Con Law Notes

8/7/2019 Con Law Notes

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I. Helpful Hints for Reading Casesa. Textual

i. What do the words mean?1. "Words are the skins of living thoughts." - Justice Holmes

ii. What is the context?b. History

i. What were they thinking of at the time?ii. Original Intention

1. What did the Framers mean for this phrase or clause to do, or say.iii. Original Meaning

1. What's the commonly understood meaning at the time the Constitution waswritten?

iv. Vector's of History1. Should history be static or dynamic?2. Who's on the court?

c. Structurei. Particular principle or practical result is implicit because of structure of government.

ii. Fills in the gap for things not foreseen.iii. Doctrinal - precedent.

1. Weakest: Difficult for Supreme Court to correct itself.II. District of Columbia v Heller (2008)

a. Facts:i. Heller (policeman) applied for registration permit for handgun, and was refused.

ii. DC allows guns for personal use, but if in the home, they must be disassembled or havea trigger lock on them.

iii. Second Amendment: "A well-regulated Militia, being necessary to the security of a freeState, the right of the people to keep and bear Arms, shall not be infringed."

b. Majority:i. Claims right to self-defense in order to keep guns in home.

ii. City cannot preclude an individual from having access to a handgun.iii. The phrase to keep and bear arms, at the time of writing, meant to own weaponsindividually, not a collective right.iv. The 2nd, 3rd, and 4th Amendments read together regard personal rights and liberties

versus the government.1. Since the next two discuss personal rights, the 2nd Amendment probably also

applies to individual rights.c. Dissent:

i. 2nd Amendment does not say anything about self-defense, and the analysis from thisperspective gives rights that individuals do not hold.

ii. Phrase "bear Arms" is defined as to act as a soldier, so the right to bear arms applies tomilitias only.

iii. Self-defense in the home was not something that the Framers would have contemplatedwhen writing the Constitution, so a right to bear Arms for that purpose is unlikely.

d. Holding:i. Laws banning gunning ownership in Washington, D.C. infringes upon one's right to

bear Arms, and thus violates the 2nd Amendment.I. ALA Schechter Poultry Corp v United States (1935)

a. Commerce Clausei. Intra-State = State Issue

ii. Interstate = Federal issueb. National Recovery Act


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i. Legislature passes law to control monopolies, and a piece of it gives power to Presidentto pick and choose companies.

ii. The Code didn't set any limits/restrictions/standards to follow, and therefore gavePresident power similar to the power Congress holds.1. Power must be defined by Congress if they are going to delegate power to others.

II. Panama Refining Co V Ryan (1935)a. Executive Order by President prohibiting interstate and foreign commerce involving oil and

its products (on the basis of State law or regulation), and those products in storage facilities.b. "Hot Oil" = oil in excess of allowance from National Reserves

i. President's ability to restrict hot oil transportation did not leave any part of theprohibitions or standards to decide to the Congress (because there were no restrictions).Therefore, the part of the National Industrial Recovery Act that gives President powerto prohibit the transportation is unconstitutional.

III. Whitman v American Trucking, Assn., Inc. (2001)a. EPA designated to determine standards for pollutants through action by Congress.

i. Lower Court - EPA's interpretation, but not the statute itself, was unconstitutional.ii. Congress didn't set any restrictions for EPA, and therefore exceeded it's power.

b. Supreme Court: Reversed - Standards and regulations are clearly defined. They did not useeconomic considerations in defining the standards.

IV. INS v Chadha (1983)a. Legislative Veto

i. Presentment Clauses - All legislation has to be presented to the President before itbecomes law.1. Framers wanted President there to check powers and Congress, and make sure

laws passed are prudent and well-considered.2. Signing statements - Ability to sign, but reserves right to change mind.

ii. Bicameralism - Both houses must participate in legislative process.I. Special Counsel

a. Appointed by Committeesb. Differ from Independent Counsels

II. INS v Chadhaa. Presentment Clause:i. Every law must be given to President for signature or veto.

b. Discussion:i. Every use of legislative veto invalidated.

ii. Legislative veto intended for control over agencies.iii. Nothing in Constitution prohibits or authorizes legislative veto.

c. Violation of Separation of Power - 2 Ways:i. One branch may impermissibly interfere with a constitutionally designed function of

another branch. (Nixon)ii. One branch assumes a function that is entrusted to another. (Youngstown)

d. Bicameralism:i. Both Houses must approve a bill for it to become law.III. Administrative Power

a. Checksi. By statute.

1. Power by detail.2. Must be through bicameralism and presentment.

ii. Control of Money1. Congress controls budget of agencies, can influence actions through threats of

decreased budget.


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iii. Appointment/Removal1. Congress appoints/removes agency members.

IV. Morrison v Olsona. Who can remove the Independent Counsel?

i. Appointment Clause: Gives appointments of 'principle' officials to President. Givesappointments of 'inferior' officials to Congress (who can delegate to certain others).

1. Is there Constitutional power for the president to remove?a. No, but he can remove executive officials unless there is a statute dictating

how/why.i. EX: Cabinet Officials

b. Heads of Agencies, Federal Judgesi. No - Heads of Agencies are legislative officials, and federal judges

are judicial. Judges have life tenure under Article III - they can't goanywhere for most reason.

b. Dissent:i. Is Independent Counsel principle or inferior?

ii. Scalia says principle, because they are executing the laws and exercising executivepower.

V. Impeachment of Andrew Johnsona. Facts:

i. Johnson was Lincoln's VP, and became President upon Lincoln's assassination.ii. Congress passed Tenure Act of 1867 to prevent Johnson from removing Lincoln's

Cabinet, in order to undermine Reconstruction.iii. Johnson fired Stanton, and they tried to Impeach him (based almost entirely on the

removal).iv. Senate vote was 1 short of 2/3 necessary.v. Johnson finished his term.

b. Impeachment:i. Process:

1. House files articles of impeachments.2. Senate holds trial and investigation.3. Chief Justice is judge who oversees impeachment.

