogated state
immunity.
2nd Requirement: BUT Congress doesn't have the authority to remove state sovereign
immunity.
Ct relied on Precedent Hans v. Louisiana (1890). Before Hans, Ct read 11th Amend to
have eliminated state citizen diversity, state foreign diversity. Hans, citizen of Louisiana
suing the state of Louisiana, trying to collect a bond. He gets into Ct by claiming a
federal question claim because state is not paying the bond. Ct dismisses claim on state
sovereign immunity.
Seminole majority interpret Hans to mean that common law state sovereign
immunity was received into the federal constitution as a federal constitution
limitation binding on the federal courts and binding on a limitation of
congressional power.
Souter in his dissent: No proof that the federal constitution perceived this notion
of sovereign immunity. Hans was wrongly decided. Hans was distinguishable
from Seminole Tribe: Seminal Tribe plaintiffs had federal law congressional
authorization for their suit. Hans Ct had no congressional authority for his lawsuit.
Hans Ct did not look into Congress power to abrogate state sov. Immunity.
Souter compares the case to Lochner which restricted the congress ability to
regulate. Common law rule of contracts to invalidate a federal rule. Both
scenarios Ct is taking common law principles and elevating them to const.
statute to advance particular philosophical goals and to use the common law
principles to trump federal. Seminole more egregious than Lochner making an
effort to make meaning to a const. term.
Holding 11th Amend and these broader background principles are const. limitations
(Limitations on Art III and binding on congress)
RULE: Congress cannot abrogate state sovereign immunity through exercise of Art I
powers but CAN abrogate state sov. immunity through section 5 of the 14th Amend civil
rights powers.
From Seminole Tribe (handout 5 at p. 35):
the 14th Amend, by expanding federal power at the expense of state autonomy, had
fundamentally altered the balance of state and federal power..

42

Temporal Argument: 1789 Art I and Art III. 1795 11th Amend. 1868 14th Amend.
Argument: 11th Amend limits Art III and 14th Amend limits 11th Amend.
Seminole sued state of Florida and the Governor. Lawsuit against state cannot go
forward b/c state did not have authority to abrogate state sov. Immunity. Against
Governor not allowed as well. Where congress intended the state to be an exclusive
remedy. How detailed and comprehensive is the statutory remedy and is the statutory
remedy narrower than what the P could receive under Ex Parte Young. Here, remedy very
detailed detailed remedial scheme exists.
Central Virginia Community College v. Katz
HoldingThe Bankruptcy Clause of Article I Section 8 itself effectuated an
abrogation of state sovereign immunity in the bankruptcy context.
After this case, you cant say that there is an iron clad rule that Congress cannot
abrogate state sovereign immunity through Article I.
Alden v. Maine Congress cant Abrogate a States Immunity in State Court Either
1999
IssueWhether a state can be sued in its own court on a federal claim where
congress supports to abrogate their immunity; so can Congress authorize Federal
claims against states in state courts?
Hold states have sovereign immunity against private suits in its own courts and
this is a constitutional immunity and means that congress cannot abrogate it. So the
Court again takes a common law immunity and makes it a constitutional issue out of
the reach of congress.
Article III and 11th A say something about state immunibility in federal court; we
may disagree over exactly what it says, but there is NOTHING in the Constitution
that mentions anything concerning state immunity in its own courts.
The majority says that the states were sovereign pre-constitution. And it was a
universal thought that states were immune from suits in its courts and that this
universal understanding was imported into the constitution. 10th Amendment.
Souter disputes this saying this is found nowhere in the record of the constitution.
He cites the Chism case for support why would this case undercut the majority
argument that the universal understanding was that states were immune in their own
courts? In that case, the majority never talks about this universal understanding. In
the Chism dissent, 2 dissenters were part of the ratifying committee and rejected the
view of state sovereign immunity. Dissent says this is a case of common law/natural
law both can be overridden by Congress.
Kennedy also makes a structural argument saying that the principles of federalism
are all through the constitution this is a throw away argument because it allows
them to fill this vessel with whatever they want.
So this case stands for the proposition that a states immunity is the same in
state court as it is in federal court.
Kennedy:

43

Pg. 94: If the principle of representative gov is to be preserved to the States, the
balance between competing interests must be reached after deliberation by the
political process established by the citizens of the state, not by judicial decrees
mandated by the Federal Gov and invoked by the private citizens Ps have
no remedy.
Pg. 95: unwilling to assume the states will refuse to honor the Const or obey the
binding laws of the U.S. (honor system) but here, the state did not obey the
laws!
Does this fit with the Marbury notion: where there is a right there should be a
remedy?

D. Third Exception A State can Waive its Immunity

Edelman v. Jordan (1974)
Facts
The Plaintiff, John Jordan, in a class action suit, sued Illinois officials who
administered federal-state of Aid to the Aged, Blind, or Disabled (AABD). Jordan
alleged that the program monies had been administered in a way that violated
both federal laws and the Fourteenth Amendment to the U.S. Constitution.
Specifically, Jordan claimed that the Illinois administrators were applying their
own guidelines which ignored federally mandated time limits, thereby not getting
aid to applicants fast enough. The federal law required that applicants who qualify
receive aid within 30 or 45 days, depending on their condition, but the Illinois
agency was taking up to four months to disburse aid - and when such aid was
distributed, it was not paid retroactively to the time when the state should have
started paying it according to the federal guidelines.
Jordan sought relief including a positive injunction to require the State to award
him and others in his position the aid that they had missed because of the lateness
in processing the applications. The United States District Court found the Illinois
guidelines to be inconsistent with the federal statute, and ordered Illinois to follow
the federal guidelines, and to release to the aid applicants all funds "wrongfully
withheld". The United States Court of Appeals for the Seventh Circuit affirmed,
and the case was taken to the Supreme Court, with agency director Joel Edelmen
named as the party representing the state of Illinois.
Rulein deciding whether a state has waived its constitutional protection under the
11th amendment, we will find waiver only where stated by the most express
language or by such overwhelming implications from the text as will leave no
room for any other reasonable construction.
So the court usually will not recognize constructive waiver b/c waiving immunity
is waiving a constitutional right and there is no implied waiving of a constitutional
right. You need very clear unequivocal language for waiver.
Exception it appears that states can waive immunity through its actions during
litigation. Where a state agency removed a lawsuit from state to federal court, the
Supreme Court found a waiver.

44

 Congress may require states to waive 11th Amendment immunity as a condition for
receiving Federal funds, and courts will enforce the waiver if Congress has set forth
the condition in very clear terms (rule from Pennhurst).
Lipides Exception: If a state voluntarily involves jurisdiction of federal Ct, it may be
found to have waived its immunity (Univ. Prof sued Univ. on employment issues, sues in
state Ct b/c state had waived its immunity to suit in state Ct. AG representing univ
removed to federal Ct and moves to dismiss on state sov immunity. Sup Ct said that
tactical use of the invoking fed Ct jurisdiction was not permissible!)
In-Class Exercise 11th A.
Defendant
New York City

Theory
No 11th a. for political
subdivision

Relief
Injunction
Damages

This probably wont work

Counter Argument
(representing the city)
The city is acting as an arm
of the state (the standard is
that you have to show you
are under the control of the
state).
You can also argue you are
not the employer.

State official in their state

official capacity

Ex Parte Young

Prospective Injunctive
relief

(representing the
communions of the dept of
heath)
Statute provides for
remedial relief therefore it
is not available under ex
part young b/c the remedy
is the exclusive remedy b/c
the remedy scheme is so
detailed and
comprehensive and
provides ore of a limited
relief, thereby being the
only kind of relief
available.

New York State

NYS Dept. of Health

Invoking the 14th a. due

process clause, saying the
individuals 14th a. rights
have been compromised.
So, congress abrogated
FILSA.

Anything specified in the

statute itself (here the
statute says that they have
a right to injunction and
back pay).

Seminole this is not 5

legislation but rather art. 1
legislation.

This argument probably

wont work

So you ask:
(1) did congress intend to
abrogate state sovereign
immunity, and
(You would argue this falls
under the 5 of the 14th a.
you have to argue EP or

45

DPC (hard argument)).

State official in her

individual capacity

(2) due they have the

authority to do it?
The 11th a. does not protect
individual suit against state
official in their individual
capacity.

This probably wont work

Damages
Injunction you can get
injunction but it would
only run against the
individual and not the
agency.

Employer?

II. Federal Legislative Power

U.S. Const., Article I
Section 1. All legislative powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and House of Representatives
Section 8. The Congress shall have power [1] 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
[3] To regulate commerce with foreign nations, and among the several states, and
with the Indian tribes;
[18] 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
in the government of the United States, or in any department or officer thereof.
A. Basic Principle:
Federal government is one of limited and enumerated powers: an Act of
Congress is valid only if
1)it is affirmatively authorized by the Constitution and
2)it is not barred by some prohibition in the Constitution (see e.g., Art.
I 9; the fourteenth amendment, etc).
3)Political process a safeguard enumerated powers limits what
Congress can do and one Congress goes beyond the Constitution
they are invading spaces not theirs.
History:
o State rights interpretation of federalism increase Lopez prominent example of
scaling back Congress commerce powers

46

o Cts have expanded the 10th Amend has read state sovereignty into the 10th
Amend and have used 10th Amend to strike down acts of Congress
B. Sources of Congressional Power
The main source of Congressional power is its enumerated powers in Article I,
section 8. However, other constitutional provisions, such as Articles III and V and
section 5 of the 14th Amendment also confer power on congress.
Article I Congress has the whole of the National Legislative authority, but it is not
a general power and not unbounded they have ENUMERATED powers.
What about states? Do they have some grant of power from the constitution? States
DO NOT have to point to anything in the federal constitution because the source of
their powers are their states constitutions.
So the question is what are the federal regulations on state acts? The Supremacy
Clause states cant legislate in a way that conflicts with national legislation, cant
legislate in ways that conflict with powers left to congress, i.e. immigration, cant
legislate against a constitutional prohibition
Federal legislation has to be (1) authorized affirmatively from the constitution and
(2) federal legislation cannot contravene any prohibition in the constitution. US
Const not the source of state authority only federal authority. So, state legislation
does not have to pass these 2 hurdles. States cannot enact laws that conflict with
federal statutes (Art. 6), states cannot intrude into areas that the Const. entrusts to the
national govt (war powers, naturalization, etc.)
State legislation:
2 Limits on Congress
o Internal Limits (aka federalism-based limits) Congress may act
only within the bounds of powers delegated to it by the constitution. A
requirement that congress act within an affirmative grant of the
constitution. Sometimes referred to federalism based. It determines the
outer bounds of congress authority
o External Limits Congress may not exercise any power in violation of
a constitutional prohibition or a constitutional right. Even if it comes
within the scope of the outer bounds, it violates a Constitutional
prohibition. i.e. congress passes a law saying literature on stem cell
research cant be transported across state lines. So this is within its internal
limits because under commerce clause congress can determine movement
of goods across state lines. BUT it violates an external limit because it
violates the 1st and 5th Amendments.
Eras in Supreme Court Jurisprudence re Congressional Power
Early 19th Century/Era of Nation Building
(McCulloch, Gibbon)
- controlled by federalists in favor of strong national government. Led by Marshall
Late 19th early 20th Cent

(E.C. Knight, Hammer, etc.)

47

Lochner Era
- Conservative judicial activism
1937 1995
(Jones & Laughlin, Wickard, McClung, etc.)
New Deal/Modern Era
- Liberal judicial restraint re congressional power
1995 - ?
State rights revival
- Conservative judicial activism

(Lopez, Morrison, Printz, Garret, Seminole, etc.)

C. Necessary and Proper Clause

Section 8, Clause 18. All Necessary and Proper Laws.
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 in the government of
the United States, or in any department or officer thereof.
McCulloch v. Maryland
FactsThis case concerned a state law that taxed the activities of US Bank, a
Federal financial institution.
Issuedoes Congress have the authority to establish a National Bank?
His first argument is structural based on 10th A says the constitution doesnt rule
out implied powers. He compares the 10th A to the articles of confederation had
something similar to the 10th but it said powers expressly. The 10th doesnt say that
so it means that the constitution didnt intend to list every single power that congress
had. The clear intent of the const was to give discretion to choose the means that the
constitution gives it power to carry out. It is a constitution we are expounding.
Congress has the discretion to choose its means to carry out powers assigned to it by
Const.
His second argument is based on the Necessary and Proper Clause
o Marshall rejected the states argument that the NPC was designed to limit
Congress to the choice of means that were most direct and simple.
o Necessary doesnt mean absolutely necessary
o To employ the means necessary to an end, is generally understood as
employing any means calculated to produce the end, and not as being
confined to those single means, without which the end would be entirely
unattainable.
o Degree of necessity is not left for the court but the political process
So Marshall holds that congress has extremely broad powers to carry out the
constitution.

48

 When ever you are considering the constitutionality of an act of congress, always
think of the ends and the means look at the goal of the legislation and how close it
comes to fulfilling that goal
So, what is the goal here? Carrying into effect the enumerated powers of taxing,
raising armies, revenue (is the end). The National Bank is the means to achieve
those goals. This is Marshalls theory and why it is constitutional.
RuleLegislation that is rationally related to a goal entrusted to congress by the
constitution is constitutional unless it violates some constitutional prohibition. This
is a pretty low standard.
State Goal ------------------------------------------------------------- Legislation
(means-ends fit)
Deference High
Legit
Rational
Important
Close
Compelling
Least restricted narrow tailored
Scrutiny
low
deference

D. Congress Commerce Power

49

Sphere of Federal Legislation Authority

Real Motives Local Impact
LEGIS

Fed Govt
EWD
Direct/Indirect
relationship btw the
motives and the
legislation
(commerce clause)

LEGLS (Natl Bank) ----- Real Motives Local Impact

Model 2 Theory Implied
Powers NEC/ Proper
- outside the sphere of
legislation
Model 1: Direct exercise of enumerated powers.
Ex: high tax on tobacco and alcohol
Is the real goal an effort to regulate health safety and morals and other topics that are
thought to be reserved to the states?
What are the real motives?
Gibbons v. Ogden (1824)
Facts NY grants a monopoly on steamship licenses to guys that give the license to
Ogden. Gibbons claims a right to sail his vessel based on a federal statute.
Issuewhat does the grant of authority under the commerce clause mean? (This was
the 1st time that the court was able to flesh out the meaning of this clause).
The Commerce Clause US Constitution, Art. I 8
The congress shall have the power
[3] To regulate commerce with foreign Nations, and among the several states, and
with the Indian Tribes.
Marshall says that court have to give meanings to the terms in the clause, he looks at
the 3 pieces separately.
What Marshall says about:
1. Commerce
o Interpreted as an extremely broad grant of authority

50

a. Ogden says that commerce is only about buying and selling

commodities
b. Marshall says no: commerce isnt just trade and commodities but in
essence all commercial activities broadly defined.
2. The several states o Anything that concerns more than one state. Areas that effect more than
one state.
3. Regulate
o Its plenary power, complete in itself. no limitations other than those
proscribed in the constitution (External Limits constitutional prohibitions)
Rule: Commerce = Broad open terms, includes any commerce involved.
Principles that Defined the Scope of Congress Commerce Power pre-Lopez
1. The Significant or Substantial Effects Test
Congress can regulate any activity that substantially affects interstate commerce,
even if the regulated activity is not itself either interstate or commerce.
Pre-New Deal Cases
1. Narrow Formalist Categories (e.g. compare E.C. Knight
(manufacture v. commerce) with Gibbons)
2. Limited Legislative Discretion
Lochner Era Cases
U.S. v. E.C. Knight (1895)
FactsAmerican Sugar Refining Company purchased four refineries in
Philadelphia, effectively monopolizing sugar refining in the United States. The
company was subsequently sued by the federal government for engaging in
combinations in restraint of trade.
o The regulation regulates manufacturing. Congress cannot regulate
manufacturing because it is not commerce (and certainly not interstate
commerce) too early in the process
o Formalist or realist mode of analysis? It's a formalist mode
o Consistent with Gibbons? No much narrower
o Manufacturing not commerce, this not in model 1 theory.
Ct/Rule relationship incidental, only indirect. Closer fit required between the
legislation and the federal goal. Manufacturing does not = commerce
The somewhat dubious distinction between manufacture and activities in
commerce is characteristic of the narrow view of the commerce power taken by
the Supreme Court between 1890 and 1937

51

 Hammer v. Dagenhart (The Child Labor Case (1918)

Facts Prohibits the interstate movement of goods that was produce by child labor
shall not move across state lines for sale.
Under a formalist approach: question to ask: does the statute involve in interstate
commerce. Answer: yes! Then upheld. But the court does not do this!
Ct looks at Congress motive. Looks beyond the form of the legislation and
determines that congress was really after social goals, like health and safety goals
beyond the reach of Congress. Social goals are within the States purview, not
Congress.
Champion v. Ames (1903)
Bars interstate transport of foreign lottery tickets. The Ct upholds the statute.
Protecting morals Ok.
Schechter v. US
o S.Ct invalidates the wage and hour provisions of the National Industrial
Recovery Act, as it relates to a Brooklyn butcher shop.
o The Court invalidated the NIRA as it applied to a Brooklyn Butcher Shop
o What model did the Court use to invalidate it? i.e. was it an enumerated
power or a necessary and proper exercise? And, why did the Court find
the act outside of Congress power? We are just talking about the wage
and hour provisions
o The Court analyzed this under Model 2 - the court says that this is a
regulation of local activity; Congress said that this was ok under model 2
b/c they were doing this as a means to effect the goal of interstate
commerce. The Court rejects this line of justification; Court said the
connection between the wages paid to these local workers was too indirect
to sustain National Legislation.
o What is the Courts fear if it doesnt impose such limitation on Congress
power? Slippery Slope; if we allow Congress to infiltrate this sphere than
there will be no limit to its power.
Carter v. Carter Coal
o The Court invalidates provisions of the Coal Conservation Act
o Failed under Model 1 (direct exercise of an enumerated power)
definitional approach; coal production is not commerce and employment
is not commerce. The Court took a formalist approach
o Failed under Model 2 It is not the extent of the impact but the
relationship between the activity and interstate commerce; the Court said
that Congress was really trying to regulate something that was left to the
states (labor and pay)
NLRB v. Jones & Laughlin