VI. Myers v United States (1926)VII. Humphrey's Executor v United States (1935)

a. Language of act did not allow removal by President.VIII. Wiener v United States (1958)

a. Appointed and Confirmed by Truman, then Ike wants to remove him.b. Ike can't remove him because independence from the President was desirable.

IX. Bowsher v Synar (1986)I. Morrison v Olson

a. Core executive function - President can remove.b. If quasi-judicial, or quasi-legislative - President can't remove.

I. Boumediene v Bush (2008)a. Facts:i. Petitioners are aliens designated as enemy combatants, detained on Guantanamo Bay

(non-American land, technically).ii. Habeas Corpus - Deprived of freedom, without charges, and no opportunity to defend

yourself, and writ requires custodian to prove authority to detain, and will releaseprisoner if none exists.

iii. Military Commissions Act denies federal courts jurisdiction to hear habeas corpusclaims.


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b. Government's Position:i. Aliens held outside the US are barred from habeas corpus petitions. Qualification as

enemy combatants denies them this.ii. Constitution stops where "de jure" sovereignty ends (actual, factual sovereignty).

1. Does Constitution have extraterritorial authority?iii. Uses Eisentrageras precedent:

1. Detainees held in German prisons post-WWII were held to military tribunalswith the writ of habeas corpus suspended.

2. Where captured and held in foreign territory, detainees have no right to habeascorpus.

3. Formally charged, received counsel, had a trial.4. Petitioners did not receive formal charges, counsel, or a trial.

1. Have "representative," but not a lawyer or counsel.2. Charges were lacking in this case.

5. Distinguished from Eisentragerbecause of lack of counsel and charge.c. Suspension Clause

i. In times of invasion, public safety, or rebellion, suspension of habeas corpus can beevoked by government.

ii. Three Factors for Reach of Clause:1. Citizenship status of detainee.2. Nature of where they are apprehended.3. Practical obstacles in determining right to writ.

d. Does MCA avoid Suspension Clause?i. Government has not established that detainees had access to resources available to

them under MCA (lawyer, etc.), so it circumvents Suspension Clause, and is anunconstitutional suspension of habeas corpus.

ii. Section 7 held to be unconstitutional.e. Dissent:

i. Writ of habeas corpus was never meant to cover aliens.II. Military Tribunals

a. Ex Parte QuirinI. Legislative Powera. Derives from:

i. Article I, Section 8 - Powers1. Clause 1 and 2: Tax, collect monies for defense, borrow money.2. Clause 3: Regulate commerce - with foreign nations, among the several states,

and with Indian tribes3. Clause 4: Regulate naturalization and bankruptcies.4. Clause 5: Coin money and fix standards of weights and measures.5. Clause 6: Punishment for counterfeiting6. Clause 7: Post offices and post roads7. Clause 8: Promote science and arts by patents8. Clause 9: Make lower federal courts9. Clause 10: Define and punish crimes on the sea, and international law

10. Clause 11: Declare war and make laws regarding capturea. Marque and Reprisal: Government supported pirates, basically.

11. Clause 12: Raise and support armya. Not for a term longer for 2 years.

12. Clause 13: Provide and maintain navy13. Clause 14: Rules governing armed forces14. Clause 15: Provide means for calling forth militia


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15. Clause 16: Provide for organizing and regulating militia (states appoint officersand train military according to Congress' rules)

16. Clause 17: Exercise laws over DC.17. Clause 18: Necessary and Proper clause.

ii. Article I, Section 9 - Limitations1. Clause 1: Importation of slaves not prohibited prior to 1808, taxed afterwards.2. Clause 2: Habeas Corpus, suspension limitations (public safety, rebellion,

invasion).3. Clause 3: No Bill of Attainder or ex post facto

In the context of the Constitution, a Bill of Attainder is meant to mean abill that has a negative effect on a single person or group (for example, afine or term of imprisonment). Originally, a Bill of Attainder sentenced anindividual to death, though this detail is no longer required to have anenactment be ruled a Bill of Attainder.

4. Clause 4: No tax unless based on census?5. Clause 5: No tax on exports from states.

a. Some states (FL) requires sales tax if there is a physical store you canpurchase the good from. If no physical store exists, no sales tax collected.

6. Clause 6: No preference to ports in one state over another; No duties on vesselsin between states.

7. Clause 7: No money from treasury without appropriations made by law; Accountof all receipts and expenses of public money.

8. Clause 8: No titles of nobility granted by US; No current officer shall accept suchtitle by others without Congressional Approval

iii. Article I, Section 10 - States Limitationsb. 10th Amendment

i. Powers not given to Congress, nor prohibited to States, by Constitution, belong to States.c. Troops to States

i. Federal government allowed in states only if invited.ii. Troops sent if state of emergency declared.

iii. Prohibited by Posse Comitatus Act, but Insurrection Act allows president to use troops ifhe cannot enforce laws via traditional judicial processes effectively because of unlawfulobstructions, as much as he deems necessary to do so.

II. McCulloch v Maryland (1819)a. Facts:

i. Federal Bank created, branched in a few states.ii. States unhappy because created a depression by calling in states' loans.

iii. Maryland taxed bank because unhappy with it.b. Maryland's Argument:

i. Congress has no right to establish federal bank because states are sovereign.c. Government's Argument:

i. Supremacy Clause allows government to trump state law and decisions.1. Article 6d. Procedure:

i. Start in county court, appeal to Maryland court of appeals.ii. Removal to federal court because federal question of constitutionality - Supreme Court.

I. Commerce Clause - Article I, Section 8a. Four Time Spans

i. Early History - through 1890's1. Powers broadly defined.

ii. 1890's through 1937-ish


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1. Court narrows scope of Commerce Clause2. Industrial Revolution during this time.3. Tenth Amendment becomes important - increases states' powers.

iii. 1937-ish through 1990's1. Expansion Again2. Limit Tenth Amendment

iv. 1990's through Present1. Tenth Amendment expands again.2. States' powers increase again.

a. EX: Arizona's controversial immigration bill.b. EX: South Carolina's bill regarding issuing currency.

b. Analysis of Issuesi. What is Commerce?

1. Dependent on parties involved.ii. What does Among the Several States mean?

iii. Does Tenth Amendment limit Congress' power?II. Gibbons v Ogden (1824)

a. Facts:i. NY gave exclusive license to operate steamboat to Fulton/Livingston.

ii. They licensed Ogden to operate a ferry boat.1. New Jersey/New York waters.

iii. Gibbons operated ferry service that violated exclusive license.1. States licensed under federal law as "vessels in the coasting trade."

iv. Ogden sued for injunction.v. Court considered whether New York could exclusively license under Constitution.

b. Ogden's Argumenti. Exclusive license restricts Gibbons' ability to use waters, regardless of federal license.

ii. Moving about on the waters doesn't constitute commerce, so license doesn't matter.c. Gibbons' Argument

i. Commerce includes navigation, and federal license in better.d. Court's Reasoning:i. Commerce includes all phases of business, including navigation.

ii. Congress has power to regulate interstate navigation, but not navigation solely withinthe operation of one state.1. If it 'affects' interstate commerce, Congress can regulate.

III. US v E.C. Knight Co. (1895)a. Facts:

i. American Sugar Refining Company bought shares of Philly refineries.ii. Sherman Anti-Trust Act of 1890 passed by Congress.

iii. ASRC had 98% of sugar manufacturing, and sued under Sherman Anti-Trust Act tobreak up monopoly.

iv. Can Sherman Anti-Trust Act suppress monopoly?b. Court's Reasoning:i. Manufacturing does not rise to the level of commerce.

ii. Police power of state over manufacture must be separated from Congressional power toregulate commerce.

iii. Not interstate commerce until entered into stream of commerce (at point of shipping,etc.).

c. Dissent:i. However, Congress has power to remove obstructions to regulating interstate

commerce, and manufacturing is an obstacle to that regulation.


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I. Carter v Carter Coal Co. (1936)a. Facts:

i. Bituminous Coal Conservation Act of 19351. Voluntary

ii. Stabilize bituminous coal-mining industry, promote interstate commerce, marketing,and preserve the natural resource.

iii. Confers ability to fix the minimum price at every coal mine in the US, and to fix themaximum price if necessary to protect consumers from unreasonably high prices.

iv. Employee rights to collective bargaining to perpetuate the fixed prices.v. Tax break for companies who operate under the Act.

b. Issue:i. Whether Congress has the power to regulate prices and employee rights over

production of coal?1. Infringes upon company's ability to operate its business as it sees fit.

c. Tenth Amendment Argument:i. Can only be raised by the states themselves.

ii. Power to regulate employment and production within its boundaries is reserved toStates.

d. Commerce Clause Argument:i. "Intercourse for the purpose of trade"

ii. Manufacturing and production is outside the stream of commerce, it's a predecessor tocommerce.

iii. Production does not lead to commerce. Commerce exists through negotiations andagreements entirely separate from production.

II. Houston, East & West Texas Railway Co. v United States (The Shreveport Rate Cases) (1914)a. Facts:

i. Rates from Dallas and other Texas cities to Eastern Texas were cheaper than rates fromShreveport into Texas.

ii. Shreveport competes with Dallas and Houston for trade in the area, and the rates fromShreveport to the same stops as from Dallas & Houston are much higher, thereby

"injuriously affected the commerce of Shreveport."iii. ICC found rates unreasonable, and established maximum rates, which were

substantially the same as rates established by the Railroad Commission of Texas, andthose charged by other carriers for similar distances.

iv. Texas was taxing incoming trains from Shreveport, thereby increasing their rates.b. Issue:

i. Whether Congress has the ability to regulate intrastate commerce when it affectsinterstate commerce?

c. Texas Argument:i. The rates in Texas are for intrastate railway shipping costs, which can only be regulated

by the state, Congress.d. Court's Reasoning:

i. Close and substantial relationship, Congress can regulate.1. Substantial & Directii. Congress can enact all appropriate legislation for the promotion and advancement, and

to foster, protect, control, and restrain.1. Remove obstacles to interstate commerce, and the tax levied by Texas restrained

trains moving across state lines.iii. When interstate and intrastate transactions are so related that governing one involves

control of the other, Congress has the ability to adopt the final rule.1. This follows from Congress' constitutional authority.


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2. To say otherwise would give the states supremacy over laws, which is counter tothe Supremacy Clause.

e. Distinguished from Carter:i. Production was completely separate from commerce, so no power to regulate.

1. Production completely within state.ii. Shreveport presents direct affect on commerce, and qualifies as commerce, so Congress

has power to regulate.III. ALA Schechter Poultry Corp. v United States (1935)

a. Facts:i. Live Poultry Code passed by Congress requires selling of whole or half coops of

chicken, and not rejecting chickens individually. Also deals with collective bargainingand other employee rights in the industry.

ii. Schechter indicted under violations of code.iii. Defendants are a slaughterhouse, with religious practices for killing chickens, who sold

unfit chickens, and were indicted for the ways in which they were selecting chickens.b. Defendant's Argument:

i. The point at which they purchase the chickens is entirely in state, and have ended theirjourney through interstate commerce at that point.

ii. Once they leave interstate commerce, the chickens cannot be regulated, regardless ofwhere they came from.

iii. Defendant does not order the chickens from out of state, they buy them all intrastateafter they've been shipped to markets.

iv. Once chickens get to New York, if they will not be leaving they state again, state ruleskick in, and Congress' power to regulate ends.

c. Court's Reasoning:i. Agrees with defendants.

ii. Transactions with an indirect affect on interstate commerce remain within the domainof the state powers.

iii. Expanding the scope to indirect effects would allow Congress to regulate all aspects ofcommerce, regardless of qualification as interstate vs. intrastate.

d. Distinguishing Shreveport:i. Shreveport was a direct effect on interstate commerce.ii. Here, the effect was indirect, putting it out of the reach of Congress.