52

 Holding court upheld the national labor relations act (guaranteed employees the
right to organize and collectively bargain applied internationally in manufacture
and production)
After Schechter and Carter there was fear that this statute would fail in the Court b/c
it had to do with manufacture.
The here was the 4th largest conglomerate in the US and it spanned a number of
states so the Court said that industrial strife in such a big company that spanned
several states could in fact have an effect on interstate commerce. The Court from
here then seemed to move into a more deferential mode.
Rule
o Substantial Effects TestCongress can regulate an activity even if not
interstate and not commerce so long as the regulated activity has a
SUBSTANTIAL EFFECT on interstate Commerce.
The courts begin to reject the formalist categories and it implies that the
direct/indirect limitation on Model 2 is NO longer good law.
2. Aggregate or Cumulative Effect Rule
Congress can regulate activities that, taken alone, would have no effect on interstate
commerce so long as the cumulative effect of all such activities nationally would
have a substantial impact on interstate commerce.
Wickard v. Filburn (1942)
Facts National aggregation production limits to a family farm. Taken alone, the
farmers 23 acres of wheat was going to have 0 impact on interstate commerce, but
the court upholds the applications of national legislation limiting this farmers amount
of wheat.
Rule
o Aggregation Principlecongress can regulate activities that considered
individually would have no effect/impact on interstate commerce but
aggregated nationally (add them up), if it then does have a substantial
effect on interstate commerce, then congress can regulate it.
Since Filburn was growing his own wheat and not purchasing it he was not going to
the market place, but if a ton of Filburns exist then less and less people are going to
the market.
So looking at this with Jones, you can see what an enormous expansion of Congress
power these caused.
3. The Irrelevance of Congressional Motivation
Congress may directly regulate interstate commerce for any reason, even if
Congresss "real" purpose is to achieve some goal that would otherwise be outside its
constitutional authority.
U.S. v. Darby (1941)
53

 Factsat issue was a Federal statute, the Fair Labor Standards Act (FLSA), which
prohibited the shipment in interstate commerce of certain products manufactured by
employees who earned less than the minimum wage or who worked more hours than
a specified maximum. The statute also prohibited the employment of workers, at
other than the prescribed wages and hours, in the production of goods intended to be
shipped in interstate commerce.
2 provisions of the act 1) prohibited interstate transport by workers making less
than minimum wage (this is model 1 a direct exercise of congress enumerated
power of regulating commerce across state lines). 2) keeping commerce clear of
unfair practices model 2.
RuleThe Court will not look to what Congress motives are when exercising their
Commerce power so long as Congress is not running afoul of a constitutional
prohibition. It doesnt matter what Congress real motives might be. It is fine if
Congress wants to achieve social or moral or other goals.
As a lawyer, you would have wanted to argue that the statute was unconstitutional
based on Hammer v. Dagenhart look at Congress motivation and if that motive is
something reserved to the states then it should be shot down, BUT The Court
overrules Hammer.
o This case involved a Federal act regulating the employment of children
o So what strategy did they use to regulate child labor in light of EC Night?
Congress banned the interstate transport of goods produced by under age
children.
o SC holds that congress power to regulate interstate commerce is banned
where the goal is to further societal goals like protecting the nations
children. The goal must be commerce.
o The motive and purpose of a regulation of interstate commerce are matters
for the legislative judgment upon the exercise of which the constitution
places no restriction and over which the courts are given no control.
Whatever their motive and purpose, regulations of commerce which do
not infringe some constitutional prohibition are within the plenary power
conferred on Congress by the Commerce Clause. (pg. 208)
o Using a formalist approach, what result would the SC reach? It would be
upheld because it deals with commerce. BUT the SC invalidates the
statute. So there is really no sticking to any approach during this era
except that regulation usually loses and free market wins.
So Darby stands for three propositions
o Can regulate commerce for any reason (Ct wont inquire into motives)
SC wont look into congress purpose or real motives
o congress can reach into areas that were thought to be reserved to the states
through use of its commerce power
o congress gets wide latitude to choose the means to meet a federal end (no
more direct/indirect limitations);
Darby gives congress virtually unlimited latitude to choose the means to reach a
federal end. If congress wants to use commerce power to improve working
conditions it can do that. It can attempt to achieve these means.
54

Perez
This case adds to Darby
Rule
o Deferential Rational Basis ReviewCongress does not have to develop
a legislative record to support its theory of regulation that it has an effect
on interstate commerce.
So adding all of the New Deal Doctrine, we get doctrine that shows judicial
deference to congress congress can pretty much do whatever it wants as long as it
doesnt run afoul of a constitutional prohibition.
Heart of Atlanta and McClung
Issuein both cases, the issue was whether Congress had constitutional authority to
enact landmark civil rights legislation. These cases involved racial discrimination in
hotels and restaurants.
The legislation said that there can be no discrimination in public places such as a
restaurant or hotel.
The theory for sustaining this legislation falls under Model 2 (it is outside the sphere
of their power). The real motive may have been equality, human dignity, etc.
But the statute is justified on the grounds that it is a means of protecting interstate
commerce, b/c racial discrimination in these places was interfering with interstate
commerce, b/c blacks couldnt travel b/c there was no accommodations. There was
less interstate commerce and traveling carrying on because of the discrimination
This legislation was a MEANS of protecting interstate commerce.
The Court makes clear that the standard of review is Rational Basis Review. i.e.
Could Congress have rationally concluded that the required relationship between the
regulated activity and interstate commerce exists?
Ct uses the phrase Affect Commerce If the activity affects commerce then can
be regulated.
Ct confirmed the aggregated affect rule from Wickard
Ct confirmed that real motives dont matter. Even if Congress was after civil rights
doesnt matter.
Hypothetical:
Suppose your counsel for a senator and the senator says that Machine guns are terrible
and he wants federal legislation that eliminates production of machine guns in the US.
How can he do it within the scope and powers of congress (this way it will be upheld
based on the Theory in Darby)?
o There are two sections:
1. make it illegal to transport guns across state lines
2. bar the production of machine guns in the US.
The federal goal is to clear out machine guns; the means is to
prohibit production of the guns (Model 2).
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4. Rational Basis Standard

Standard of review: Rational basis review: the inquiry: whether it is
relationally related to a legitimate govt interest. Ct gives deference to
Congress.
The courts defer heavily to congressional assertions that a particular activity
"substantially affects" interstate commerce or that a particular congressional
regulation furthers a federal end (like the regulation of interstate commerce.)
If there is any reasonable basis for such congressional assertions (formal
findings are not required) the courts will accept them. (E.g. Perez)
ELEMENTS OF NEW DEAL ERA COMMERCE CLAUSE DOCTRINE
3. Substantial Effects Test (Jones & Laughlin)
4. Aggregation Principle (Wickard)
5. No Motive Inquiries (Darby)
6. Deferential Rational Review (Perez, McClung)
7. No Congressional Findings Required (Perez)
Note:
People moving across state lines = commerce (the movement of people)
U.S. v. Lopez 1995 (cited for current commerce doctrine)
FactsThe Court (5-4 decision) struck down the Gun Free School Zones
Act as stepping over Congress commerce clause power. This Act made it a
crime to hold a handgun inside of a school zone. The act had been adopted
pursuant to Congress commerce power. Lopez challenged the
constitutionality of the statute on the grounds that it exceeded the scope of
federal power under the Commerce Clause. The question was whether
possession of a gun in a school zone was sufficiently related to interstate
commerce to justify this exercise of power. The Court held that it was not.
Majority says it's a criminal regulation and maybe one in education. Dissents
perspective a slippery slope. Rehnquist distinguishes between Lopez and
Wickard the Ct in Wickard was regulating economic activity (growing
wheat at home for personal purposes). This regulates crime.
Dissent: it affects an educated workforce skilled future workers. Businesses
less likely to develop in areas of high crime. Quality of education affects
economy/commerce. Regulates market in hand guns
Kennedy/OConnor: Ct made a mess of commerce clause jurisprudence
during the Lochner era. Deference should be given to Congress. Edu is an
area where States regulate. traditional state concern test (not the rule).
Regulates schools.
Standard of review: Lopez alters the standard
Categories of Permissible Commerce Clause Legislation (areas where Congress
can regulate); congress may
1) regulate the use of the channels of interstate commerce

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 Ex. barring interstate transportation of a good. Ex. - Darby

2) regulate and protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the threat may
come only from intrastate activities
Ex. destroying an aircraft or throwing rocks at cars on highways
(non-economic)
Even though the threat may come from an intrastate noncommercial activity. If youre trying to figure out a way to justify
non-economic activity is under this category. If you can say that
the activity is being regulated to protect people or things in
interstate commerce. An example is the federal arson statute
makes it a federal crime to commit arson on a business that does
interstate activity.
3) regulate activities that have a substantial relation to interstate
commerce or substantially (more stringent that significant) affect
interstate commerce.
There needs to be a stopping point a way to limit Congress
regulating power under the commerce clause. So, the activities
must have a substantial relation or affect on interstate commerce.
Discussion of Category 3 (Lopez)
Overview of the test The real action in Lopez comes under Category 3 the
SUBSTANTIAL EFFECTS TEST. It is the debut of the economic/non-economic
rule this only applies to Category 3 analyses! If the regulated activity is economic,
the short answer is that congress can regulate it. The standard will still be rational
basis and the court will consider the aggregate/cumulative impact. Basically all of
the New Deal and post New Deal deferential standards will be in play and the
legislation will almost always pass. BUTif the regulated activity is non-economic,
how does the standard change? THERE WILL BE NO AGGREGATION! One
thing that many think the CJ may be saying is that if there were some findings in this
case, then under Wickard, the Court would have upheld it under substantial factor
When in Category 3, the Court will characterize the regulation as either economic or
non-economic
If it is economic then we are in Pre-Lopez Land, i.e. aggregation (Wickard), rational
basis (deferential form), and basically all of the New Deal doctrinal elements. So, as
a practical matter, Congress would be able to do whatever it wants its Constl).
If it is non-economic, then aggregation cant be used (Wickard does not apply) and
also, Rehnquist suggested that the Court would then look for some sort of
Congressional findings to show the relationship between the regulated activity and
commerce (that is a narrow way of reading the case). The broader way of reading
the case is that if it is non-economic, then there is just no aggregation. However, its
OK to regulate if essential part of larger regulation of economic activity (ex.
necessary component of Congress broader regulation of street activity
pharmaceuticals and drugs). Standard of review is unclear.
Post Lopez, how can Congress regulate non-economic activity?

57

1) Part of a Broader Economic ActivityIn prior cases, Congress has been

allowed to regulate non-economic local activity as long as it is a larger part
of broader economic activity.
2) Jurisdictional HookIf Congress includes a jurisdictional hook in the
statute, then this is a justifiable commerce clause regulation of noneconomic things. i.e. something in the statute has to involve cross-border
movement (people or things). Another example, after Lopez, Congress reenacted the Gun Free School Zones Act which was the same as the prior
but this time they added the jurisdictional hook that the gun had to travel
over state lines (which most guns do).
HYPO: Statute regulating public school teaching of computer literacy. Noneconomic. Thus, Congress will have a much harder time defending the legislation
Analysis of the GFSZA by the majority, concurrence and dissent
Majority
o Rehnquist claims that rational basis is still the standard, but it is fairly
obvious that this is not true.
Lofreddo said that if that were the standard, then one could
rationally conclude that guns in school zones actually do affect
interstate commerce.
Dissent
o Breyer gives the argument that if you were to eliminate effective
education, then that would have a substantial impact on interstate
commerce.
Rehnquist responds to this by saying that if we accept Breyers
reasoning, then Congress would be able to pretty much enact
anything and encroach into states powers it is a slippery slope
argument
Concurrence
o Kennedy talks about the Lochner era and how it had disastrous
consequences; therefore, he takes a more humble approach to this situation
given the past in terms of Lochner.
o Kennedy also takes a more deferential approach than Rehnquist. He says
that the Court should have a more activist/interventionist standard when
enforcing the Bill of Rights, but a more deferential standard when dealing
with Congressional power conferred by the Constitution.
o While reaching the same result as the majority, Kennedy adopts a different
test.
He suggests that, based on precedent, he could not uphold these
statutes based on a non-economic test based on substantial effects
and aggregation. If they (him and OConner) were to do this, then
they would draw the line in areas that deal with traditional state
concerns. So under their test, the Act would fail because education
is a traditional state concern.
What do all the opinions mean?
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o Thomas wants to do away with the substantial effects test altogether. Then
there is the concurrence. For him it is back to EC Knight and the
Formalist approach.
o Only Rehnquist and Scalia agree with the Lopez majority standard
o The Concurrence uses the traditional state functions test
The goal of the majority was to reign in congress and politically it would have
looked bad if there was such a fractured opinion in terms of the states rights group,
which is why they all signed onto the majority.
Under the majority and concurrence tests, the characterization of the statute is very
important to the result.
What does the majority characterize it as? Crime. Concurrence? Education.
Dissent? Gun market
After Lopez, can congress pass a law making shoplifting a federal crime? If you
characterize as economic, then you use rational basis and ask can congress conclude
that shoplifting when aggregated to the entire US and taken as a whole would affect
interstate commerce? Yes.
What about if your against it? Cite Lopez and say it is a criminal statute. Look to
see if there is a jurisdictional hook or if it is part of a broader economic issue
Can Congress pass a statute outlawing the sale of guns in school zones? Same 2
arguments.
What about possession of guns in or around private schools? Make a Category 2
argument.

Hypotheticals:
1. What would the analysis be if congress made a statute outlawing prostitution, i.e. could
congress make prostitution a federal crime?
Whats the first question you would ask under the substantial factor test?
o Is it Economic. Once you are here, you could use Wickard Aggregation
so taken as a whole, can congress rationally believe that this would have
an impact on the economy. So, the motive would probably be morals, plus
that regulation is really something usually left to the states, but it would
pass anyway so it can be seen that the goals of Lopez may not always be
furthered by this test.
2. A national statute that required the teaching of computer science in public schools
This is a Lopez Category 3 analysis
o It is non-economic so you cant use aggregation, so therefore it will not be
upheld.
3. What if they made shoplifting as a crime?
If it was characterized as an economic activity (Substantial effects test #3). Then the
test becomes: could congress aggregate all the shoplifting in the US, and if this is
enough it will pass. Wickard. Ct should apply rational basis review. Test # 2: stores

59

are in interstate commerce and if they are being the stolen from then interstate
commerce is being affected.
you could also argue that it is non-economic. What the statute regulates, you would
cite Lopez, and say that because it is a criminal statute it is not economic. Regulating
crime. Non-economic, then cant rely on cumulative affect (aggregate test). Then you
would look to see if there was a jurisdictional hook or whether it was part of some
broader economic activity.
4. What if we shift the gun free zone statute from public schools to private schools?
Arg: Private schools are businesses. Collect money for services
U.S. v. Morrison (2000)
Violence against Women act, a provision which creates a civil remedy and federal
cause of action in damages against the abuser. This is meant to address an enormous
nationwide problem that has been under addressed. Congress asserts two bases: 1)
commerce power; 2) Civil Rights Power
Congress makes extensive findings, empirical evidence, showing the close
connection between gender motivated violence and interstate commerce. The s try
to distinguish this act from the act at issue in Lopez. What is the argument?
Congress made a very impressive record, but the court doesnt buy this and rejects
the statute
The Court doesnt necessarily reject the connection between gender motivated
violence and commerce but rejects the statute anyway; why? They make a slippery
slope argument again if they accepted the reasoning by congress here, then there
would be no stopping point. Rehnquist: gender-related violence non-economic and
therefore no substantial affect test! Otherwise, Govts reasoning would allow
Congress to regulate any crime - attenuated effect upon interstate commerce. No
judicially enforceable stopping point in congress commerce power.
RULEIf the regulated activity is non-economic, YOU CANNOT USE
WICKARD AGGREGATION it doesnt matter what findings or evidence there is;
congress CANNOT reach non-economic activities through substantial factor test IF
REGULATED ACTIVITY IS NON-ECONOMIC, CONGRESS CAN ONLY PASS
THE BILL IF THERE IS A JURISDICTIONAL HOOK OR IF IT IS AN
ESSENTIAL PART OF A BROADER REG OF NATIONAL ECONOMIC
ACTIVITY. CANNOT REGULATE ON A SUBSTANTIAL AFFECT THEORY
USING THE CUMULATIVE AFFECT (under Wickard) - RAICH. There must be a
nexus between the non-economic activity and commerce: Under Category 1
jurisdictional hook.
IMPORTANT Morrison shows that findings are indeed important!
How would you redo the VAWA so that the Court would accept it? Perhaps you can
see if the instrument used in the crime cant cross state lines, etc that is an example
of a jurisdictional hook. If you say something along the lines of someone crossing
state lines that abuses women that would be too broad for the court
You can also try the broader national commerce one.
Broader national economic activity: Transportation

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Gonzales. v. Raich
Upholds the controlled substances act for homegrown marijuana for medicinal
marijuana.
Does this case change the Lopez Test? This case suggests that if Congresss statute
falls within the category of whether the statute is a necessary part of a broader
regulation of economic activity, then rational basis will be applied. Part of a broader
reg of econ activity. Homegrown marijuana, considered in the aggregate would
impact the interstate commerce of illicit drugs. (could fit under category 3).
Congress can consider the cumulative impact of non-economic activity to determine
if the activity impacts a broader reg of econ activity. Rational basis review under the
Raich theory.
RULE/QUESTION: Could congress have rationally concluded that the noneconomic activity in the aggregate was an essential part of a broader regulation of
economic activity?
Hypothetical:
The Federal Freedom of Access of Clinic Entrances Act
The first question for whether the statute would be passed:
o What does this statute regulate (the different characterizations)
o Criminal regulation b/c it is a crime to be obstructing, or
o You could argue that it is economic
o How do you argue for or against the constitutionality (keeping in mind the 3
Lopez categories):
o Under #3
o If recognized as a crime: This cant be justified under 3 b/c it is about
regulating crime (not economic) so you cant get Wickard Aggregation or
there is no judicial hook. (This is an argument NOT in favor).
o Under #2
o Argument for this protects the businesses themselves, it may not be
commerce or interstate, but congress can protect the business themselves
from the economic threat (interstate commerce and the moving of
business). (This is the non-economic intrastate activities).
E. 10th Amendment
Amendment 10. Powers reserved to states or people
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.
There are two distinct interpretations of this Amendment
Textual

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o the 10th A simply means what its words say. The Constitution gives
specific powers to the Fed government and anything not in the Const goes
to the states.
o On this interpretation, the 10th A doesnt have any substantive content it
doesnt add anything to congress powers and it doesnt require that
Article I powers be looked at in any different way.
o The states have to look to the national political process for the protection
of states rights this is not an area open to judicial interpretation.
State Sovereignty
o the 10th Amendment has substantive meaning beyond the words of the text.
The amendment imposes substantive limits on congressional powers; it
confirms unwritten background principles of state sovereignty that
imposes external limits on power to Congress under Article I powers.
o Example, under this view, the 10th Amendment poses a limit on Congress
Civil Rights powers. So it imposes limits on Congress to act in ways that
unduly intrude on state sovereign interests. This holds weight during the
Lochner period. Rejected by the Ct during the New Deal Era. (emerges in
Natl League of Cities, then rejected by Garcia)
What is the analytical parallel between the Courts 11th Amendment work and the 10th
Amendment state sovereignty approach? The Court is exerting unwritten
background principles and rising them to the level of constitutional protection.
10th Amend state sovereignty Ct is reading into the constitutions text
11th Amend - Ct is reading common law principles into the constitution.

Major Contemporary 10th Amendment Cases

Natl League of Cities (1976) (state sovereignty interpretation)
Garcia (1985) (textual interpretation)
N.Y. v. U.S. (1992) (state sovereignty interpretation)
Printz (1998) (state sovereignty interpretation)
Condon (2000) ?
National League of Cities (1976) State Sovereignty Approach
This is a 5-4 decision, written by Rehnquist
Here, the Court declares unconstitutional Congress Fair Labor Standards Act.
Rule10th A prohibits Congress from using the commerce power to displace states
power in traditional state functions. This rule has been overturned but we may see it
coming back (i.e. Kennedys concurrence in Lopez).
The theory is that the 10th Amendment carved out a sphere of protected state
sovereignty that cant be reached by congress even through the exercise of a
delegated power. This is an external limit on Congressional power. The Court finds
that a States decision about wage rates is in that area that cannot be touched by
Congress. External limit: congress cannot use its Art. I powers to intrude into
traditional state functions. Without external limits there would be little left of the
states separate and independent powers (slippery slope idea in Lopez) there must
be judicial limits on Congress.
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 Wage and hour protections to the employees.

o How would this be defied under Lopez, is it good commerce clause
legislation?
o This would be in category 3, then you look at whether this is a regulation
of non-economic or economic. This is economic. So the next question is:
could congress reasonably concluded that wage rates would have affected
all the problems (aggregating the claim)? Yes. This falls within regulation
by commerce clause.
Category 3: economic (has to do with wages), look at cumulative wages to see if it
would qualify. Rational basis could congress had rationally concluded that wages paid
to public employees, considered in the aggregate, affection interstate commerce.
Garcia Textualist Approach (1985)
The Court here overrules National League of Cities. 5-4 decision
The Appellant, Garcia brought suit against his employer the San Antonio
Metropolitan Transit Authority arguing that its function as a transit authority was a
non-traditional function of state government. Thus, it was bound by the standards
of the Fair Labor Standards Act (FLSA).
HoldingCongress has the power under the Commerce Clause to extend to fair
labor standards. The Court says that the 10th Amendment does not create external
limits on congress Article I powers. Cts cannot use the 10th Amend to enforce its
own view of federal state relations must go through the political process.
Rehnquist Dissents
FLSA is constitutional only part not constitutional that purports to authorize
individual suits against state employers for back wages, relief that resemble
retrospective damages - Alden reads in Const. limitations.
N.Y. v. U.S State Sovereignty Approach (1992)
The court strikes down the law level policy of radioactive waste. This wasnt
initiated from Washington, no one wanted low level radioactive waste. Governors
asked congress to ratify an agreement that the states had made. (States cannot make
agreements w/o congresses approval).
Facts A federal statute required states to either provide for radioactive waste
disposal or take title to waste made within the states borders. New York claims the
statute is an impermissible violation of state sovereignty.
Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985
(the Act). The Act attempted to force states to arrange for the disposal of radioactive
waste. The three parts of the Act were: (1) a monetary incentive to encourage states
to open their own waste sites; (2) an access incentive, where states without waste
sites could be denied access to waste sites in other states; and (3) a take title
incentive, where a state that did not arrange for disposal of its waste would be
required to take ownership of the waste. Under the take title provision, states would
be liable for damages incurred by the waste owner or as a result of failure to have
their own waste disposal site. New York claimed the Act violated the Tenth

63

Amendment of the United States Constitution, by invading the sovereignty of the

state. New York appealed to the Supreme Court of the United States.
This was a 6-3 decision, written by OConner
HoldingCongress cant force the states to do something, but it can create
incentives to do something
What about this statute fails the test?
o The statute puts NY State in the choice of regulating low level waste in
accordance with the congresses wants or to regulate it. Both, are choices
which the state doesnt want to do.
RuleThe Court will draw a distinction between Statutes of General Applicability
and Statutes directed solely at states.
o General applicabilityapplies across the board to private parties and
state entities that are in the same position as private parties. The 10th
Amendment does not limit such legislation. i.e. fair labor standards act
applies to gov. employers and private employers. So this means regulation
of private actors only or regulation of public AND private actors. These
regulations will still be analyzed under the Garcia Standard and there will
generally be no limits. So these statutes basically get a free ride. Clear
statement rule clear statement that Congress intended for state actors to
be included in the statue.
o Not General applicability: If statute directed only at states in sovereign
capacity would run down the stricter 10th Amend line of analysis. Ex.
Statute that says States must report crime rates to the FBI once a year.
o Frist Step: statute of general applicability or not.
o If statute of general applicability Garcia side analysis
o If statute directed to states in sovereign capacity no intrusion on
core of state sovereignty. No commandeering (taking control of) state
legislation. NY tells us that Congress cannot compel a states legislature to
adopt by statute a federal regulatory system. 10th Amend analysis does not
apply if state is given incentives to act. ASK if intrusion into state
sovereignty if yes, unconstitutional!
So, did the Court overrule Garcia? No; but does it accept the reasoning of Garcia?
Yes; Ct. says there are substantive limitations that act as external limitations on
Congressional power that the Court will actively enforce; which the court says is
found in the 10th A.s Garcia was textual version of 10th Amend.
This formulation appears to return the doctrine back to National League of Cities and
back to the State Sovereignty approach.

Reno v. Condon (2000)

FactsStates were selling its states drivers license information and the act
prohibited that. The S. Ct said that the 10th amendment was not a barrier to this. One
argument is that the statute does regulate both public and private so it should act as
general applicability. But the other argument is that it regulates owners of databases.
Condon is refining the distinction drew. It is not whether it applied to the states only,
but whether it applied to the states as sovereigns (as regulators, governors).
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 Why did the Court analyze this statute along the Garcia side of the analysis? The
statute actually does regulate public and private so it should be seen as one of general
applicability
Ct. also sees the state being regulated as owners of databases and not sovereigns.
RuleThe question is not whether it applies to states only but whether it
applies to states as sovereigns (governors; regulators) then it will be on the
states only line. If it regulates states as non-sovereigns (market participant;
database owners) and not in its capacity as a sovereign then it falls under
Garcia and the statute will be upheld.
Standard for judging the constitutionality of a states only act (this is called the NY
side of the analysis)? First, you have a commerce clause regulation and you
determine that it is designed against only states. So what does it mean to say that it
cant interfere with the core of state sovereignty? In NY v. US this means that
Congress cant commandeer state legislative processes; meaning that it cant compel
state legislature to enact or enforce federal regulatory programs. This is the holding
from NY v. US
If the statute regulates the state as a governor or a regulator, you are in the NY side,
and the court is going to task if this imposes of the states legislative process. It
cannot compel the state legislature to adopt a federal regulatory program.
On a test the first question is which branch of the 10th Amendment line do you go
down?
Printz (1997)
Brady bill, gun control law, set federal limits on who could buy a gun. This required
gun dealers to ask the local chief law enforcement officer, of info concerning
whether the prospective purchaser was able to get a gun under the federal law.
(essentially, they were looking to see if the person had a felony).
This was a 5-4 decision, authored by Scalia
Holdingthe statute was struck down, this is going beyond NY with legislative
processes to simple executive enforcement now.
After Printz can congress require state judges to enforce federal law (NY says
congress cant force legislature to enforce fed law and Printz stopped state executive
to enforce federal law) No. Article VI says fed law is supreme among state
judiciaries
Lofreddo says that the disturbing thing about Scalias argument here is that there are
virtually no absolute rights in the constitution, but here the court is setting up state
sovereignty as an absolute right.
Does Printz mean that state officials no longer must abide by federal law? State
officials must abide by federal law, but there are certain laws that are prohibited by
congress b/c of the 10th A. nothing gives state officials the right to ignore federal
law.
3 ways to get around Printz (to abide by the Printz rule): Legislative Alternatives

65

Preemption the FEDs decide they are going to regulate and the states stay out of the
way. They forbid state regulation in that area. There is nothing wrong with this as long as
it is within the commerce power.
Conditional Preemption congress says that either the states regulate (the way the
federal govt want it) or the federal govt will take charge and regulate in that area. No 10th
Amend limit on that. (Ex. Affordable Care Act states are supposed to set up those
exchanges, but if the state does not want to then the federal govt will. Statute gives States
a choice, thats why its not unconstitutional)
Conditional Spending (if non-coercive) instead of directly mandating local law
officials to participate gun a state (gun control), you give incentives like giving funds for
anti-crime. (so, if they dont do this they dont get funding). Conditional spending not
limited by the 10th Amend unless it crosses the line into coercion.

10th Amendment
Federal Legislation
(Commerce clause)

General Applicability:
(reg private only, reg private and
public)
Regulate states as non-gov (nonsovereign capacity).. mkt
participates, data customers.

States ONLY
(States as States)

States in sovereign capacity (governors and

regulators).
States only states as states.

Garcia
- virtually no J & Dic EWF
limits

NO interference w/ core of state sovereignty.

NY: no commandeering of state legislative
process.
Printz: cant compel state/local officials to
enforce federal laws.

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F. Congress Civil Rights Power

Current Civil Rights Power Rule
Congress Civil Rights Power is solely remedial; no power to (re)define 14th Amendment
rights
Congress may enact remedial legislation to prevent, deter and/or remedy violations
of the 14th Amendment.
Such remedial legislation can prohibit conduct that is not itself unconstitutional, as a
means of preventing, deterring, or remedying 14th Amendment violations
(Kimel/Garret: Congress may outlaw a somewhat broader swath conduct than is
proscribed by the 14th Amendment.)
The remedy prescribed by the legislation must be congruent and proportional to
the injury or threatened injury to 14th Amendment rights. (The Court says that this
assures that the legislation is remedial and not an attempt to redefine the scope of
the Constitutional rights).
How The Supreme Court Applies the Rule
1. What is the Const. (14th A) right the statute aims to protect, and the nature and
degree of the injury or threat of injury to the right?
2. What is the scope of the statutory provision (determine the scope of the remedy
provided by the challenged legislation)?
3. Compare 1 and 2; if a significant portion of the conduct outlawed by legislation is
constitutional, the Court requires a showing that legislation is indeed congruent
and proportional to the harm/threatened harm to 14th Amendment rights; (strong
measures may be permitted to remedy intractable problems, but legislation
outlawing a vast range of Constitutional behavior will be deemed not a
proportional response to insubstantial injuries or threats to 14th Amendment
rights.)
4. In Kimel and Garrett (involving non-suspect or quasi suspect age or disability
classifications), the Court required findings and evidence of a significant
pattern or wide spread pattern of unconstitutional behavior by the states.
5. In such cases, the Court closely scrutinizes the quality of the evidence in the
legislative record, and subjected the legislation to a standard of review equal to or
more stringent than intermediate scrutiny.

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Major Contemporary S.Ct Rulings regarding

Congresss Power Under 5 of the 14th Amendment
Katzenbach (1966)

(Voting Rts Act upheld)

[eq. prot.; race/ethnicity; rt to vote]
-----------------------------------------------------------------------------------------------------------------------------------------Boerne (1997)
(Religious Freedom Restoration Act voided)
[free exercise of religion]
Florida Prepaid (1999)
College Savings (1999)

(Patent Act voided)

[due process; property]

Kimel (2000)

(ADEA voided)
[eq. prot.; age]

Morrison (2000)

(VAWA voided)
[eq. prot.; gender; state action]

Garrett (2001)

(ADA Title I voided)

[eq. prot.; disability]

Hibbs (2003)

(FMLA family-care upheld)

[eq. prot.; gender]

Lane (2004)

(ADA Title II upheld as applied)

[eq. prot; due proc; access to courts; disab.]

Coleman (2012)

(FMLA self-care voided)

U.S. Const., Amdt. XIII

Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place
subject to their jurisdiction.
Section 2.
Congress shall have power to enforce this article by appropriate legislation.
U.S. Const., Amdt. XIV
Section 1.

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All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article.
U.S. Const., Amdt. XV
Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.
Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.
13th Amendment Rule: under 13th amend, federal legislation so far as necessary (pg.
372)
Katzenbach v. Morgan (1966) Remedial Theory v. Substantive Definitional Theory
FactsNY state has a law which imposed an English language literacy in the right
to vote. The effect in NYC was that it disqualified many members of the substantial
Puerto Rican community. In an earlier case, Lasiter, the court had upheld the
constitutionality of the English literacy test, unless it was used for racial
discrimination purposes. They saw it as completely constitutional in terms of voting.
Despite this ruling congress enacts the voting rights act of 1965, which in part says
that the states have to admit people, who at least have a 6 grade education to vote
(even if they couldnt speak English or were illiterate).
NY state challenges the constitutionality of the VRA of 1965 (Voting Rights Act) as
being beyond congresses power
NY State Arg: 1) Sup Ct has already held that English language literacy tests for
voting is constitutional. Not violating Constitution. Congresss act under 5 is
limited to acts found to be unconstitutional by the Ct. 2) the law encourages people
to learn English.
Two Theories:
1) Remedial Theory (Nec/Prop Model 2) 5 expressly gives congress
the power to enforce these acts (the provisions) through any appropriate
legislation. Congress gets broad discretion to choose the means to achieve
some 14th amendment goal.