1. Direct vs. indirect effect is a decision to be made by the trier of fact.I. Hammer v Dagenhart (1918)

a. Facts:i. Child Labor Act prohibited transfer of goods interstate if produced by children.

ii. Father and his sons seeking injunction against enforcement of that act because the lawis unconstitutional.

iii. Push to standardized rules regarding child labor.b. Father's Argument:

i. Act not within the Commerce Clause.1. Manufacturing is not commerce, so no regulation.ii. Beyond power of federal government because it's a states' issue.

c. Act held unconstitutional.II. Champion v Ames (1903)

a. Facts:i. Defendant indicted for violating Federal Lottery Act.

ii. Prohibiting transporting lottery tickets across state lines.iii. Defendant is shipping company.

b. Defendant's Argument:


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i. A shipping company carrying boxes that contain lottery tickets is not commerce.c. Court's Argument:

i. Congress can regulate this act, because allowing people to transport them without"knowing" deprives the states' their power to determine their affairs in their borders.

d. Distinguished from Hammer:i. Hammer involved production.

I. Topics for Todaya. Justiciability Doctrine

b. Deals with what kinds of cases can be heard by federal courts.i. Article III, Section 2

1. Defines "cases and controversies"c. Equity Court = I want restoration/fairness.d. No advisory opinions.e. Standing

i. Who can take a case to court?f. Ripeness

i. Writ of Certioarig. Muteness

i. Defendant charged by federal government, then dies before case adjudicated.ii. Issue is mute, won't be heard.

h. Political Question DoctrineII. Justiciability Doctrine

a. Prudent judicial administration.b. Constitutional vs Prudential Limits

i. Based on federal judicial power.ii. Congress can overturn the prudential test by statute.

iii. Congress can't expand judicial power beyond that in the Constitution.1. Limit on judicial review cannot be changed by law.

iv. Tied to separation of power.c. Conserves Judicial Resources

i. Too many cases would clog up the system.ii. Prudent idea restricts number of cases.d. Improves Judicial Decision Makinge. Promotes Fairness

III. Advisory Opinionsa. Ask Court to give you opinion in a "what-if" situation.

b. Federal courts may not decide cases unless there is an actual controversy.c. Declaratory Judgment Act of 1934

i. Allows federal court to issue declaratory judgment in a case where this is actualcontroversy.

ii. Case has already been filed, then they can issue opinion. If no case filed, no opinionwill be issued.

IV. Standinga. Is the specific person allowed to bring this case to court?i. EX: Prop 8 in Cali.

b. Requirements:i. Plaintiff must allege that he has suffered or immediately will suffer an injury.

ii. Plaintiff must allege that the injury is traceable to the defendant.iii. Plaintiff must allege that this court is the likely court to redress the injury.

c. Arises in cases that present important issues to be decided.d. Deals with jurisdiction, can be challenged at any time.


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e. Exceptions:i. Assert rights of third party not before the court if the third party has substantial

obstacles in asserting their rights.ii. Relationship between advocate and third party.

iii. Overbreadth - Permits individual to challenge a statute on the ground that it violatesFirst Amendment rights of a third party.

iv. Standing for Association1. Can sue on behalf of its members.

V. Ripenessa. When review is appropriate.

b. If it is speculative, it's not ripe yet.I. Mootness

a. An actual controversy has to exist at all levels of the proceeding.b. At both trial and appellate level.c. Personal interest that exists at beginning case must persist throughout entire case.

i. Person dies, situation changes, etc.II. Political Question Doctrine

a. Dealing with subject matter that court deems to be inappropriate for judicial review.b. Exception: Court can review political parties in terms of racial discrimination laws.

i. Not internal affairs of political party.c. Court will not deal with politics in general.

III. Commerce Clause 1937 - 1995a. No laws declared unconstitutional.

b. Rehnquist joins court at end of this era.IV. NLRB v Jones & Laughlin Steel Corp.

a. Facts:i. National Labor Relations Act of 1935 set up National Labor Relations Board (NLRB).

ii. NLRA regulated labor laws in business during depression.iii. Jones was a steel company who was charged with violating labor laws.

1. Intimidating employees, discriminating against tenured employees, etc.iv. NLRB enforces regulations, and brings suit against companies who violate the act.b. Procedure:

i. Board found that Jones had violated act.ii. Court of Appeals found for Jones, said law unconstitutional because Jones operates

intrastate.c. Jones' Arguments

i. NLRA is unconstitutional because it exceeds Congress' power.ii. Jones argues NLRA regulates all industry, and violates States' powers to oversee their

own concerns.d. Issue:

i. Did lower court make a mistake?e. Court's Reasoning:i. Union operates for company, and company has locations in several states.

ii. If crossing several state lines, becomes inherently interstate.iii. Jones' commercial activity is interstate, and union laws have direct influence on

interstate commerce, which gives Congress ability to regulate.V. United States v Darby (1941)

a. Power of Congress to regulate is not limited to purely interstate commerce, but extends tointrastate activities that so affect interstate commerce as to require regulation.

VI. Wickard v Filburn (1942)


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a. Facts:i. Defendant owned farm, grew wheat, some for his own consumption.

ii. Congress had regulated wheat market to affect supply and demand and make pricesfair.

b. Court's Reasoning:i. Personal consumption still affects interstate commerce.

ii. By growing it for yourself, you are not buying from the available market, and thusaffecting supply and demand. It gives more to the supply, allowing the prices to drop.

iii. Look at activity in the aggregate, what would happen if large amounts of people did it.VII. Commerce Clause after Wickard v Filburn

a. Allows Congress to regulate any activity.b. Tenth Amendment does not have power to reserve a zone of activity to the States.c. Lessens power of the states.d. New issues arise under civil rights and public accommodations with respect to interstate

commerce.e. Fourteenth Amendment originally applied only to governmental conduct.f. 1964 - Civil Rights Act

i. Private discrimination based on race, gender, or religion, is illegal.ii. Prohibited racial discrimination in public accommodations.

g. Congress afraid to use Fourteenth Amendment because of precedent set in 1880's. BasedCRA on Commerce Clause.