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 Katzenbachs goal this is not equalizing the right to vote. It was

to ensure that the PR community was not discriminated in general,
was to get equal treatment by state and local govt/officials in
services such as schools or other govt agencies (state and local).
The means was ensuring that people in the PR community can
vote in order for them to become part of the political process.
Political empowerment. If they dont vote, politicians have no
incentive to assist them.
No legislative findings proving disparate treatment
Brennan says that it is enough that we perceive a basis on
which congress could have rationally concluded that this
problem existed and that they could have responded. That
there is a 14th Amend goal.
This is true rational basis review very deferential.
2) Substantive Definitional Theory Congress can arrive at a different
conclusion from the Court with respect to the constitutionality of a state
practice. A state practice held constitutional by the Supreme Court can be
regulated by statute.
Factual Branch/Different factual conclusions - Congress,
especially in area where it has superior experience can differ w/ the
court with respect to political and social facts and realities and that
practices as interpreted as constitutional under 14th A by the
Supreme court. i.e. in terms of literacy tests
2nd Branch - Different legal conclusion (judicial underenforcement concept) - With respect to determining the scope of
its 5 powers, Congress can - the idea that courts under-enfocrce
certain rights. With things like DP and EP, Courts usually take the
narrow interpretation, not because it is the superior choice but for
institutional reasons having to do with the courts institutional role
in a Democratic society. These institutional constraints dont have
the same effect on Congress, i.e. they dont have to worry that a
broader interpretation will entrench on the Democratic process
because they are the Democratic branch.
City of Boerne v. Flores (1997) Remedial Only Applies Now; Overrules Substantive
Definitional
First of modern Sup Ct cases on civil rights power. 1 year after Seminole Tribe.
IssueWhether the RFRA exceeded congress power under 5 of the 14th?
Why did congress enact this statute? B/c of the Smith case. Congress wanted to
create a statutory protection for religious freedom to compensate for the S.Cts
removal of the protection in the Smith case based on the use of Peyote.
Before the Peyote case, the SC had consistently held that 1st A prohibited a
substantial impediment to one practicing their own religion even when it occurred
accidentally through a general applicability statute; i.e. the statute in the Peyote case

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banned controlled substances and as a result Indigenous community couldnt use

Peyote, but that was not the point of the statute.
By a 5-4 decision, the Court in the Peyote case (Smith) abandoned the rule and said
that general applicability statutes that stopped a religious practice as a result were ok.
Scalia wrote the opinion and wanted the political process to decide the issue. Go to
Congress and get exemptions.
In Boerne, coalition of religious and civil rights organizations did go to Congress to
get RFRA. The Sup Ct then went and found the Act unconstitutional.
Rule
o Ct rejects the Substantive Theory of Morgan. Instead, Marbury v.
Madison Cts say what the law is. Congress has no power to decree
the substance of the 14th A.
o Remedial Theory still good for legislation, but the 14th A goal has to
be one that the Sup Ct agrees with. Review, less rational basis and
closer to stricter scrutiny. There must be a congruence and
proportionality btw the injury to be prevented or remedied and the
means adopted to that end.
o Congress has no power to define Constitutional rights or to create new
constitutional rights. Under 5 Congress has only a remedial power
and can use it to prevent, deter, or remedy violations of the 14th
Amendment; but it is the Court that defines the scope of the 14th
Amendment. Congress can regulate or prohibit acts that are not
themselves unconstitutional under this model, so long as it is a means
of remedying, preventing, or deterring violations of the 14th
Amendment.
o TEST: There must be a Congruence and proportionality btw the
injury to be prevented or remedied and the means adopted to that
end. The
In terms of the standard, theres no longer a broad discretion to select means to
remedy the problem (i.e. rational review); there has to be congruence and
proportionality between the right violated and the remedy. So the SC is limiting
Congress power to choose means.
o Why? Applying the proportionality and congruence test assures that
congress in remedying doesnt step over the line in redefining and
expanding 14th A rights; and this test assures that. It is kind of a motive
inquiry
Why is there a greater need for the court to police congress civil rights powers as
opposed to its other powers? One theory is that the civil rights powers goes directly
against the states so they dont want to encroach on state autonomy and another
theory is that the SC doesnt want Congressional expansion of rights.
RFRA failed proportionality and congruence test - it would affect to many state laws
that were not unconstitutional in any way. This statute is going to outlaw a vast
quantity of constitutional state actions that are neutral on the their face. Enormous
amount of state behavior that would become illegal without evidence of the state

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actually interfering with religious rights little evidence that unconstitutional state
action might be at play.
If Congress is going to use 5 power it must be based on the remedial theory and
must apply the congruence and proportionality test. If the statute outlaws
constitutional conduct and little unconstitutional conduct the statute will be in danger
of failing the congruence and proportionality test.
Congresss Civil Rights Power (5 of the 14th Amendment)
The Rule:
Congresss 5 power is solely remedial; no power to (re)define 14 am. Rights.
Congress may enact remedial legislation to prevent, deter and/or remedy violations
of the 14 am.
Such remedial legislation can prohibit conduct that is not itself
unconstitutional, as a means of preventing, deterring or remedying 14
am. violations. (Kimel/Garrett: Congress may outlaw a somewhat
broader swath of conduct than is proscribed by the 14th am).
The remedy prescribed by the legislation must be congruent and
proportional to the injury or threatened injury to 14 am. rights. (Ct
says this assures that the legislation is remedial and not an attempt
to redefine the scope of constitutional rights).
How has SCt applied the rule:
1. determine scope of the 14 am right (as defined by Ct) that the legislation seeks to
protect, and the nature and degree of the injury or threat of injury to the right.
2. determine scope of the remedy provided by the challenged legislation.
3. compare 1 and 2; if significant portion of the conduct outlawed by legislation is
constitutional, Ct. requires showing that legislation is indeed congruent and proportional
to the harm/threatened harm to 14 am rights; (strong measures may be permitted to
remedy intractable problems, but legislation outlawing a vast range of constitutional
behavior will be deemed not a proportional response to insubstantial injuries or threats to
14 am rights).
4. In Kimel and Garrett (involving non-suspect or quasi-suspect age and
disability classifications) Ct. required legislative findings and evidence of a significant
pattern or widespread pattern of unconstitutional behavior by states.
5. In such cases, Court closely scrutinized the quality of the evidence in the
legislative record, and subjected the legislation to a standard of review equal to or more
stringent than intermediate scrutiny.
Does Hibbs alter this test? Does Lane?
Board of Trustees v. Garrett Congruence and Proportionality
Is the ADA (Americans with Disabilities Act) sustainable under the Commerce
Clause? It is good Commerce Clause legislation. What about the 10th A, is there a
problem there? No, this is a general applicability statute, as it covers state and
private actors.
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o So if its good under Commerce Clause and not blocked by 10th A, why are
we talking about Congress Civil Rights power? They want damages and
the s are state agencies. So the only way to do this is waiver or
abrogation and in the wake of Seminole, congress can probably only do
this under 5.
The Court holds that the ADA is not under Congress 5 authority
Rehnquist applies the Boerne analysis
1. determine the scope of the 14 Am right (as defined by the Ct) that the
legislation seeks to protect and the nature and degree of the injury or threat
of injury to that right.
In this case, what is the right the ADA seeks to protect? Discrimination
against disabled in the workplace. The basis is 14th A EPC.
What is the scope of that right? Rational Basis (Ct. looks at its own
decision in Cleburne in Cleburne the Ct said Congress was better
equipped to administer the protection needed, not the Ct). This means that
state discrimination on the basis of disability is constitutional as long as it
is rationally related to a legitimate state interest.
2. What is the scope of the remedy provided by the challenged
statute/legislation?
Here, the Court looks at the ADA itself and points out that the ADA
requires reasonable accommodations for disabled people unless doing so
would create an undue burden. So it says its unlawful to fail to provide
reasonable accommodations for a disabled worker. Nothing in 14th Amend
requires accommodations for people with disabilities. The ADA outlaws
significantly more behavior than the Cts would be willing to declare
unconstitutional.
3. Compare 1 and 2; if significant portion of the conduct outlawed by
legislation is constitutional, Ct. requires showing that legislation is indeed
congruent and proportional to the harm/threatened harm to 14 am rights;
(strong measures may be permitted to remedy intractable problems,
but legislation outlawing a vast range of constitutional behavior will be
deemed not a proportional response to insubstantial injuries or threats to
14 am rights). Does the remedy (statute) exceed what the Constitution
requires? Does it prohibit a significant amount of constitutional behavior?
The Court says yes nothing in the constitution prohibits denying
accommodation it just prevents irrational behavior so therefore it
outlaws a significant amount of constitutional behavior
4. Where the statute outlaws a significant amount of constitutional behavior,
Congress has to show congruence and proportionality.
Apparently, Congress had to have a record demonstrating discrimination
against disabled workers. The Court began to nitpick about the quality of
the findings.
Know 5 power is remedial and congress cant define 14th A rights; can act to deter,
remedy, etc. these rights. Congress can prohibit things that are not themselves
unconstitutional as a way for remedying, etc. and SC will apply the congruence test.

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 After this case, how would you sue a state under ex parte young suit? Commerce
Clause.
More than rational basis here constraining congresss choice of means and a
requirement that legislation demonstrate a factual record that supports the legislation
= heightened scrutiny (not rational basis)
Kimel v. Florida Board of Regents
FactsThe Age Discrimination in Employment Act (ADEA) makes it unlawful for
an employer, including a state, to fail or refuse to hire or to discharge any
individual, or otherwise discriminate against any individualb/c of such individuals
age. In April of 1995, librarians of FSU sued the Florida Board of Regents () in
the US District Court, the s all over 40, alleged that refused to require the 2 state
Universities to allocate funds to provide for agreed upon adjustments to salaries of
eligible University employees they claimed that this violated the AEDA.
5-4 decision
This is good Commerce Clause legislation and it is ok under the 10th Amendment.
Economic activity (employment) aggregate analysis substantial impact good
legislation. Garcia branch no 10th Amend problem b/c applies to all employers.
However, the Court is analyzing it under the Civil Rights Power because the ADEA
abrogates states sovereign immunity and this can only be done under the Civil Rights
Power. The law allows retroactive relief.
Rule
o congress power to enforce the 14th Amendment includes the authority
both to remedy and to deter violation of rights guaranteed hereunder
by prohibiting a somewhat broader swath of conduct, including that
which is not itself forbidden by the Amendments text.
The Court says under this test, they want to make sure that Congress is not
redefining the right under the 14th A, but rather that they are enacting legislation that
is proportional to what the Court has defined the right as. The Court wants to ensure
that Congress is employing remedial methods instead of interpreting the
Constitution.

Application of the Test

1. What is the Const. (14th A) right the statute aims to protect/enforce and
what is the scope of that right? Equal Protection for the elderly. What is the
scope of this right? The Court looks at their prior EP cases on the subject to see
what level of review it gets (looks at their own precedent). Here, the elderly
classification gets Rational Review and the Court says that age classifications are
presumptively rational. THEY DEFINE THE RIGHT VERY NARROWLY. Only
irrational provisions wont pass the review.
2. What is the scope of the statutory provision (determine the scope of the
remedy)? What does the statute outlaw and how does that compare with
what the 14th A outlaws? The Court looks at the language of the statute itself

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and says that the statute was very out of proportion with the scope of the right.
Why? Look at page 6 and the distinction between reasonableness and reasonable
necessity.
Under the 14th A, the presumption is that age distinctions are lawful and
therefore the burden is on the person claiming discrimination. HOWEVER,
based on the statute, age discrimination was presumptively wrong and the
burden was on the employer.
Statute stated: as long as the employer could show that using age as criteria
was reasonably necessary, whereas the constitution only bars age
discrimination if it is not reasonable, could be done. Significantly different
from rational basis standard
Although the statute fails on Question 2, the Court says that that doesnt end the
inquiry.
3. Compare 1 and 2; if a significant portion of the conduct outlawed by
legislation is constitutional, the Court requires a showing that legislation is
indeed congruent and proportional to the harm/threatened harm to 14th
Amendment rights; (strong measures may be permitted to remedy
intractable problems, but legislation outlawing a vast range of
Constitutional behavior will not be deemed a proportional response to
insubstantial injuries or threats to 14th Amendment rights.
The Court says that to justify broad prophylactic (preventative or defend)
conduct; Congress must show a significant pattern of discrimination by the
states. This is where you see the Congruence and Proportionality Test.
HYPO
Civil Rights Act of 1964
Title VII (employment discrimination)
Disparate Impact Claims
For prima facie case, plaintiff must show that:
a facially neutral employment practice has a significant discriminatory impact on
the basis of race, color, religion, sex or national origin.
Employer may defend by demonstrating that:
the challenged practice is job related for the position in question and is consistent
with business necessity.
Plaintiff may overcome that defense by showing that:

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other tests or selection devices with less discriminatory impact would serve the
employers legitimate business interest.
NY State Police has an exam that has disparate treatment and there is a finding that the
exam is only loosely related to the job. No evidence of intentional discrimination.
Officers bring suit under Title VII. NY State challenges the disparate impact as being
beyond Congresss 5 power. Washington v. Davis: EP violation needs to prove
intentional discrimination and provide evidence.
1. determine scope of the 14 am right (as defined by Ct) that the legislation seeks to
protect, and the nature and degree of the injury or threat of injury to the right.
- Protects against racism and discrimination. Right to be free from intentional racial
discrimination
2. determine scope of the remedy provided by the challenged legislation.
- Title VII above
3. compare 1 and 2; if significant portion of the conduct outlawed by legislation is
constitutional, Ct. requires showing that legislation is indeed congruent and proportional
to the harm/threatened harm to 14 am rights; (strong measures may be permitted to
remedy intractable problems, but legislation outlawing a vast range of constitutional
behavior will be deemed not a proportional response to insubstantial injuries or threats to
14 am rights).
- Congress has provided legislation that allows a to challenge something that
might have a discriminatory impact that is not intentional. Legislation gives a cause of
action for disparate impact.
- Employer is given an opportunity to show that the challenged practice is job related
and the could win if she could prove there were other ways to prove job-related
capabilities that discriminate less.
4. In Kimel and Garrett (involving non-suspect or quasi-suspect age and
disability classifications) Ct. required legislative findings and evidence of a significant
pattern or widespread pattern of unconstitutional behavior by states.
5. In such cases, Court closely scrutinized the quality of the evidence in the
legislative record, and subjected the legislation to a standard of review equal to or more
stringent than intermediate scrutiny
NY Dept of Human Resources v. Hibbs (2003)
Factsthe FMLA statute allows you to take off work to care for a sick family
member or for yourself. It requires employers to give 12 weeks. The Court upholds
certain provisions under 5 as a statute that abrogates state sovereign immunity.
NOTECt. attempted to apply the test
So what does Rehnquist say is the distinction between this and Kimel and Garret? In
terms of gender, there is a presumption of unconstitutionality as opposed to the other
2 classifications where there was a presumption of constitutionality. So here,
Congress did not have to show that much in terms of unconstitutional behavior.
Burden on the state.

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 What is the connection between what the FMLA does and this goal of protecting
women against unconstitutional discrimination in employment? Seems to use
Necessary and Proper analysis (Model 2). 14 A goal Prevent Employer
discrimination against women . Universal right to 12 weeks leave for family care
is the MEANS.
If Congress is attempting to protect groups that get heightened scrutiny, the
legislations gets deferential analysis as opposed to the other type of legislation.
Why? It may be that the SC sees gender and race as the core issues of the 14th A and
remember, the Congress is given express authority under 14th A
1. Determine scope of the 14th Amend: Statute protect against gender
discrimination
2. Scope: heightened scrutiny for gender discrimination. Burden is on the
state.
3. Rehnquist launches into the evidence of a pattern of employers hiring
women and gender discrimination. No evidence of a pattern from state
employers. Leave disparities women taking parent leave way more then
men. If men are not taking leave, then women are, which means that the
cycle of gender-based discrimination continues in the workplace. Upholds
the serotypes of women being caregivers and men not, which would
incentivizes states to view women as liabilities in terms of hiring and
promoting.
- Very deferential to congress
- Ct accepting of general analysis of discrimination amongst
private employers and applies to state employers generally.
- Const does not require 12 weeks of leave impacts a lot of
constitutional practices.
CIVIL RIGHTS POWER AFTER HIBBS
When 14th Amend provides NARROW PROTECTION (no suspect or quasi-suspect
class/fundamental right)
Congresss Section 5 power is NARROW
Court gives less deference to Congress (i.e. judicial review akin to
intermediate scrutiny re means/ends, c&p legislation record)
When 14th Amend provides BROAD PROTECTION (suspect/quasi suspect
class/fundamental right)
Congresss Section 5 power is BROAD
Court defers to Congress re civil rights legislation (i.e. rational basis
review, deference re means/ends, c&p test, legislative record)
[Hibbs and Lane as examples]
Caveat: after Coleman how does Ct decide if state aims at gender/race discrimination?
Coleman
Tennessee v. Lane

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 FactsMr. Lane was summoned to appear to answer a traffic violation on the 2nd
floor, but he couldnt get there because he was paraplegic. So, he filed suit.
Rule
o Stevens: The government can defend the statute in terms of 5 AS
APPLIED as opposed to on its face, even if the statute applies to a lot of
conduct that Congress would normally not be able to reach. Look at the
statute AS APPLIED to Ct access. (Rehnquist says no must look at all
the activity the statute may impact).
o Ct can uphold certain applications of a statute and look at the statute as
applied instead of having to look at the whole impact.
The difference between taking the statute as a whole, facially, as opposed to as
applied; in terms of congruence and proportionality. The majority applies the
congruence test AS APPLIED (and here it is access to the Courts). If you look at
title 2 on its face, there would be a disproportional impact because it allows LOTS of
state behavior that does not implicate any fundamental right.
Why does this case come out differently than Garrett, which both have to do with
disability discrimination? The right being protected here is not simply EP in general
for the disabled. What is at issue here is the fundamental right of access to the
Courts; DP
Scalia dissents and says he doesnt like the congruence and proportionality test
saying that it is unworkable and can mean anything. He says it was invented and just
pulled out of the air. He says we should get rid of all prophylactic model 2
legislation. He would abide by the precedents that allow legislature to abide by
remedial legislation to remedy race discrimination and nothing else. This would
overrule cases such as Hibbs.
Rehnquist wants to keep the scope narrow. Stevens is saying that the policy can
affect a wide array of issues and Section 5 can come into play to protect against the
various violations.
US. V. Georgia (2006)
Goodman, a paraplegic held in a Georgia state prison, sued Georgia in federal court for
maintaining prison conditions that allegedly discriminated against disabled people and
violated Title II of the Americans with Disabilities Act (ADA). Georgia claimed the 11th
Amendment provided the state immunity from such suits. The district court ruled for
Georgia, but the 11th Circuit reversed.
Before the 11th Circuit ruled in the case, the United States sued Georgia, arguing that the
ADA's Title II abolished state sovereign immunity from monetary suits. Congress could
do this, the U.S. argued, by exercising its 14th Amendment power to enforce equal
protection.
Issue
Did Title II of the Americans with Disabilities Act of 1990 validly abrogate state
sovereign immunity for suits by prisoners with disabilities challenging discrimination by
state prisons? Was Title II a proper exercise of Congress's power under Section 5 of the
Fourteenth Amendment, as applied to the administration of prison systems?
Holding