VIII. Heart of Atlanta Motel, Inc. V United States (1964)a. Facts:

i. Motel claims Congress exceeded its power to pass this law.ii. Appellees counter that unavailability to blacks of accommodations interferes with

interstate travel.iii. Travel is a fundamental right.

b. Court's Reasoning:i. Congress has power to regulate interstate commerce and "local incidents of

commerce."

1. Motel had advertisements on interstate advertising for people to stay and eat attheir hotel.2. Placing the ad on the road constitutes commerce.

c. Concurrence:i. Fourteenth Amendment grounds, not Commerce Clause, but same result.

IX. Katzenbach v McClung, Sr. & McClung, Jr.a. Facts:

i. 46% of meat came from out of state.b. Court's Reasoning:

i. Starts to look at rational basis.1. Lowest level of scrutiny.2. Is the law rationally related to a governmental objective? Reasonable?

ii. Congress had a rational basis for finding that racial discrimination in restaurants had adirect and adverse effect on the free flow of interstate commerce.1. Store brought in large portions of product from out of state.2. If it had served or advertised to interstate travellers, this would apply also.

X. Hodel v Indianaa. Regulatory Laws:

i. Regulated activity must have substantial effect on commerce.XI. Perez v United States

a. Criminal Laws:


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i. 3 Categories:1. Use of channels of interstate commerce that are being misused.2. Protection of instrumentalities of interstate commerce3. Those activities affecting commerce.

I. Tenth Amendment in 1970'sa. Rehnquist joins Court.

b. Tenth Amendment begins to limit Congress' power.II. National League of Cities v Usery (1976)

a. Question:i. Can Congress pass a law regarding working conditions when the state is an employer?

b. Court's Reasoning:i. Congress can't impose laws regarding employment when State is the employer.

ii. Authority of Congress from Constitution is infringing on the States' sovereignty. (TenthAmendment)

iii. Relationship between state and its employees cannot be ruled on by Congress, infringeson sovereignty.

iv. Law affects several other spheres of state government that makes it unconstitutional(wages, taxes, budgets, etc.)

v. Congress cannot enforce minimum-wage and overtime provisions of FLSA againstStates in areas of traditional governmental functions.1. What are these? How do we define them?

c. Dissent:i. Federal power gives Congress ability to pass these laws, regardless of if they affect the

state.III. Garcia v. San Antonio Metropolitan Transit Authority (1985)

a. Clarifies National League of Citiesi. Congress' ability to rule under the Commerce Clause should not be restricted by

"traditional" or "integral" functions of government.ii. Protection of state sovereignty should exist through process (Senate, etc.) not as an end.

b. Dissent:i. States' role in electoral process does not guarantee the States' their freedom, becauseStates do not have a role in electing Senators anymore. The argument that Congress

will inherently represent the States' interests is untrue, because the Senators representthe people of the state, but not necessarily the States' sovereignty itself.

IV. United States v Lopez (1995)a. Facts:

i. Student brought handgun to school. Federal government had passed Gun Free SchoolZone Act of 1990. Government charged him with violating the act.

ii. Texas charged him, but dropped charges when federal government charged him.iii. Student appeals because it oversteps Congress' power to legislate.

b. Government Argument:i. Law affects interstate commerce.

ii. Guns make the learning environment stressful, and decrease the standard of education.Decrease of standard of education affects national economy, because learning leads tojobs and wages and spending, etc.

c. Court's Reasoning:i. Court says they must draw the line between interstate commerce and its limits.

ii. There are three categories of commerce:1. Channels of interstate commerce2. Instrumentalities of interstate commerce3. Substantial relation to interstate commerce


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a. This case falls under this category. Does gun presence in schoolssubstantially affect interstate commerce?

iii. Substantial Relationship Argument:1. Government says aggregate argument - lots of guns creates poor education

system. Poor education lessens our competition in world economy.iv. States have the ability to regulate this how they see fit. Congress does not need to

legislate on it, as it infringes upon states' rights.V. United States v Morrison (2000)

a. Facts:i. Morrison attacked a woman while at college, was not punished under Va. Tech's

policies. Woman filed suit in district court for sexual assault under Violence AgainstWomen Act of 1994.

ii. Outlaws discrimination based on gender, Act considers sexual violence discriminationbased on gender.

b. Substantial Effect on Interstate Commerce?i. Court says no. Gender motivated crimes are not related to commerce, and are not

economic activity at all.c. Dissent:

i. Aggregate effects of sexual assault are economic.ii. Congress could regulate racial discrimination without determining dollar amounts, why

can't they do so with gender?I. Pierce County, Washington v Guillen

a. Facts:i. Woman dies in car accident, husband sues. Tries to discover information regarding

states' knowledge of dangerous intersection where wife dies.ii. State had knowledge of danger because of research conducted for federal funding bill

to get help repairing roads, but didn't want to divulge because Congress protectedinformation to induce compliance.

b. Commerce Clause Argument:i. Congress can protect this information because it allowed compliance by states. States

weren't complying because of possible suits by injured.II. Gonzales v Raich (2005)

a. Facts:i. Two women grow marijuana for personal medical purposes. California allows this, but

federal government busts them pursuant to federal controlled substances laws.b. Court:

i. Wickard v Filburn allows Congress to regulate local activities that have substantialaffect on interstate commerce.

ii. Morrison and Lopez apply to things that aren't economically based, but they aredifferent from this case because marijuana is economically based.

c. Dissent:i. Too broad a ruling, allows for regulation of anything if regulation of this.

ii. States are laboratories for trying different methods of solving problems.1. Cali's ability to find solution to medical marijuana problem severely affected bythis ruling.