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In a unanimous decision authored by Justice Antonin Scalia, the Court ruled that Title II
validly abrogates sovereign immunity. Congress can enforce the 14th Amendment against
the states "by creating private remedies against the States for actual violations" of its
provisions, which can involve abrogating state sovereign immunity.
Morrison Violence Against Women Act
The act was outside of Congress 5 power. Why? This was a statute that governs
the behavior or private parties and pursuant to the Civil Rights Cases, Congress
cannot reach private behavior.
G. Taxing and Spending Power
US Constitution Article 1 8, Clause 1
The Congress shall have the power to lay and collect Taxes, Duties, Impost, and
Excises, to pay debts and provide for the common defence and general welfare of the
United States
Why would this power be more critical during this period? After Lopez, Prince,
Seminole, Borne, Kimmel, Garret, Morrison; Congress Authority to regulate directly
has been significantly constrained. So if you are drafting legislation for Congress,
you would want to see another way to get these statutes in other than Commerce,
Civil Rights, and also 10th A problems.
So, if you were on the judiciary committee, using the spending power, how could
you pass the statute against age discrimination from Kimmel. You would induce an
11th A by conditioning it on receiving Federal funds.
To get around a decision like Seminole Tribe
Scope of the Power
Under Lopez crime and education reserved to the states, but Congress uses
spending to reach those zones through the general welfare provision (no child
left behind, more police on the beat, etc.).
Hamilton takes a broad view, saying that Copngress can tax and spend for any
purpose. Says Congress can tax and spend for any general welfare purpose
(outside of the enumerated powers).
Madison takes a narrow view and says spending for the general welfare means
spending to accomplish some aspect of the enumerated powers. General welfare
limited to the enumerated powers tax and spend only to carry out the
enumerated powers (build an army, roads, etc), but no general authority to tax.
Hamilton wins and the RULE is that Congress can tax and spend in order to
advance the general public purpose.
There is NO INDEPENDENT general welfare power because that would be
essentially unlimited authority.
Spending power is the last untouched power of Congress.
NOTE: No such thing as the general welfare POWER, taxing and spending power
exists

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Major Taxing and Spending Cases Summary

LOCHNER ERA:
Bailey v. Drexel Furniture
10th Amen bars tax if real motive is regulating within state sphere
US v. Butler
10th Amend bars coercive use of spending to regulate within state sphere
NEW DEAL:
Helvering v. Davis /Steward Machine
(Social Security and Unemployment Insurance programs upheld; 10th Amend no bar on
use of taxing and spending power to regulate areas within state sphere; deference to
Congress)
MODERN:
South Dakota v. Dole (1987) Current Rule
Four-Part test for conditional spending
NFIB v. Sebelius
coercive use of spending
Bailey v. Drexel Furniture
FactsCongress imposes 10% tax on profits earned from manufacturing -goods
produced - from child labor. This is model 1 legislation (enumerated power)
because it directly exercises their enumerated power to tax.
The Court is inquiring into Congress real motive which is not to raise money
but rather to accentuate a social policy that is within the states sphere. The Court
here uses the 10th A as an external limitation.
Not really a revenue raising motive, but to regulate child labor - an area reserved
for the states.
US v. Butler
FactsAgricultural Adjustment ActCongress is trying to stabilize the
economy, so they were taxing food processors. In this case, they are imposing a
tax and then using the money to compensate farmers for reducing their
production. The Court invalidates the statute.
This is a model 1 legislation because Congress is directly exercising their
enumerated power to tax
This is the case where the Court selects Hamiltons view.
Rule Tax and spend to advance any general welfare purpose
Ct: Congress is using the taxing and spending power to regulate in an area
reserved to the states (Similar to Bailey) violate the 10th Amend to use the taxing
and spending power to regulate in an area reserved to the states. Using taxing and
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spending as a means to regulate violated the 10th Amend. However, funding things
by handing out money would have been OK.
New Deal Period:
Ct breaks with Bailey and Butler
Helvering v. Davis (1937)
(Social Security and Unemployment Insurance programs upheld; 10th Amend no bar on
use of taxing and spending power to regulate areas within state sphere; deference to
Congress)
Steward Machine v. Davis (1937)
FactsThe Court upheld unemployment insurance provisions created by the
Federal Government.
Rule
1. congress can tax and spend for any purpose that seems to be for the
general welfare
2. Congress can attach conditions to receipt of Federal funds, and
3. the Court will not inquire into motive
After this case, the 10th Amendment is no longer an external limit on congress
spending power. Congress can tax and spend for any purpose deemed to be for the
general welfare.
So Congress can regulate through spending in areas that are usually in a states
sphere; Congress can influence states through money this is known as
Conditional Spending.
Incentivizing is ok, coercion is not ok. Butler was coercive.
Real motive will not be considered.
South Dakota v. Dole (1987) Current Rule
FactsA federal statute that says they were going to withhold 5% from highway
funds for any state that allowed drinking on federal highways of any persons
younger than 21. They want to raise the drinking age to 21. Under 21 year olds
driving across state lines to get drunk and then driving back.
Why couldnt congress direct states to do this under the commerce power?
Couldnt prescribe a national drinking age due to 21st Amend which gives the
power to the states to regulate drinking. And, Congress cant simply direct a state
to legislate federal policy.
Not coercive because it was not substantial funding and therefore left the state
with a choice.

Current Spending Doctrine Rule (4-part test)

1. Spending must be in pursuit of the general welfare
General welfare comes from Art I.

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what is the standard for general welfare? This is very broad and there may be no
judicial limits as the Court will most likely defer to congress to decide what the
general welfare is. Nearly no limitation. Ct will substantially refer to congress
barely even rational basis.

2. Clear Statement required to attach condition to a states receipt of Federal $$

Any time there is a question in altering a balance of state and national power, the
Court will always require a clear statement (i.e. 11th A).
If a condition is imposed on a state or subdivision of the state, it must be done so
unambiguously or the Court will not enforce it.
3. Relatedness Requirementmust be nexus between condition and purpose of
expenditure.
An example of where it would fail under this rule is where Congress says it
wont give funds for highways if the state doesnt teach a history course.
NOTEthe relatedness requirement does not have to be met if it has to do with
an enumerated power i.e. Congress can withhold funds from states who engage
in employment gender discrimination. These 2 are not related but gender
discrimination is under congressional power pursuant to 5 of the 14th
(independent authority)
Purpose of relatedness requirement a means to control the slippery slope
argument where there will be congressional overreaching.
4. Must not breach other constitutional prohibitions/rights.
Forcing actor to violate constitutional rights
NoteIssue of Inducement v. Coercion
If the Court decides that it has turned into coercion and crosses the line, then
you have to analyze the condition as though Congress mandated it directly.
For example, in dole, if Congress said you raise the drinking age to 21
otherwise we are cutting off all Federal funds that the state gets. The Court
would likely conclude that this crosses the line from inducement to coercion.
If coercion is found spending and taxing power prohibited, but look to see if
there is another independent power for Congress to use to justify the regulation
and imposition of the power.
HYPO
How might congress use the spending power to deal with the problem of guns in schools?
Condition federal $ for education on not having guns in school in order to promote
school safety.
o Example statue: any state that does not adopt any kind of restriction
banning guns 100 feet by a school will have their funding reduced by
10%.
o Does this pass the Dole test: (apply test)

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1. Spending must be in pursuit of the general welfare yes,

everything passes this step.
2. Clear statement required the language appears clear.
3. Related requirement the court never defined it, you would argue
Dole. Compare to Dole is this situation a closer relationship than
drinking and highway funds. Impact of guns on edu hurts general
welfare.
4. does this violate any constitutional prohibition if it is inducing
the states, then it is voluntary since it is only 10% it is probably
inducement. However, if the schools failed to lose 95% of their
funding then it would fall more to the coercion and no longer
voluntary.
Sabri
A crime to bribe a state or local official who works for an agency that receives
$10,000 of Federal money. This was held as a proper exercise of spending powers.
This is Model 2Necessary and Proper it makes bribery a crime.
HYPO:
1. Congress decides to tax everyone by 40%; but you get a tax rebate if you agree to
warantless wire taps and searches. This is because Congress determined that it is
very expensive to train cops to abide by 4th amendment rules. Is this ok?
a. This would violate the 4th prong of the Dole Test, because it seems to be
coercing people to waive their Constitutional rights. 40% is a lot of money
and hard to refuse.
b. If it is coerced, then it is not a waiver of a Constitutional right.
c. What if it is not taxes but instead losing subsistence benefits for destitute
families?
i. No.
2. Can CUNY fight the Solomon amendment pursuant to Dole (takes away Federal
funds from schools who dont allow military recruiting on campus)?
a. It passes element 1 easily
b. Under element 2, it is clear.
c. Under 3rd element it is not related, but it does have to do with an
enumerated power of National defense Congress has the power to raise
and support the military
d. 4th element does it violate another constitutional prohibition? In FAIR,
they argued that it violated free speech, but Chief Justice Roberts rejected
this argument.
National Federation of Independent Business v. Sebelius (2012)
Facts In which the Court upheld Congress' power to enact most provisions of the
Patient Protection and Affordable Care Act (ACA) expands Medicaid to cover all adults
who are applicable. making less than

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In 1965 Congress offers money to any state that agrees to operate a Medicaid program
according to the federal guidelines for the Medicaid program. Until Sebelius, no one
thought this conditional model caused a constitutional problem.
Holding Violates 10th Amend. coercive of states. Congress cant condition states
receipt of Medicaid funding. Can Congress direct a state to regulate a Medicaid program:
NO (NY and Printz).
Ct Roberts says: There are limits on Congresss power to condition continued state
receipt of monies for existing federal program on states agreement on a new federal
program. The Ct is giving Congress almost no deference on this question: New
Program/or Amendment to existing program.
Inquiries:
1. Same program/New Program [if new program, then coercion]
Is the change the creation of a new program or an amendment to the existing program?
If the amendment is just altering the existing program than theres no 10th Amend
problem. If the amendment is for a new program, then Ct goes to coercion analysis.
Standard for determining whether you have a new program or not? No clear standard.
2. Coercion?
Standard for coercion: we know it when we see it. We dont have to draw the line,
because wherever that line is, this statute is surely beyond it (Supp pg. 106). Problem:
litigants, lower Cts dont know what to do with this standard, so much uncertainty to this
standard.
Dissent (Ginsburg): repeal the Medicaid statute and enact the new statute, offering it to
the states with a take it or leave it theory.

III. Judicial Protection of Commerce Against State and Local Power

The Commerce Clause: U.S. Constitution, Art. I, 8
The Congress hall have the power [3] To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.

3 constitutional doctrines limiting state/local authority to discriminate against outof-state interest (ON TWEN).
1. Dormant Commerce Clause (the court made up the Dormant Commerce Clause)
2. Art IV P&I
3. 14th Amendment EPC
A. Dormant Commerce Clause (the default rule where congress is silent. once
congress legislates, that takes precedent)
The constitution delegates commerce power to congress and congress can exercise
that power by preempting regulation, it can authorize states to regulate commerce. If

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the power is left to commerce, but it hasnt been used, it is considered to be dormant.
Even when Congress doesnt use the commerce clause power the limitation is still
there.
Preliminary Question: why has the court created for itself an activist role in policing
the federal boundary in state incursions?) Why vigorously enforced against state
enforcement not vigorously enforced against federal encroachment? )
o There may be a hierarchy of constitutional values the value of national
unity and cohesion are given primacy. (They thought the federal courts
could safe guard national cohesion, thats why the courts take an active
role)
o political process theory/democratic theory
If a state is regulating in a way that harms out of state process they have no way to
regulate that b/c the harmed parties have no way to hold the state accountable.
The dormant commerce clause is the most frequent ground of Supreme Court
invalidation.
Why do Scalia, Thomas and Rehnquist propose getting rid of the dormant clause
doctrine?
o b/c this is a states rights issue, it is an effort to remove the yolk of federal
judicial oversight over these states.

Constitutional Values Underlying Dormant Commerce Clause Doctrine

Free Trade (Economic Theory)
National Unity (Political Theory)
Democratic Governance (Mixed Theory: polical process theory/representation
reinforcement remember mcCulloch, and caroline prudts, in 10th amendment cases
like Garcia)
Dormant Commerce Clause Scenarios
Discriminatory Tax = bad
Neutral Tax (fine) w/ exemptions for in-state actors = bad, discriminatory
Discriminatory state subsidies (subsidize its own industries) = fine
Discriminatory subsidy coupled w/ and funded by industry-specific tax (West
Lynn Creamery) = bad, protectionist.

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State/ Local
Regulation w/
Significant impact on
Interstate Commerce

Overt/Patent
Discrimination
against interstate
commerce

Facially Neutral w/
incidental impact on
interstate commerce

Protectionist Purpose
= unconstitutional
Strictest scrutiny
State/ local must prove/demonstrate

Legitimate State Interest

+
Means/ Ends Rationality
Balancing Test / Burden on interstate
commerce Local benefit (look at
availability of alternative less
burdensome means.)

neutral non-protectionist state purpose

AND
no less discrimination means.
restriction/ burdensome discrimination

NOTE: IF at any point the Ct determines Protectionist Purpose Unconstitutional

Protectionism = state isolates them from the national scope by closing off its borders.
Classic protectionism: State attempts to give an advantage to instate economic actors at
the expense of out of state economic actors. Ex. Tax/tariff on goods coming into the state
but not products made within the state. Hording resources or giving access to resources
only to instate actors. Applies to benefits at the expense of foreign nations as well as
other US states.

If the statute makes ANY reference to geography is almost certainly overt

discrimination. Origin of goods = overt/patent discrimination

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If the statute on its face makes note on the movement of goods cross state lines =
overt/patent discrimination.
Facially Neutral:
1. Legitimate state interests: almost anything as long as it is not protectionism. Can
include economics.
2. Deference to the legislature
3. Balancing Test: policy test can write the statute without mentioning geography
or origin of product then can achieve less discriminatory means.

Edwards v. California
Facts
At the height of the Great Depression, anyone who knowingly assisted a pauper in
entering the state of California was guilty of a misdemeanor. A Californian named
Edwards drove to Texas and then returned to California with his indigent brother-in-law.
Edwards was found guilty of violating the state's "Okie law;" he was given a six-month
suspended jail sentence
Rule
How does the statute interfere with interstate commerce? Transportation of persons IS
commerce. Immaterial if the transportation is commercial or people.
Dormant Commerce Clause: when Congress is silent the Ct is going to presume
that states cannot act in ways that violate the commerce clause. When congress
speaks, congress has plenary power under the commerce clause and can have
states.
Holding
Court Strikes down statute as violating the Commerce Clause. CA statute created an
unconstitutional barrier to interstate commerce.
Reasoning
The Commerce Clause forbids a state to exclude indigents. California's interest in the
health of its citizens and the sufficiency of its welfare funds do not justify the burden on
interstate commerce occasioned by the law. Byrnes's unanimous opinion observed that
"the indigent non-residents who are the real victims of this statute are deprived of the
opportunity to exert political pressure upon the California legislature in order to obtain a
change in policy."
Notes from Class
States may not close off its borders to problems of a national scope. States cannot
insulate themselves in such a way. We are one nation states are not their own
individual nations. States closing off its borders is inconsistent with the principle
of a single unified nation.
Even if CA had good reasons for keeping people out, the means they choose was
categorically impermissible under the Commerce Clause
The purpose of statute was to prevent the migration of poor people into the state.
Ct said the purpose was unconstitutional. Byrnes's unanimous opinion observed
that "the indigent non-residents who are the real victims of this statute are

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deprived of the opportunity to exert political pressure upon the California

legislature in order to obtain a change in policy."
Majority rejected Justice Jacksons concurring opinion, which rested on the PI
Clause instead of the commerce clause. Why? Majority believes that privileges
and immunities too broad and is not defined which leave too much power in the
hands of the Court. The fear is that new rights will be defined by the court. Does it
matter which clause the Court used (granted in the commerce clause or PI clause).
What if Congress authorizes a statute allowing CA to keep poor people out?
Democratic political process theory that came form Byrnes

City of Philadelphia v. New Jersey

The state is filling up with garbage from various services and it is creating a health
and environmental problem. So, they decide no more garbage from outside of the
state, they are going to ban it from coming in. This is overtly discriminatory so it
gets strict scrutiny.
Overt Discrimination: speaking directly about instate garbage and out of state
garbage and its movement across state lines.
It fails b/c there are other ways to accomplish the goals w/o discriminating. Very few
statutes are going to survive strict scrutiny review.
How would you know if it was a facially neutral state law? If there is nothing in the
statute that classifies in the basis of geography, then it would count as facially
neutral.
The court will uphold facially neutral statutes even if they have an impact on
interstate commerce (even if it is more so then overtly discriminatory).
Rule
o if a state has a protectionist purpose then it is invalid and will fail
o Prohibits overt discrimination against interstate commerce.
o Burden on state to prove no less discriminatory means
What counts as protectionism or protectionist activity? Trying to provide an
advantage to local business at the expense of foreign (out of state) economic actors.
Protectionism: This could be done by
o imposing tariffs on out of state goods or services
o Regulating out of state goods/services
o Preventing out of state goods/services from coming into the jurisdiction
o Hording national resources w/in the state
o Giving state resources special advantages
Maine v. Taylor (1986)
Maine had a statute that barred the importation of live bait-fish into
the state. Fragile ecosystem. Purpose was to protect the aquatic
ecosystem this is overt discrimination b/c it says you cant bring
a certain product over state lines. The S.Ct. upholds the statute.
Maine made this presentation at trial showing both the fragility of
the aquatic system that would be threatened by the importation of
bait fish. So the court found here was a neutral non-protectionist