III. New York v United States (1992)a. Facts:

i. Feds trying to impose laws regarding radioactive waste disposal. Congress tries to forcestates to dispose of waste in a specific way or face penalties.

b. Court:i. Congress can provide incentives for the program, but cannot force states to comply.


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ii. Congress can only regulate private interests, not States.iii. Conscription leaves encouragement and turns into coercion.

c. Dissent:i. Constitution does not limit Congress from requiring action by the States.

IV. Printz v United States (1997)a. Facts:

i. National background check system to purchase firearms, but temporary enforcement bylocal officials until system set up.

ii. Officials sue because they are being conscripted to federal job as officers of the state.b. Court:

i. Executive job to enforce laws. Local officials are not under sufficient control, andtherefore don't have power to execute law.

ii. Framers meant to separate federal and state powers, so use of local officials for federaljobs is likely against that separation.

iii. States are sovereign, so they can't be used to do federal work. Can only enforce theirown laws over which they have autonomy.

V. Reno v Condon (2000)a. Facts:

i. DPPA regulates sale of information from DMVs.ii. State argues that law makes them forced actors in implementing federal policy.

b. Court:i. State's argument invalid, because law does not regulate HOW State protects

information, only that they must.ii. Distinction between database and State itself.

iii. Regulate State like any private owner of said information.I.

United States v Butler (1936)a. Congress passed Agricultural Adjustment Act of 1933, which sets limits on production of

certain crops and imposes taxes on production in excess of the limit. Also authorized grants

to farmers to control production and regulate prices.b. Tenth Amendment - Does it limit Congress' power or not?c. Power to lay taxes is meant for the general welfare.

i. Agricultural taxes do not count as general welfare, cannot raise this tax.ii. Intrudes on states' power to regulate its citizens?

II. Steward Mach. Co. v Davis (1937)a. Social Security Act required businesses with 8 or more employees to pay tax.

b. Taxes must be laid according to the census.c. Duty/impost/excise must be uniform throughout the United States.

III. Sabri v United States (2004)a. Bribery Statute that says state/local/federal officials who receive more than $10,000 in federal

money, can be found criminally guilty if they accept more than $5,000 in bribes.

b. There must be a connection between the restrictions on federal money and the law.i. Court says: Federal money frees other money for bribery. Point of law is to end briberyin general, so connection between receiving any federal money and bribery is rationaland therefore constitutional.

ii. Dissent says: If money isn't going to same department as bribed official, not rationallyrelated. Too broad.

IV. South Dakota v Dole (1987)


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a. SD allows 19 year olds to purchase beer under certain alcohol percentage. Secretary ofTransportation can withhold federal highway funds from states that do not have a drinkingage of 21.

b. State challenges that it violates constitutional limits of Congress and the 21st Amendment.c. Drinking and highway funds related due to the general welfare of citizens.

i. Not financial inducement that is coercion because the amount of money they lose is asmall percentage of funds.

ii. 5% of funds is major factor that allows this connection.d. Dissent:

i. General welfare = safe highways, but not necessarily how they become safe.ii. Drinking age is under states' power to regulate, Congress can't condition money on

things under states' purview.V. In Class Question - Federalism & Commerce (Child Pornography Case)

a. School's Argumentsi. Lopez - Out of reach of Congress' Commerce Clause power

1. Not substantially related to interstate commerce.2. Affects state's ability to monitor welfare of its citizens.3. Findings do not support substantial relationship with interstate commerce.

a. Nothing regarding interstate commerce.4. Commercial activity doesn't really exist here.

a. Not trading money for goods.b. Law doesn't regulate the prize, just the picture.

ii. Tenth Amendment - Turns state into officer of federal government.1. States have to use own money to monitor Internet.2. OMC turns local officers into federal officers, without appropriate supervision by

President (who enforces federal laws).3. General welfare applies to police power, violates States' rights to that power.

b. Government's Argumentsi. Property Authority under Article I, Section 8

1. Substantially related.a. Internet covers every part of the country/world, regardless of if materialstays in one state. Available to all.

b. Even if local, if affects interstate commerce, Congress can regulate. Localactivity, but published on internet allows for others to gain access as well,including out of state.

c. Rationally related?i. Regulation of child pornography on Internet protect welfare of

children.ii. General welfare, national economy = commerce.

2. Internet is instrumentality/channels of interstate commerce.a. Highways, railroads, waterways all instrumentalities of commerce.

b. Internet network held by school is not a closed network for the school,others can use. Thus channel of commerce.i. Anything connected to that network is an instrumentality of

commerce.ii. Tenth Amendment

1. General welfare power.a. Applies to taxing and spending. Can't raise general welfare under Tenth

Amendment.2. Statute doesn't go just to states, but to publicly or privately owned

communications.


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a. States have to fund office to monitor internet, and infringes state's right topolice power.

I. 13 & 14 Amendmentsa. Thirteenth Amendment

i. Section 2b. Fourteenth Amendment

i. Section 4II. 1875 - Civil Rights Act

a. Dealt with public accommodations.b. Fourteenth Amendment originally thought to apply only to those who had previously not had

equal protection.i. Corporations identified as 'people' under case law. Therefore, corporations protected

under 14th Amendment.c. Supreme Court rejects 8-1 the Civil Rights Acts as unconstitutional.d. 1968 - Section 2 of Thirteenth Amendment

i. Prohibits private discrimination action.III. United States v Morrison

a. Congress restricted under Article 5 power, because Fourteenth Amendment applies on to stateactors. Cannot use it to apply to private individuals.

IV. Katzenbach v Morgan & Morgan (1966)a. New York requires proficiency in English to vote.

b. Congress passed law prohibiting such requirements, challenged by New York.c. Supreme Court said Congress can do so under Fourteenth Amendment if plainly adapted to

equal protection, and consistent with the letter and spirit of the Constitution.