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state interest. Maine could also satisfy the no less discriminatory

means test b/c there was no way to test bait fish to look for the
parasites that harm them.
Note: it is irrelevant that fish can swim directly into Maine from
New Hampshire because impediments to complete success cannot
be grounds for preventing a state from using its best efforts to limit
an environmental risk.
The reason the case book brings this up (besides it being the only
case that upholds a discriminatory state receiving strict scrutiny)
HYPOS:
1. OK passes a statute that requires all coal fired powered plants to uses 10% OKmined coal.
a. Characterize the Statute this is Overt b/c it is requiring instate actors to
use instate products, so it gets strict scrutiny.
i. Suppose the instate coal is cheaper and they want to maintain
energy costs for consumers and thats why we requires utilities use
10% OK coal? Still OVERT discrimination the requirements are
the same.
b. Now, the state has to prove:
i. Neutral non-protectionist state interest AND
ii. No less burdensome way of doing itthere are a number of ways
that the goal could be achieved w/o discriminating against out of
state coal producers. Ex. Purchase cheapest coal without
mentioning geography. Simply putting a cap on the cost of coal.
2. CA has a statue that denies welfare assistance to any US citizens who have
entered the state within the last year. Reason: states generous welfare benefits
attracts people from other states to come to CA and state wants to prevent that.
a. Characterize the statute overt discrimination! So, it would get strict
scrutiny b/c the purpose is to keep people out of their state; even if they
didnt state their purpose it is overt b/c its discriminating against interstate
commerce, but they dont state a purpose. The state has the burden of
saying something like this will save money; but it would fail on #2 b/c
there are other ways that the state could save $$.
b. Suppose congress passes a welfare reform act that allows states to deny
assistance to new comers. Does that change the analysis? YES this
changes the calculus for dormant commerce cause purposes. Dormant
Commerce Clause no longer a barrier.
3. Congress always gets the last word on any dormancy commerce clause issues
it can preempt interstate regulation of state commerce (prohibit states from
discriminating against interstate commerce) or can consent to state
regulation of interstate commerce that the Ct may find violates the dormant

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commerce clause. This means congress can override the courts constitutional
decisions on the dormant cause.
West Lynn Creamery v. Healy (1994)
FactsMassachusetts Commissioner of Food and was a Massachusetts milk
dealer with 95% of the milk it purchases from out of state farmers. In response to
Mass farmers losing market share to lower cost producers from outside, Mass
enacted a pricing order it required every dealer in Mass. to make monthly premium
payments based on the amount of milk sales, into a fund. The fund then distributed
the $$ to local dairy farmers proportionate to their contribution into the states
production of raw milk.
State Arg A non discriminatory tax is acceptable and a state subsidy to state-run
businesses is also unobjectionable under the dormant clause. (the Sup Ct says the 2
acts together are discriminatory!)
Issuewhether the pricing order unconstitutionally discriminates against interstate
commerce.
Rule
o When a non-discriminatory tax is coupled with a subsidy to one of the
groups hurt by the tax, a states political process can no longer be
relied upon to prevent legislative abuse, b/c one of the instate interests
which would otherwise lobby against the tax has been mollified by the
subsidy.
Scalias Concurrence there are 4 possible devices that would enable a state to
produce the economic effect that Mass. Has produced here:
1. A discriminatory tax upon the industry, imposing a higher liability on out
of state members than on their in state competitors.
This is unconstitutional under the commerce clause
2. A tax upon the industry that is non-discriminatory in its assessment, but
that has an exemption for in-state members
No different than the first one
3. A non-discriminatory tax upon the industry, the revenues from which are
placed into a segregated fund, which fund is dispersed as rebates to instate
members of the industry
4. A subsidy for the instate members of the industry, funded from the states
general revenues.
Scalia thinks this is acceptable
Is the actual impact of 4 any different from the other 3? Would an out of state milk
producer be any happier with 4 than with the other ones? No; but Scalia says people
will notice the economic impact more and the democratic process will work it out
he uses a democratic and unity value.
C & A Carbone v. Clarkstown (1994)
FactsClarkstown passed an ordinance that solid waste be processed at a
designated local transfer station before leaving the city. One company was conferred

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a benefit of $81 per ton, tipping fee, a cost higher than the market and a guaranteed
waste flow. Carbone began shipping its solid waste out of state to save costs.
Without the ordinance, Carbone would have shipped the non-recyclable materials to
out of state destinations at a lower cost than the fee the transfer station charged.
This case illustrates the difficulty in the first step of classifying the statute and
figuring out which branch applies.
Majority
Rule
Discrimination based on geography, even local geography (in state locality
against in state locality; or in state locality against out of state locality), will
trigger the per se rule of overtly discriminatory statutes. The fact that the state
can argue that other state interests are being hurt as well will not get you out
of the per se rule.
Reconfirmed the Milk Dean case = overt discrimination in terms of dormant
commerce clause
Single, local, actor still based on geography!
Analysis of the 3 Values:
National UnityIn terms of the National Unity value this statute probably
wouldnt trouble you it is a pretty benign issue, waste is a tough issue that
has to be taken care of
Democratic Valueask yourself who the harmed parties are. The one who
sues is another Clarkston resident; most injured parties are the ones who have
control over the Clarkston political process.
Free Trade ValueThe Dissent applies this value to the case.

United Haulers v. Oneida-Herkimer (distinguished from Clarkstown)

Waste treatment plant owned by the local govt not a private business. States and localities
can enact laws favoring themselves, govt as opposed to favoring private economic
interests.
Dormant commerce clause not concerned with governmental measures favoring govt
Exxon Corp. v. Governor of Maryland Facially Neutral
Factsa Maryland statute provides that a producer or refiner of petroleum products
may not operate any retail service station within the stateall the gas sold by Exxon
in Maryland is transported into the state from refineries located elsewhere. Although
Exxon sells the bulk of this gas to wholesalers and independent retailers, it also sells
directly to consumers through 36 company operated stations.
The statute is facially neutral all of the negative impact falls on out of state actors
Evidence that the statute you are challenging hurts in state consumers; if you were
the oil company would you introduce this? Yes, because if the Court sees that this
will have an impact only on the instate voters in a negative way, so that they will
serve as a check on protectionist policies, then the court may not see the need to get
involved (CJ Stone in Barnwell)
The Court didnt analyze what the states legitimate interest; because it first found
that there was not a significant impact on interstate commerce so there was no
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dormant commerce clause problem. No discrimination and no significant impact on

interstate commerce, so the case doesnt even pass the facially neutral w/ substantial
impact threshold.
Is the Court talking about discrimination with respect to the oil? No; it is talking
about the retail market and that the impact is 100% out of state; but the Court gets
around this because it says the statute is facially neutral.
The statute does not discriminate against interstate goods nor does it favor local
producers and refiners. Since Marylands entire gasoline supply flows in interstate
commerce and since there are no local producers or refiners, such claims of disparate
treatment between interstate and local commerce would be meritless.
Hunt v. Washington State Advertising Commission Facially Neutral
Facts the statute at issue burdens only out of state producers by either barring the
movement of Washington Apples or increasing the cost. It would also deprive out of
state growers competitive advantage
Justification for the statute protect NC consumers from Appling Fraud.
The statute passed step 1 because it was a legitimate state interest
(consumer protection) and facially neutral.
It failed on step 2 the Court found that there was no rationality for the statute and
that there were other alternatives that could have been used. Impact discriminated
out of state apple growers, specifically Washington. All of the burden is placed on
out of state actors, not in state. The N.C. statute fails.
Ct: questions connection between the means and ends b/c in N.C. can have no grades
at all. The only people who see the big apples crates are the wholesalers, not the
individual consumers. There are also nondiscriminatory alternatives to get at the
goals.
Distinguish this from Exxon (where both statutes burden 100% out of state actors)
The Exxon statute wasnt going to alter the % of out of state oil coming
into Maryland b/c there wasnt any refineries in Md; but the NC statute
would change the market in state b/c they were producing apples.]
Free Trade; does this account for the different treatment? No, b/c the NC
statute deals more with commerce than the other one.
National Unity value? The Court was on to the fact that the NC statute was
protectionist.
Under this value you would probably be more skeptical of a statute
burdening one state entity (Washington Apples) rather than an
international company like Exxon.
MD (upheld)

NC (invalid)

Benefits
In-state
retailers 95%
Out of state
retailers 5%
All state apple

Burdens
Out of state
(refiners/producers)
100%
Out of state only

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growers except
Washington
What % benefit
is going in
state? Less
than 95%

100% to
Washington state
growers. Their %
of the market is
probably not as
high as the out of
state retailers in the
MD statute.

Kassel v. Consolidated Freightways Facially Neutral

Iowa law that bans 65 ft double trucks interstate trucking company sues. Ct strikes
the ban down b/c the law fails the balancing test.
Analysis:
1. Legitimate State Interest (Yes). The purported state interest was highway
safety
2. Means/Ends Rationality - the state didnt provide persuasive evidence that
these trucks were less safe than smaller ones. Balance of local benefit does
not outweigh the burden on interstate commerce.
3. Exemptions existed for localities, which made it protectionist.
Std. of Review applied here they say the standard of review should be rational
because the Ct. should show deference to safety but they actually show a heightened
scrutiny and accept the challengers view over the states
Rulein terms of safety, the ct. will give deference in steps 2 and 3 EXCEPT
when in-state actors are exempt from the burdens then the Ct. will use
heightened scrutiny.
Where the state imposes an economic burden but the state exempts in-state
actors, the Ct will not afford the state legislative deference that it would do
typically. [there is no reason to believe that the political process will be a reliable
safeguard if the in-state actors are exempt or excused from the burden]
A1. Market Participant Doctrine Exception to the Dormant Commerce Clause
it distinguishes situations where the state/municipality acts as a sovereign/regulator
from where it is acting as a market participant (entering into consensual economic
relationships)
If it acts like a regulator then dormant commerce clause applies but if it acts as a
market participant then the doctrine does not apply.
Why has the Court drawn this distinction? Two Theories:
when the state acts as a market participant, it should be able to favor
citizens the way dormant commerce clause allows it to spend its own tax $
$ on its citizens
Dormant commerce clause doesnt restrict the way private parties do
business so it shouldnt block states from doing the same.

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 If statute says all businesses in NY must purchase their supplies from NY business =
regulation
Agencies of the state of NY must purchase from NY businesses = market
participation
If NY passes a statute saying that NY newspapers can only be printed by NY
companies, what is it? Regulation, because the state is compelling private parties to
limit their business to in state business partners.
What could NY do? Require all state agencies to purchase paper from NY
state companies. Now it is acting as a market participant.
Hughes v. Alexandria
This case invents the Market Participant Doctrine. Bounties for abandoned cars with
the hope that it would incentivize private companies to remove abandoned cars. The
statute made it easier for in-state companies than out of state companies. Ct: MD was
a participant in the market.
Comes out around the same time as National League of Cities. Is it surprising that
these cases were decided at the same time?
o No. This was during the Federalism wars, so the same Court that expanded
the 10th Amendment protection to states is the same one that added an
exception to the dormant commerce clause, giving the states more power
in both decisions the majority was the states rights group.
If the dormant commerce clause applied in this case, then the statute would lose, but
the Court rejected the claim by drawing the market participant distinction
Reeves v. Stake Four Years after Hughes
FactsSouth Dakota had a cement factory and had a statute that said if there was
ever a shortage of cement then the factory had to prefer in state purchasers vs. out of
state purchasers
The Court upheld the statute. IF dormant commerce clause applies = discrimination
(based on geography) But, the state was a participant so the dormant commerce
clause does not apply.
White v. Massachusetts How to tell the difference between Market Participation and
Market Regulation
Facts Mayor of Boston made an executive order saying any contractor under
contract with the city of Boston has to agree to hire 50% Boston residents on these
jobs as construction workers
What is the analysis? Dormant Clause
o Is there facial/overt discrimination?
Yes, because pursuant to Carbone, any local law hurting other in
state residents will be overt. So it gets strict scrutiny.
o the statute will fail
o will fail the balance also
o The Cities only chance is to argue that it is a market participant

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The problem is that the city is not in a direct relationship with the
workers, so in effect it is telling its contractual partner how to
organize its business with third parties.
The Supreme Court, however, held for the city saying that the
analysis would be case by case paying attention to the specific
facts the Court placed the executive order in the market
participant side
The pivotal issue here is whether what the mayor did was market participation or
regulation. The city isnt in a direct relationship with the workers, so what they are
doing is telling its contractual partner how to organize their business with third
parties so the Ct would be seen as an effort to regulate the business relations.
The SC held for the city and said that market participation will be determined on a
case by case basis and the Court said that in this case, everyone involved was
working for the city which placed them in the market participation side.

South Central Timber

FactsThe court begins to put the breaks on the Market Participant doctrine.
Alaska had a statute that said entities that take timber for state land and enter into
contracts with the state, those contracts provide that those companies have to take the
timber to Alaska processors before they can take the wood out of the state. The
court held that this is REGULATION and thus the statute failed.
Ruleimpose burdens on commerce within the market in which it is a
participant, but to go no further. The state may not impose conditions that
have substantial regulatory impact outside that market they are participating
in. (State cannot dictate the behavior of the purchaser after the relationship is
complete)
In South Central, the S.CT, says that the market Alaska was participating in was the
market for raw timber and not for processing it. They couldnt attempt to control the
actions of its contractual partners (the buyers of the timber) once the sale was done
with.
Can White be distinguished from South Central Timber?
o One distinction is that the restriction in White would only last during the
duration of the relationship between the Both of Boston and the
contractors. In South Central timber, Alaska was trying to protect its
interest and impose a restriction past the contractual transactions.
EXAMPLE:
Suppose NYC adopts a living wage ordinance and the ordinance says that any company
that wants to do business with NYC, they have to demonstrate that they are going to pay
their workers living wage. Is this okay?
If the provision required the business in any work that they did to pay a living
wage, those businesses could say that this is an effort to reach beyond a
contractual relationship and impose a regulation of things that have nothing to do
with the city, it is outside of the city market. (South Central argument).
Hypotheticals
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See TWEN for NY statute that dealt with this subs c and e the part with people
working on the citys K directly is on the White side and therefore ok. However, the
second part may be more market regulation than participation, but it is participation
because it doesnt impose a regulatory burden outside of the contractual relationship
even if out of the city, they are still working for the city on its K.
2. Enact a statute providing that solid waste may not be brought into NJ from out of state
unless the waste has been pre-processed to remove any toxic material. (NJ law imposes
no such condition on the disposal of garbage created in the state)
It is overtly discriminatory. Even though it doesnt bar waste from out of state, it still
treats it differently, so it is discriminatory; so it fails and also it is not a market
participant
3. once the state acquires the facilities, they are now market participants.
4. the question would be the white south central distinction. Does it have a down stream
effect? It is Market regulation and will fail because it wont pass strict scrutiny (it is
overt discrimination)
5. This is fine congress can authorize/prohibit states from regulating interstate
commerce
B. Article IV Privileges and Immunities Clause
US Const Art IV
Sec. 1: Full Faith and Credit
Sec. 2:
cl. 1: Privileges and Immunities
cl. 2: Intersatte Extradition
Sec. 3:
cl.: New States
cl. 2: Territories
U.S. Const., Amdt. IV, 2 (does not create any substantive rights its own rights)
The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the Several States
(non-discrimination principle in favor of out of state citizens. Imposes limits on state and
local governments)
U.S. Const., Amdt. XIV, 1
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States

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 U.S. Const., Amdt. IV, 2:This is a constitutional limitation on state and local govs
from discriminating against out of state citizens.
Distinctions between 14th A P&I and Article IV P&I
o What did the framers want to achieve with 14th A P&I? make the bill of
rights applicable to the states and have them enforced against the states,
but the Slaughter House Cases confined it to a small set of rights of priv.
and imun. That had to do with nats citizenship travel from state to state,
choose your state of residence, etc. The point of the 14th A P&I was to set
a national baseline of rights that citizens could enforce against their state
or any other state.
o Article IV P&I the current view is that it protects priv. and imun. Of
state citizenship not national citizenship the only thing that it does is to
prohibit states from discriminating against citizens of other states with
respect to priv. and imun., whatever those are deemed to be. It does not
create substantive rights it basically says that they dont have to have
any rights, as long as they are treated equal.
Who can be a Plaintiff in an Article IV P&I Case (who gets the protection)?
o You have to be a US citizen of ANOTHER state
o You must be a real person (not a corporation)
o It is only concerned with state discrimination against out of state citizens
according to this clause, the state can do whatever it wants to in state
citizens
o Cant sue your OWN state.
Market Participant does not apply to P&I because it is a judge made limitation on
state regulation so they can make exceptions to it and by contrast, P&I is an express
constitutional prohibition to promote national unity and therefore the Court cant
make exceptions to a constitutional protection.
Current Article IV P&I Analysis
Local/State Law
1. Has the state or subdivision discriminated against a U.S. citizen of another state?
Discrimination on an account of state citizenship against out of state citizen.
Local discrimination counts. Also, the Carbone rule applies here too it is
discrimination if a locality discriminates against in state citizens not in that
locality. Local discrimination counts as state discrimination. Locality =
discrimination on account of state citizenship.
2. If so, did the state discriminate with respect to a fundamental interest for Art 4
purposes? (Is it an Art. 4 privileges and immunities)?
What counts as an Article IV Privilege and Immunity?
o Sufficiently fundamental to the promotion of interstate harmony
o Bears on the nation as a single entity

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the fundamental interest refers to fundamental to national unity. There is

no definitive list so the only way to get at it is to look at what the court has
already done.
Look at what the court has done, b/c they do not lay out interests.
Economic interest interests in livelihood, the right to protect business on
equal terms/levels with locals, employment in common trades, bar
membership, the practice of law, the right to seek medical services from
private medical provider and by extension, other professional services
THESE ARE ALL PROTECTED BY ART 4. (pattern economic
interests)
NOT COVERED Recreational hunting and fishing.
What kinds of interests are protected by Article 4 P&I?
o Some of the same kinds of interest as are protected by dormant
commerce clause
o The right to engage in a profession
o The right to seek professional services in another state
o Look up the other ones

If the answer to 1 and 2 is NO then there is no violation and the analysis is done.
If the answer to 1 and 2 is YES (continue down the analysis)
Then the analysis: this would be something like intermediate scrutiny
3. Does the state have a substantial reason for the discrimination beyond the fact
that the disadvantaged parties are out of staters.
IF IT DOES
4. Then there must be a Close relationship btw discrimination and substantial
reason - peculiar source of the evil that the statute is meant to cure. 3 and 4
are pretty much intermediate scrutiny.
[Out of staters must be peculiar source of evil that the state means to address]
HYPO
Analyze whether the discrimination btw CUNY in state tuition and out of state
tuition violates the dormant commerce clause and the P&I clause.
Violation of Dormant Commerce Clause
1. Overt
o local and based on geography
Strictest scrutiny
State/ local must prove
1. neutral non-protectionist state purpose

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2.

o There is an attempt to protect local business or provide an advantage to

local economic actors at the expense of out-of-state economic actors.
To protect The fact that they are burdened does not pose an
advantage to us.
The point is for tax payers to not have to pay for out of state
residents.
AND
no less restriction/ burdensome discrimination

Market Participation v. Regulator?