I. Schedulea. Week 9 - 3/21

b. Week 10 - 3/28c. Week 11 - 4/4d. Week 12 - 4/11e. Week 13 - Wrap UpII. City of Boerne v Floresa. History:

i. Religious Freedom Restoration Act passed in response to Court decision in Smith.ii. Church wants to expand, and applies for permit. City won't allow because of its

historical value.b. Section 5 of 14th Amendment

i. RFRA - Government requires compelling interest in least restrictive way possible toburden someone's ability to freely practice religion, even under rule of generalapplicability.

ii. Purpose - Remedy past indignity? Enforcement tool?1. Enforcement Clause - Section 5 (Congress shall have ability to enforce the

provisions of this amendment).2. RFRA contradicted separation of power.3. Enforcement Clause only allows Congress to enforce the 14th Amendment, not

to determine what Amendment says or what rights it includes.iii. Smith changes test.

1. Free Exercise Clause cannot be used to challenge laws of general applicability.2. RFRA oversteps bounds, so Smith upheld.3. Law restricting permits for historical sites upheld because it applies generally.

c. Scrutiny Levels - Standard of review for constitutionality.


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i. Rational Basis1. Compelling governmental interest2. Least restrictive means possible to enforce the interest.

III. Eleventh Amendmenta. 1798

b. When can the state be sued?i. Congress can authorize suits against state governments (Section 5, 14th Amendment).

Not under any other power.ii. Until 1868, states cannot be sued at all.

c. Does the State have sovereignty that it can use to stand up to the federal government?i. Article III authorizes suits against the State by citizens of another state.

ii. States cannot be sued by their own citizens.d. Restricts only diversity jurisdiction.e. Does not preclude suits based on federal question.

i. Hard to enforce federal laws against state government.ii. States cannot be sued in violation of federal right in federal court.

1. State officers can be sued as state officer.a. If payment would be made by state taxes, cannot get it. If personal money,

can.2. State can waive immunity - clear and explicit.

a. Written - statute, agreement, etc.3. Congress can authorize suits under 14th Amend. Section 5 - Supreme Court

ruling.

I. Preemption & Dormant Commerce Clausea. Preemption: Federal Government has total control of all legislation in a certain field.

i. Express vs. Implied1. Implied - Does it affect commerce? If it does, use Commerce Clause to find

preemption.2. Express - Clearly written

a. Immigration, federal income tax, armies, money, etc.ii. Supremacy Clause:1. Used to resolve conflict between state and federal law. Federal law is supreme.

iii. Privileges and Immunities: Article IV, Section 21. Out-of-state residents receive all benefits of in-state residents, except in certain

circumstances.iv. Field vs. Conflict

1. Field - Everything in certain area.2. Conflict - When state laws conflict with federal law.

b. Dormant Commerce Clausei. Deals with state's attempt to do something that has to with commerce, and federal

government has not spoken on.

ii.

Commerce Clause only has regulatory power.1. Silent as to state's ability to regulate commerce.2. Conflict between state & federal law, look at supremacy clause.

iii. Modern View:1. When Congress is silent, the dormant commerce clause imposes some restriction

on the states.a. If you can show that the states are involved in interstate commerce.

i. Does state regulation discriminate against interstate commerce? -Protectionism


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ii. Are there any incidental burdens?1. If either answer is yes, states cannot regulate.

iv. How much power do states have to regulate commercial activity?1. If law has exclusionary affect to out-of-state commerce and serves no compelling

interest, per se unconstitutional.2. Laws passed on individual rights must be even handed (no anti-competition).

v. Undue Burden:1. Even if law is non-discriminatory, it can still place an undue burden on interstate

commerce.

I. Lorillard Tobacco Co. v Reilly (2001)a. Pre-Emption

i. Ceiling vs. Floor1. Ceiling - State can't exceed federal limits.2. Floor - State must meet, but can give more than federal.

b. Location vs. Contenti. Can state regulate where ads are, or what they say, or both, or neither?

1. Pre-emption by federal FCCLA says neither.II. Florida Lime & Avocado Growers, Inc. v Paul, Director, Dept. of Agriculture of California (1963)a. Implied Pre-Emption

i. Viewed as floor. Minimum across all states.ii. Standards can be increased individually by states.

III. Pacific Gas and Electric Co. v State Energy Resources Conservation & Development Commn.(1983)

I. Hines, Secretary of Labor & Industry of Pennsylvania v Davidowitz (1941)a. Facts:

i. Penn. Required registration and fees for aliens, and to carry ID cards with them at alltimes.

ii. Gov't passed similar law for Department of Labor and Industry to register aliens.b. Issue:

i. Does federal law preempt Penn. Law?c. Court's Holding:

i. Congress has right to legislate over immigration, and when they have done socompletely, the states cannot curtail or complement the federal law, or enforceadditional or auxilliary regulations.

ii. States can regulate non-citizens within their states, but not with things that speak toimmigration.1. Withhold state benefits, but not require registration as Penn. Tried to do.

II. Dormant Commerce Clausea. Implied restriction on states' as it relates to issues dealing with interstate commerce.

b. Standard of Reviewi. Interstate Commerce

1. Protectionism - Strict Scrutiny review.a. Compelling state interest & narrowly tailored to achieve that interest.

i. Balancing test applied to narrowly tailored analysis.ii. Out of State Residents

1. Is it facially neutral, or explicitly discriminatory?iii. States' Burden:

1. Show legitimate purpose.c. Exceptions:


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i. Congressional Consent1. Must be specific.

ii. Market Participant Exception1. When performing some activity that mimics the action of private economic

actors (subleasing, buying or selling goods or services) and uses money oftaxpaying citizens to do so, different rule.

a. Regulations - without interest - do not count here.b. States should have same ability to make these choices in the market as

other market participants.III. Privileges and Immunities Clause

a. Article 4, Section 2b. States cannot discriminate against citizens of another state.

i. When does that apply?1. Work, trade, taxes on items cannot be discriminated against.2. Strict Scrutiny review.

ii. Only applies to 'actual' people, not corporations.c. Only deals with fundamental rights.

i. Domestic travel, not international travel.ii. Trade/make money/income.

I.Pacific Gas and Electric Co. v State Energy Resources Conservation & Development Commn.(1983)a. If state concern is economic, not considered pre-empted.

b. If goal is safety, there is pre-empted.II. HP Hood & Sons, Inc. v Du Mond, Commissioner of Agriculture & Markets of New York

a. States cannot prohibit outside market forces from coming in strictly to increase its' localmarket's business.

b. Outside markets can be prohibited for SAFETY reasons, but not economic interests.III. Aaron B Cooley v Board of Wardens of the Port of Philadelphia (1851)

a. Rule requiring all ships to hire local pilots while in the Port of Philly is upheld.i. Purely local in nature, applies equally to all ships, regardless of origin (exceptDelaware River).

IV. South Carolina State Highway Dept. v Barnwell Bros., Inc. (1938)a. SC passed law that limited the size of semis on state highways.

i. No Interstate highway system yet (1950's under Eisenhower).b. Challenged law that it burdens interstate commerce because trucks couldn't cross state lines

without having to switch trucks.i. SC argues safety on highways, and at the time they maintained and built their own

highways. SC can regulate the safety of their own highways, and are not affectinghighways outside of the state.

V. Southern Pacific Co. v Arizona Ex Rel Sullivan, Attorney General (1945)a.

Balancing Test for Interstate Commerce Burdeni. Substantial burden unreasonable.

1. Greater the burden, the less likely a law will be deemed to be constitutional.ii. Impacts uniformity, efficient operation.

b. Arizona law had no reasonable relation to safety, and actually made operation moredangerous.

c. Arbitrary and capricious action by state will be overturned.VI. City of Philly V New Jersey

a. NJ law prohibited collecting waste from other states by landfills.


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i. Plaintiff collected waste from cities on borders of NJ, and it substantially affected theirbusiness and agreements.

b. NJ had no reason to prohibit waste; based solely on origin.i. No health, safety, welfare argument by NJ that can stand.

I. C & A Carbone, Inc. v Town of Clarkstown, New Yorka. Tipping fee unconstitutional because it favors local business over out of state business.i. No health, safety, welfare argument.

ii. Economic because city was going to buy facility eventually.II. United Haulers Association, Inc. v Oneida-Herkimer Solid Waste Management Authority

a. Similar to Carbone, except public facility in this case.b. State bears full burden of ordinance, so no discrimination.c. No public benefit, even if economic, if owned by private entity.

III. Hughes v Oklahomaa. Blanket restriction on minnows too strict. Purpose of conservation could have limited how

many licensed dealers take from waters, not preventing any from leaving state.IV. Hunt v Washington State Apple Advertising Commn.

a. No facial discrimination, but places discrimination on Washington State apples.b. Prevents competition from Washington, increases local competition.c. If facially neutral law results in discriminatory effect, unconstitutional if no rational basis.

V. Exxon Corp. v Governor of Marylanda. Petroleum refiners cannot operate retail gas stations in Maryland.

b. Not discriminatory against out of state vs in state. All refiners cannot own retail stations,regardless of whether gas comes from within the state or outside of the state.

c. No advantage to in-state refiners/dealers as compared to out of state refiners/dealers.I. West Lynn Creamery, Inc. v Healy

a. Massachusetts enacts a tax to subsidize state dairy farmers.b. States may tax, and may use that tax to subsidize.

i. Here, the tax is mainly on out of state milk, so the tax is burdening local interstatecommerce by taxing them, and by affecting their market share by subsidizing localfarmers.1. Tax versus tax/subsidy combination.2. Tax alone constitutional, tax/subsidy not because if burdens interstate commerce.

II. State of Minnesota v Clover Leaf Creamery Co. (1981)a. Statute banned nonreturnable, non-refillable plastic containers.

i. Passed it to eliminate extra waste.b. No discrimination between in state and out of state. All producers must follow statute.

i. Burden minor - producing in both paper and plastic anyway; milk may still move freelyacross border; out of state burdened heavier, but not excessively compared to legitimategovernmental interest in decreasing waste and conserving energy.

III. Maine v Taylor & United States (1986)a. Discriminatory State Law = strict scrutiny

b. Maine claims imported minnows have parasites that affect health. Win because TenthAmendment health, safety, welfare claim.i. May burden interstate commerce, but health concerns are more important than burden

on commerce, so statute upheld.

I. Barron v Baltimorea. 5th Amendment doesn't apply to the state.

II. Slaughterhouse Cases


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a. State gave monopoly to slaughterhouse, butchers said unfair.i. State said health issue.

b. Butchers brought challenges under every part of section 1 of 14th Amendment.i. 14th Amendment doesn't apply to states, no remedy for butchers.

III. Saenz v RoeI. Saenz v Roea. Right to travel = fundamental right.

b. Due process under 14th Amendmenti. Fourteenth Amendment applies to the component of travel, and specifically to the right

to travel within the States.c. Case decouples travel from other fundamental rights.d. Article 4, Section 1 - One state versus another state.e. Fourteenth Amendment - State government discrimination.

II. Twining v New Jerseya. Opened up possibility to incorporate Ten Amendments under Fourteenth Amendment, though

not possible in this case.III. Palko v Connecticut

a. 5th Amendment double jeopardy incorporated, and applied to states.IV. Adamson v Californiaa. Fifth Amendment right against self-incrimination incorporated, and applied to states.

b. Dissent: Fourteenth Amendment should incorporate all of the first ten amendments.V. Duncan v Louisiana

a. Sixth Amendment right to trial by jury in any criminal case incorporated and applied tostates, if the case falls under Sixth Amendment in federal trial hypothetically.

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