This is an operations having to do with the purchase and sales of education and they are
selling education at a lower price (subsidy) could be market participation.
o Because this is market participation it would be an exception to the
dormant clause and thus the dormant clause does NOT applyso
now we have to do P&I to try and get it to fail.
P&I analysis
1. discrimination on out of state citizen = yes
2. economic interest
3. must prove substantial reason. arg: state subsidized law school, tax payers
would not be willing to do this if the benefits were transferred out of state,
thus out of staters get higher tuition.
4. close relationship: Out of staters must be peculiar source of evil that the
state means to address
States can reserve certain goods for its own citizens voting, higher education, state
hospitals and welfare.
Differences btw Art. 4 P&I and the Dormant Commerce Clause
o Market participant exception does not apply to P&I, it only applies to dormant
commence clause b/c it is implied legislation. The court created it, so then they
can create the exceptions.
o By contrast PI is an express constitutional provision, so b/c it is express the court
and congress cant create exceptions to it.
o Unlike the dormant commerce clause where congress can override the decision of
the court, congress cannot create exceptions that override P&I or article 4.
o s in art 4 cases MUST be US citizens and can only sue another state. Art 4 does
NOT protect against your own state.
If you want to bring an article 4 claim, you can bring it against the locality (Camden), if
you want to bring it against the state you must bring an Ex Part Young suit.
3 Constitutional Doctrines Limiting State/ Local Authority to Discriminate against out-of state Interests

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Dormant Comm Cl
but:
mkt particip exception
Cong can override

- strictest review (if overt discrim)

Art IV P&I
- intermediate-type scrutiny
- no mkt particp exception or
congl override
but:
limited plaintiffs (USC, o-s)
limited protected interests
14 A Eq Prot
- applies to all plaintiffs/interests
- no mkt partic exc or cong'l override
but:
only rationality review
(unless fundl rt implicated)

C. Preemption
US Constitution, Art. VI, cl. 2 (Supremacy Clause)
The constitution and the Laws of the US which shall be made in Pursuance thereofshall
be supreme Law of the land; and the Judges in every state shall be bound thereby; and
Thing in the Constitution or Laws of nay State notwithstanding.
Constitutional basis for preemption: Art. VI Supremacy clause.
What is the Constitutional basis for it? Article VI Supremacy Clause Federal Law
trumps any inconsistent state laws; i.e. if a state law was in conflict with 1st A, the
state law will fail.
the question in many cases is whether federal regulation in an area preempts state
tort remedies and
there are different alignments of judges on these cases; why?
o Strong preemption (liberals like conservatives dont) also results in more
laisez faire market (conservatives like; liberals dont) and the other way
around
Given the broad applicability of pre-emption, the way the S.Ct administers it can
have an effect on state and national balance of powers.
3 kinds of Pre-Emption
1) Express
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 Where congress, within the statue, says there are pre-empting the state.
Exp: this act supersedes any state law that relates to
2) Implied
a. Conflict
The terms of the fed law or in conflict with some state
policy/law.
o Dual compliance is possible
o there are not many cases that find preemption where
dual compliance is impossible
o Objective
o Where the state law is an obstacle to or frustrates
the federal objective then it will be preempted
b. Field Pre-emption
The court will infer from comprehensive or pervasive
[something] that congress meant to occupy. If the court infers
pre-emption of the field, then all state regulation within that
field is PROHIBITED.
The court is inferring from the pervasiveness.
Two questions:
1. What field did congress occupy? What is the scope of
the field?
2. Does the state regulate within that field? Does the
challenged state law infringe on that field?
General Principles for Preemption
1. Preemption is disfavored Court says it is reluctant to apply preemption
a. Why would the Court adopt such a stance? By saying it is disfavored, the
Court is narrowing the scope of their judicial review so it is a federalism
issue. Also, states are to retain the power that the Constitution doesnt
give to Feds, so the Court cant have a vigorous preemption doctrine
b. State laws that fall within an area of traditional state concern in these
circumstances the Court is very reluctant to have Federal statutes override
these.
c. Note: this doctrine comes down to Congressional intent; with implied the
court is inferring an intent to occupy the field, and the same with conflict
preemption.
2. The Court will very readily find preemption in areas that are peculiarly National;
where the Constitution gives Congress the authority to act in that area; i.e. in
terms of immigration policy.
a. Preemption will be a lead argument in trying to stop states from regulating
against immigration.
Pacific Gas & Electric Co. v. State energy Resources Conservation & Development
Commn
If you were arguing for preemption, how would you want to define the field?
If arguing for it you want to define the field as broadly as possible.
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 The Court defined the field more narrowly as nuclear safety rather than energy
probably for federalism reasons
Second Q did the moratorium operate within the preempted field? According to
pacific gas, how does the Court decide that?
a. If theres a moratorium on new nuclear plants how would you know if that
was a safety measure or an economic one?
1. look at the states purpose/goal to answer question 2 NOT at
the real impact on the federal policy
2. the court upheld the moratorium on the basis that the state had an
economic purpose and not safety.
3. the same exact moratorium would have been struck down if the
Court found that the states purpose was safety.
Silkwood v. Kerr-McGee
This was 1 year after Pacific Gas
Issueare the punitive damages preempted?
RuleThree Step Process for Field Preemption:
1. is there field preemption? Yes
2. Define the scope of the field (what field did Congress occupy?) nuclear
safety
3. what is the purpose of a punitive damage award (did the state act within the
preempted field; look at state purpose)? To regulate the behavior in ways that
regulate safety this was the argument by Kerr Mcgee and if this is accepted
by the Court then the punitive damages are within the preempted zone.
The majority found that punitive damages were not preempted why? Based only
on Congressional intent based on legislative history, Congress did not intend to
displace traditional tort remedies.
Court says that field preemption wouldnt be a basis for stopping tort damages;
conflict would though.
The Court was uncomfortable with finding implied preemption against tort remedies.
They were looking for more evidence that that was what was intended.
Congress can always step in and make its intent clear (similar to the dormant
commerce clause).

V. Distribution & Separation of National Power

This section deals with the vertical separation of powers between the three co-equal
branches
There are two main approaches to Separation of Powers Cases:
o Formalism assumes that legislative and executive powers are easily
distinguishable categories and that each branch should be confined to its
respective sphere. Basically, the power resides exclusively more or less
with each branch. You wouldnt like a mixing of powers. You would also

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tend to favor a strong unitary executive (any function that looks like,
smells like, walks like an executive function is under the executive)
o Functionalist there wont always be clear lines between the branches
and its not useful to think about the powers without any overlap. You ask
whether the actions of one branch interfere with the core functions of
another branch. You accept that the branches are interdependent and that
their powers would overlap.
An example would be that the Executive is the Commander in
Chief of the Armed Forces, but Article I vests the power to declare
war in Congress as well as the power to raise and support the army,
etc. There is also the Necessary and Proper Clause. So basically,
they can make rules for maintaining the army.
Separation of powers approach to separation of powers corresponds with a formalist
approach
Checks and balances approach to separation of powers corresponds to functionalist
approach
A. Executive Power
Where does executive power come from? Art II Sec. 1 called: The Vesting
Clause
Ways to look at the extent of Executive Power:
o NarrowHis powers are only those that are listed in Article II and
nothing else. The argument is that even obvious roles such as being the
head of state are listed in Article II.
o BroadHis powers extend beyond those listed in Article II. For
example, Article I Sec. 1, when listing the powers of congress refers to
them as the powers herein granted meaning those granted by the
Constitution (enumerated specifically in the Constitution). That language
is absent in Article II, there is not herein granted.
NOTE The Court has rejected the idea that he has a generic
overriding power
Commander and chief of the armed forces. Constitution has made the president
the commander and chief of the armed forces. Why? To put the military forces under
civilian control and protect the nation from undue power from the military. For
Congress, the constitution provides that Congress declares war, raise and support
armies, provide for a navy, etc. (Art I, Sec. 8). Congress has an enormous role in this
area.
Take Care Clause Executive has the power to take care that the laws are
faithfully executed
o Nixon argued that the Take Care Clause gave him the authority to refuse to
spend certain federal programs the Congress authorized.
o Scalia in Printz says this clause gives President exclusive authority to
make sure the laws are carried out

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o Presidents have frequently cited this clause in favor of broad

interpretations of executive power
o It imposes a duty and draws a line between the discretion that comes along
with executing laws and the policy making discretion on the other that is
more legislative
o In Youngstown Black says that it is not a discretionary power but more of
a mandatory duty
o Narrow reading of the Clause: its phrased as a mandatory duty to
implement legislation he shall opposed to he may
Hypothetical
Did Clinton have the authority to go against the Militarys anti-gay policy and issue the
executive order of Dont ask Dont Tell?
Under commander and chief he could implement the policy
Congress had the power to undo the policy under Art I, Sec. 8 To make rules for the
government and regulation of the land and naval forces (Art I, Sec. 8).
A formalist approach would be no, because Congress has the power to maintain and
regulate the army
Functionalist Clinton as commander in chief could prescribe rules of general
applicability for the army
It is accepted that Congress could have overridden this order pursuant to its powers,
by statute
This is an example of Congressional power to regulate the army overlaps with the
executive commander function; this obviously happens in other areas too.
Youngstown Sheet and Tube Co. v. Sawyer one of the most important precedents
Facts This arrived after WWII where the belief was that the biggest threat to us
were nations that had a concentrated trust of executive power (totalitarian). Truman
sends US troops/police power into Korea without congressional authorization;
Republicans get back into Congress and start to scale back on the New Deal
Legislation. Steelworkers threaten to strike which could have closed down the steel
industry and undermine the war effort.
In April 1952, President Truman ordered seizure of the nation's steel mills in order to
forestall a strike which, he claimed, would have seriously harmed the nation during
the Korean conflict. Although there was a law on the books, the Taft-Hartley Act
(requires workers to stay on the job based on prior conditions), which gave the
president the power to impose an eighty-day "cooling off" period when a strike was
threatened, Truman refused to use that law, since he had opposed its passage in the
first place. He also chose not to ask Congress for special legislation. Instead, he
chose to take control over the companies under his emergency war powers as
commander-in-chief.
o Arguments for presidential power:
- Commander-in-chief Clause

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- Vesting Clause
- Take Care Clause
- Inherent/Emergency Powers
o The steel companies did not deny that the government could take over
their property in emergencies. Rather, they claimed that the wrong branch
of the government had proceeded against them; in essence, they sued the
president on behalf of Congress on the basis that the presidential action
had violated the constitutional doctrine of separation of powers. Six
members of the Court agreed, and Justice Hugo Black's majority opinion
made a strong case for requiring the president, even in wartime, to abide
by established rules.
Justice Blacks Analysis:
o If pres has the power to seize the steel mills it either has to come from
statute or from article II. He concludes that he doesnt have statutory
authority in this case. He addresses three sources of Article II power one
by one:
Commander in Chief Argument He distinguishes between true
management of a war and other kind of activities that have some
relation to a war but where the power resides elsewhere. Even
when there is a fear of war the executive does not have certain
powers; so if the opposite approach were taken, any act could be
seen as related to war
Take Care Clause He rejects the idea that this gives pres any
policy making power. Congress makes the law, president carries
out the laws.
Vesting Clause A power to seize property is in essence a
legislative power its a policymaking role; Congress has that
power and therefore president cannot impede on that.
o Blacks opinion is seen as formalist. One weakness to this is that powers
can overlap. Black also recognizes that Congress could give the power to
seize property to the president; is that consistent with his theory? Yes,
because Congress would be making the policy and the President would be
carrying it out. Congress can delegate power to the president but it has to
be accompanied by intelligible principles (instructions on how to use the
power)
If you were trying to come up with a rule for presidential power what would you
make of what Black says about the Necessary and Proper Clause and Congress
having the power necessary to legislate in order for the other branches to carry out its
powers?
o Congress, at least in any case of an implied or inherent power, the N & P
Clause gave Congress authority to define ancillary powers necessary for
the president to carry out Article II powers. At the very least, this would
mean that where there is a conflict between a power the president says is
inherent and a duly enacted statute by Congress, then the statute prevails
under the N & P Clause. The N&P Clause gives Congress the power to
make laws for carrying into execution the foregoing powers and all
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other powers vested by this Constitution in the government of the United

States, or in any department or officer thereof.
Justice Frankfurter
o If president has been doing something for years then it becomes a gloss
over Art II. Inaction by Congress can change the constitution.
Justice Jacksons Analysis:
o This is the most cited opinion from the case. He took a functionalist
approach. To the extent that there is an overlap, then Congress wins.
o Jacksons Three Categories: (categories tell Ct what level of scrutiny to
apply to presidents assertion of power.)
Category 1 - President acts pursuant to Congressional
authorization. (congressional power constitutionally delegated to
the president plus Art II power - any independent power under
Article II). Broad judicial deference
Category 2 - President acts absent Congressional authorization or
disapproval. (Article II power only. What role Congressional
inertia? It may influence the way Cts interpret the outer
boundaries of Article II powers. So they may take a broader view
in the case of a crisis and congressional inaction)
Category 3 - President acts contrary to express/implied
congressional intent. (Article II power minus any congressional
power to disapprove). He puts this case into category 3 because of
the Taft Hartley Act. Congress has legislated in this area and
Jackson says that omission of presidents power to seize an
industry is Congress disapproval of presidents ability to exercise
such a power.
o Executive Argument - He uses a narrow interpretation of executive power
because there is an enumeration of power in Article II, so he therefore
doesnt have a generic power.
o Commander in Chief narrow interpretation along the lines of Black.
President doesnt have a monopoly over the war power because Congress
has many powers in this area that limit executive power in this area. The
Constitution doesnt make the President Commander in Chief of the
Nation.
o Take Care Clause - rejects the idea of emergencies expanding executive
power. Doesnt authorize the president to invade individual rights (5th
Amend)
o Broader argument: Ct shouldnt create a broad power b/c then pres could
abuse the power
Justice Douglas Analysis Congress has the power to pay compensation for a
seizure therefore is only one able to authorize a seizure or make lawful one that the
president has effected.
Justice Vinsons Dissent they argue for an expanded view of the presidents war
powers. Uses President Lincolns action at the beginning of the Civil War as an
example. He seizes the rail lines, suspended habeas corpus, ordered blockade of the

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southern ports all without congressional authorization. Dissent says Trumans acts
comparable because acted pending congressional action (like Lincoln). Loffredo:
distinctions: half the country in enemy hands, civil war approaching, etc.
All except for Black take a functional approach and with respect to inherent
presidential power, Congress can override.
They also recognize that there is some inherent executive power but again, it can be
overridden. The Court was not convinced that here Congress silence gave the
president more power.
Dames and Moore v. Regan
FactsIran Hostage crises Lawsuits pending against Iran in US courts are to be
cancelled and sent too an arbitration tribunal this was the agreement btw Iran and
the US for the release of US hostages. Congress did not give the president any
power to cancel lawsuits. Dames and Moore had a contract pending against Iran in
the US court, for services that were being given to Iran. The action was cancelled on
Reagans order.
Rehnquist doesnt follow Blacks analysis. Proposes to alter the 3 categories and
blends them into a continuum.
Does Rehnquist take the analysis whole sale and use the 3 categories; or does he alter
it? He blends them into a continuous spectrum from express congressional approval
of a presidents approval through
o What would have happened if he used one of the 3 categories? It would have
either been under 2 or 3. At best, it would have been under 2 and the Court
would have found that there was some constitutional/inherent executive power
to cancel the proceedings in a co-equal branch (the Court) and that would
have been a very disturbing holding; so the Court wanted to proceed more
gingerly.
Rule We cannot ignore the general tenor of Congress legislation in this area in
trying to determine whether the president is acting alone or at least with the
acceptance of Congress. Congress cannot anticipate and legislate with regard to
every possible action the president may find it necessary to take or every possible
situation in which he might act. Such failure of Congress specifically to delegate
authority does not,especiallyin the areas of foreign policy and national security,
imply congressional disapproval of action taken by the executive.
o when congress gives the president broad discretion, the court might infer a
congressional intent to act over related areas.
Is this consistent with Youngstown?
o Here, the Court comes to an opposite conclusion in terms of Congressional
silence
o In Youngstown, silence by Congress in the statute prevented the president
from doing something and in this case it only meant that there wasnt
congressional disapproval
o Youngstown analysis: Congress has legislated in the area (Taft Hartley Act)
and did not give the Pres authority to seize property. Where Congress acted in
some areas and not others, such silence indicates disapproval. In Youngstown

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there was an amendment (unlike in Dames and Moore) and in Youngstown the
govt had an alternative method to deal with the problem (the Taft Hartley Act)
and in Dames and Moore there was no alternative method although the
President could have gone to congress to make the request.
Rehnquist seems to be putting the action by the president here under category II
In Dames and Moore the executive order is upheld. Where did the authority for the
executive order come from?
o Category 2 congressional silence might be interpreted as an invitation for
the president to act b/c it is not expressly authorized or disapproved of.
o Article 2 powers may extend if congress is silent.
o Are there limits on the presidents power? Could Congress legislate in a way
that would limit the Presidents power? Yes the court allows the power in the
absence of congressional intent.
o Even though the Ct approved the presidents action it still seems based on
congressional intent
o Separation of powers: rejected the formalist approach set out by Black in
Youngstown.
Medellin v. Texas (2008)
FactsInternational treaty ratified by the Senate (congressional participation). Vienna
Convention on Consular Relations requires signatories to inform detained foreign
nationals of the right to request assistance from the consul of their states. Texas not
following the rules of the treaty. Bush issues memo instructing states to abide by the
Vienna convention. Sup Ct struck down the memo said it was beyond Press power.
Roberts: Category 3. Pres acting in conflict with Congress. Senate ratified a non-selfexecuting treaty will not have domestic affect unless approved by Congress they must
enact legislation putting the treaty into affect. President was unilaterally creating
domestic law, he acts in conflict with the understanding of the ratifying Senate.
B1. Foreign Affairs
Post 9/11 Executive Power Cases/Statutes
Hamdi v. Rumsfeld (2004)
Presidential power to order military detention
of U.S. Citizens deemed enemy combatants;
access to judicial review; due process.
Rasul v. Bush (2004)
Habeas corpus jurisdiction extends to U.S.
naval base in Guantanamo Bay, Cuba.
Detainee Treatment Act
(2005)

Purports to limit/remove fed habeas juris.

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Hamdan v. Rumsfeld (2006)

Bush-ordered military commissions illegal.

Mil. Commissions Act (2006)

fed habeas jurisdiction.

Authorizes mil. comms; purports to remove

Boumediene v. Bush (2008)

unconstitutional.

Mil. Comm. Act juris provision

Art. I, Sec. 9, cl. 2

The privilege of the Writ of Heabeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.
o Who can suspend the Writ? Congress not the President! (located in Art. I which
addresses Congress power)
Hamdi v. Rumsfeld
FactsThe govt was making some extraordinary claims for executive authority.
Before this case goes to S.Ct, the govt says the pres, when he wants to, can designate
a US citizen as an enemy combatant, seize them and hold them incommunicado, w/o
access to an attorney, w/o a criminal charge, and no access to fight their being held.
Hamdi has no right to contest his holding b/c he is labeled an enemy combatant.
Issue 1 - whether the US has authority to detain and classify citizens as enemy
combatants; does the president have the power to place US citizens in
confinement as enemy combatants
o OConnor (for the plurality): The president had the authority to hold Hamdi,
based on Congressional authorization by AUMF.
o BUTthe AUMF doesnt say anything about US citizens, but 18 USC
4001(a) does say that Congress can authorize detaining US Citizens. So how
does the plurality get from there to the AUMF?
o AUMF president can use all necessary force Necessary incident of
waging war is being able to capture combatants and remove them. Thus, part
of the AUMF authorization is taking enemies off the battlefield and making
sure they dont get back on the battlefield. Congress authorized the president
to detain US citizens that are deemed enemy combatants battlefield
combatants in Afghanistan.
o OConner wants the case decided narrowly and says that enemy combatants
only deals with those fighting in Afghanistan. [pg. 393, for purposes of this
case enemy combatant...part of hostile forces..in Afganistan..engaged in
armed conflict]
o The Ct does not talk about Art. II powers they dont reach it because they
found that Congress spoke on the issue. Don't have to talk about Art. II. Can
resolve the issue on statutory grounds. [following the same rule in
Youngstown: has congress spoken?] [and courts are going to decides cases
on non-constitutional grounds if possible]
o The Quirin case that the Court relied on US could detain its own citizens
(questionable precedent though Douglas memoirs)
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o How does the court distinguish Ex Part Milligan (famous civil war case, that
has the language of inappropriateness of using military courts as long as the
civilian courts are open and operating).
o The Court does not have to reach the issue whether the president can authorize
this they instead decide it on statutory grounds. So this is a very narrow
holding saying that Congress authorized detention of this very narrow group
of US citizens.
Issue 2 - if so, do US citizens have a right to judicial review to contest their
confinement and what procedures are attached to that review (what is the
nature of that review)? One separation issue is the role of the Courts and the
president in times of war; a second is that if the president holds someone
without review, that is in effect a suspension of the writ of habeas corpus which
Congress has the authority to do only
o The government took the position that Hamdi had no right to habeas petition
and they could hold him indefinitely; but right before this case got to the
Court they said that he could file a habeas petition and get a lawyer. Why this
change in position?
That was a very extreme position and there was no plausible argument
that Bush could suspend the writ over a period of years (it wasnt like
it was an immediate suspension in an emergency because this took
place over years). Unprecedented claim by the Pres that they have the
power to suspend Habeas Corpus it is understood that Congress is
the branch that has the power to suspend
OConner (for the plurality) turns the separation of powers argument
back on the govt saying that its argument would have its own
separation of powers problem by concentrating a lot of power in one
branch at the expense of other branches and here the court has
authority over individual rights and the govts position would take that
away.
o So, what rights does Hamdi get?
Gov argues that the Ct should not interfere during times of war.
Ct responds govts approach condenses power into a single branch of
govt. A state of war is not a blank check for the president when it
comes to the rights of the Nations citizens (quoting Youngstown).
Ct- strong language, but watered down results. A fairly pale version of
DP; and the Court leaves open the suggestion that a non-judicial
proceeding might satisfy the requirement. Lesser standard of proof is
permissible, including admission of hearsay. Burden of proof on the
petitioner (not the government).

Souter and Ginsburg Concur

o As to the first issue, they say NO; why?
He says there are two statutes - 4001(a) [No citizen shall be
imprisoned or otherwise detained by the US except pursuant to an Act
of Congress] which requires Congressional approval. Then, under

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the AUMF it is inapplicable here because Bush had not charged Hamdi
as a military criminal. Govt wasnt abiding by the laws of war and
therefore AUMF does not apply. Govt must prosecute in an Art III Ct.
Congress spoke and AUMF doesnt authorize detention, and no
detentions are allowed by acts of Congress under 4001(a).
Commander-in-chief argument doesnt hold b/c Congress can override
the Presidents Art. II power.
Souter and Ginsburg think that 4001 controls and Scalia and Stevens
dont think president has the authority
In terms of what process is due he says that Hamdi is entitled to
more process but he joins the opinion so that Souter can get some sort
of process
Scalia and Stevens Dissent
o Issue 1 if a US citizen is waging war against the US, then charge him with a
crime in the US. If the situation is so dire and exigent that they cannot do so,
then Congress can suspend the writ temporarily. AUMF does not purport to
suspend the Writ.
o He takes a textualist and very formalistic approach
o So, Souter said that Congress had spoken in a way that indicated disapproval
of executive detentions (4001). In contrast, Scalia says that even with
approval by Congress, the Constitution itself bans classifying citizens as
enemy combatants. It is political doctrine question for Congress, not the Cts
In terms of the power to detain the plurality (4) plus Thomas say there is power to
detain. Thomas, remember says that the president has this authority. In terms of
saying that Habeas review is due 8 minus Thomas say he is due some sort of
process but the process is very one-sided and not fair. Concurrence joins the
plurality to get a decision.
Hypothetical Concerning Jose Padilla
Youngstown Sheet and Tube (The Steel Seizure Case)
Analysis from concurring opinion of Justice Jackson
Category 1
President acts pursuant to congressional authorization.
(congressional power constitutionally delegated to Pres.
plus Article II power).
Category 2
President acts absent congressional auth'n or disapproval.
(Article II power only. What role congressional inertia?)
Category 3
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President acts contrary to express/implied cong'l intent.

(Article II power minus congressional power to disapprove)
Jose Padilla is a US citizen who is detained at the airport on his way back in the country,
the govt alleges that he has connections with Al Quaeda operatives overseas and that he
had agreed to explode a dirty bomb or in blowing up buildings in the US. He is
designated as an enemy combatant. American citizen detained on American soil. He files
a habeas petition and the case goes to the S.CT and they say wrong venue and that he
needs to file where he is jailed.
Framework for analyzing:
Did the president have authority to confine Padilla as an enemy combatant?
o First Question: Did Congress speak? What does congress have to say? Did they
authorize or prohibit the action?
o Next Question: (If, not in Art II) is there something in Article 2 that gives the
president authority to act the way he did?
o Last Question: suppose there is a conflict (if congress acts in a way that deprives
the pres action in the authority he asserts) which claim of authority trumps
which? Does Presidents Art II power prevail or Congress legislation under Art. I.
Argument for the President
o They would say that there is this legislation that was passed by congress
Authorization for the Use of US Military Force
o Isnt this different from Hamdi?
You would argue that the Hamdi court tried to make this necessary.
And you would use the same argument here, but say that Padilla is
essentially linked with Al Quaeda and came to blow up buildings,
thus the behavior is consistent with AUMF.
War on terror is no just taking place in Afghanistan. Battlefield is
undefined in this stage of the War on Terror. And there is some
evidence that Padilla was connected to Al Qaeda before arriving in
the US.
Ct in Hamdi was not speaking to broader applications of the
AUMF OConnor was speaking narrowly on a specific issue.
Here, the Ct can assess another specific issue Padillas situation.
o Art II powers commander-in-chief powers allows the executive to act.
Argument for Padilla
Question 1: Did Congress Speak:
Congress authorized president to detain enemy combatants through the AUMF
but in Afghanistan on the battlefield - NOT on American Soil off the battlefield.
Not a battlefield capture in Afghanistan.
OConnor defines the authority in Hamdi and defines military actions within
AUMF to only those on the battlefield in Afghanistan
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AUMF speaks to those in connection with 911 attacks. Here, no evidence that
Padilla is part of 911.
Stevens/Scalia will vote against detention of Padilla.
If AUMF doesnt authorize detainment
Padilla does not fit the narrow definition that was given in Hamdi.
o You would argue that the pres doesnt have the inherent article 2 power to detain
Padilla.
One line of analyses this is a Youngstown category 3 argument the govt cant
point to any other act, so they have to release the man. President acting contrary to
Congress.
Suppose the court finds that 4001(a) 2 wasnt applicable here, that it didnt apply to
military actions. Where does that leave the arguments?
o Govts Argument The Dames and Moore case congressional silence. If
4001(a) doesnt apply, then congress is silent. However, they do have the patriot
act, and you would want to compare that to
o Padillas Argument Cite Youngstown, a situation where congress is silent but
has the opportunity to speak.
o Patriot Act should be taken as Congressional disapproval of detention of US
citizens.
o 4001(a) only applies to criminal acts not military actions.
o Padilla Arg 4001(a) was a response to the internment camps/military
detentions and was established to prevent such detentions by the govt.

(Molly Notes)
Applying Youngstown / Dames & Moore / Hamdi to Padillas case
-First Question
Has Congress spoken?
o Authorized?
o Disapproved?
o Silent?
Three statutes to decide how Congress feels about it:
4001(a)
AUMF
o Foreign soil
US Patriot Act
o Like Dames & Moore?
Congress gives broad authority in area of
national defense, the Court might infer
congressional approval/acquiescence in pres.
exercising related authority especially if
theres been a history of president acting w/
congressional acquiescence
Padillas argument

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Govt argumentcant really rely on

Hamdi b/c Padilla was arrested on
US soil
o Like Youngstown?

o Unless youre in category 1, youre next question is

does Pres. have an Art. II power designating Padilla
as enemy combatant?
o What happens if Congress expressly disapproved of
Pres.s Art. II power?
How do you decided whether Pres. Art. II
power prevails or Congresss Art. I power?
Think about Youngstownnecessary
and proper clause (Black), Jacksons
category 3 conflict and scrutiny
Think about Dames & Moore:
conflict b/t congressional intent and
assertion of executive authority
How would the justices who voted in the Hamdi case come out in the Padilla at
each level of the analysis?
Padillas Argument
-AUMF authorizes Pres. to detain enemy-combatants
-But AUMF doesnt apply to Padilla b/c he wasnt picked up on the battlefield
This excludes him from the AUMF scope b/c of OConnors narrow definition of
the Pres.s authority
o The AUMF gives Pres. auth. to conduct military action in Afghanistan and
a necessary action in carrying that out is to detain enemy combatants
picked up on the battlefield
-Also congressional intent not to include US citizens to be detained by the passing of the
USA Patriot Act. The Act specifically says, non-citizens.
-Stevens/Scalia will vote against detention of Padilla based on their Hamdi opinion
-Souter: 4001(a)no citizen shall
-Youngstown analysis?
Category 3: congressional disapproval
Govt Argument
AUMF
-War on Terror doesnt take place just in Afghanistanbattlefield is undefined
-Hamdi wasnt speaking to this specific situationthat holding doesnt have to
necessarily apply hereCourt was deciding only what they had to decide before them
4001(a)
-Doesnt apply to this circumstancesnational security/wartimeonly ordinary criminal
acts
Patriot Act
-Dames & Moore: Congress didnt explicitly state that Pres. cant detain citizensleaves
hole for Pres. to act pursuant to Art. II commander-in-chief authority

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 Where theres been a hx of pres. action and history of cong. acquiescence

Category 3? Conflict b/t assertion of Art. I and II powers (4001(a))what happens?
Youngstown: Cong. wins
o But the govt would argue that this is an explicit Art. I commander-inchief authority.

Hamdan v. Rumsfeld
Facts:
It is alleged that between the years of 1996 and 2001 Hamdan was engaged in actions in
preparation of the September 11, 2001 attacks against the United States. Militia forces in
Afghanistan that were fighting the Taliban captured Hamdan and turned him over to the
U.S. Military in 2002. He was transferred to Guantanamo Bay. A United States occupied
Military base. After a year of being detained without any charges being brought against
him, President Bush declared that he had committed acts triable by a military
commission. He was charged with one count of conspiracy to commit offenses triable by
the commission. This commission is created by military necessity, not by statute or
constitutional power. This commission has a presiding officer and at least three other
members. The accused is afforded military counsel, and a copy of the charges against
him. This hearing may be conducted outside the presence of the accused for the accused
does not have a right to see all evidence or hear all witness statement against him for
purposes of national security. After being tried and convicted of conspiracy, Hamdan
apply for a writ of Habeas Corpus stating he deserved all the constitutional rights
afforded to him at trial, the writ was granted.
Arg:
President Bush asserting AUMF authority and Commander-in-Chief powers.
Issue:
Whether Hamdan committed a crime triable by military commissions and whether that
commission is constitutional.
Rule:
More like Youngstown analysis.
If there is a conflict between Congress authority under art. I and Pres under Art.
II there seems to be a presumption that Congress prevails UNLESS Congress does
not have Art I power or Congress is interfering with the CORE of Art II power.
Ex. President has the power to issue pardons, veto legislation, prez has power who
to nominate to the Supreme Ct all power Congress cannot interfere with.
Sup Ct will look skeptically at power that places concentrated authority in one set
of hands one branch. Executive is defining, executing and sitting in judgment =
all authority in one set of hands.
Holding/Reasoning:
Contrary to the UCMJ and Congress has already established policies.
Falls under category 3: Congress has spoken and the President is acting in
contrary to it. Like in Youngstown: where Congress delegates to the Pres under
certain conditions, the Ct reads that as congressional disapproval beyond those
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limited delegations (like the Taft Hartley Act in Youngstown). Congress, here,
authorized Pres to conduct military tribunals under the UCMJ. The Pres military
commissions were not consistent with the UCMJ procedures which requires
courts-marshal established by statute.
Violates the laws of war under the Geneva Convention - Common Art III. Judicial
guarantees. Bushs order fails to meet these guarantees. No Kangaroo Cts. There
needs to be regularly constituted Cts (pg. 390 sec. b)
The President at a time of war has the power to try and punish crimes against the
laws of nations. This is the constitutional provision used to show that military
commission tribunals are legal. However, this court feels that only certain
circumstances allow for offense to be triable in a military commission. Those
offenses are; 1 in place of civilian courts when marital law has been declared, 2
temporary military government in occupied territory or in lands where there is no
government to try cases, and 3 when the crime is an incident to the conduct of war
which violate the laws of war. The court states that only the 3rd type applies,
however the charge of conspiracy is not an incident to the conduct of war.
Incidents of war are accusations of actual conduct, not the attempt or planning of
such conduct. Inchoate criminal charges belong in a federal court or court martial
proceeding. Secondly this commission violates not only constitutional rights
afforded an individual, but also rules established by the Uniform Code of Military
Justice (UCMJ) and the Geneva Conventions. A military commission tribunal
must have rules and regulations that do not fall short of at least a military court
marshal proceeding. The lack of presence and ability to see the evidence and
witness before you is not constitutional. Therefore Hamdan should not be tried in
front of this commission. This court reversed the commissions charges of
conspiracy.
Concurrence:
The President does not have a blank check to try prisoners of war as he pleases. While
there is a large separation of powers issue here, Congress has specifically legislate the
UCMJ to prescribe the rules for such commissions to avoid these violations and we will
not disagree with it.
Does the Geneva Conventions ties Congress hands?
Conventions doesnt have the status of higher law, but statutory law
Conventions only applies if Congress wants it to. Its not a per se application.
Boumediene v. Bush (doesnt add to the general rule)
Detainee Treatment Act unconstitutionally restricted the writ of habeas corpus. The
limited the review in the US Ct of Appeals provided for in the Act was not an adequate
substitute for Habeas.
U.S v. Nixon: 3 principle legal issues
1. Justiciability
2. Presidential amenability to judicial process
3. Existence and csope of executive privledge

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