Constitutional Function1. RIGHTS2. STRUCTURE: Separation of Powers (SOP)a. TWO Featuresi. Federalism: state and Federal autonomyii. SOP between federal government1. Create Durable republican governmentin order to withstand shift in public government.2. Stop Tyranny: Prevent Majority Tyranny/Minority Rule (Madisons Concern)3. Maximize citizen Participation b. Separationisti. Seal all branches from each other/ Sharp legal boundaries from each otherii. More formalisticc. Checks & Balancesi. Madison if people are ruthlessly self-interest and will pursue their own interest (parchment barrierspeople will find way)ii. Better to make impossible for each branch to co-exist without each other.iii. More functional1. Blending of branches2. What happens when it goes too fara. Aggrandizement-increasing power of one branch at expense of another branchb. Encroachment-assertion of authority that decreases power of another. May not increase power of encroacher.c. Dilutionmake it harder for one branch of government to their job.d. 3. ENTRENCHMENT: Article Va. Constitution is hard to change once you put it in the document/ not without broader public movement or support.4. TRUMPINGa. Art. IV Cl. 2; Supremacy Clause Constitution always Wins; law of United States. i. Supremacy clausetext. Supremacy clause (inii. Can lead to preemption1. Federal > State2. Does Not Trump Federal

Constitutional Reasoning/ (TYPE OF INTERPRETATIONS)Orginalism Framers intent: what did the framers intend when they wrote constitution,. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria. Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives. Originalism in the end better preserves the authority of the Court. Problems Lack of historical record Dead hand Why should we listen to people that are not alive.Non-Originalism Living constitutionalist. Evolve with times Evolved in meaning over time. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It is better than flipping a coin. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)

Formalism/ Functionalism Formalist Attempt in legal reasoning to achieve a logical conclusion. Allows for changing circumstance Preference for crisp clear rules

Functionalist Purpose of constitution is to create a stable government. Durability Pragmatic consequences for functioning and efficiency of government

Modalities (MODES OF INTERPRETATIONS) (bobbit) HistoricalFramers and ratifiers intention StructuralInferences based on structure/relationship based on set up. TextualActual words of text EthicalRules derived from moral commitments Political ethos/ideals PrudentialPolicy or Pragmatic/ Cost benefit analysis of a particular rule DoctrinalCase law/Precedent

Basic Framework

Marbury v. Madison Marbury was appointed commissioner by outgoing president but was denied apt. Establish idea that Supreme Court only has jurisdiction over cases that involve federal question. Established Review of executive actions Draws distinction between two types of duties Ministerial- administrative functions; Individuals rights involved and judicial review is appropriate Discretionary Executive has discretion in how to act(core function)negotiating a treaty; political process is the only check on the executive Established that Article III is the ceiling Congress cannot expand original jurisdiction Words mean something not just surplusage Federal courts cant gain jurisdiction by consent There Central Questions Does Person have a Legal RIGHT? Was it VIOLATED? Yes/Yes. Right originated in statute passed federal congress. If someone is nominated by the president confirmed by the senate and the US commission. Is there a legal REMEDY? Judicial or (Executive) Beginning of PQ Doctrine Some laws to not have judicial remedy ENTITLED TO THE REMEDY that applies

Judicial Review vs. Judicial Supremacy Judicial review: Not controversial- SC can review decisions by other branch Judicial supremacy: SC has final say in conflict between branches Trumping Judiciary view trumps congress/president/VA Courts should decide Questions of constitutional trumping. Insulated from politics (life tenure; unelected) Will vs. Adjudication

Writteness Fact that its written down why not have it trump institution that are created by other branches. Codified Limitations of Power Does not allow for Amendment of ordinary legislation Departmentalism where word of Sc wasnt finalleads to problem of how do you resolve Marshall argument for JRJS Non-Textual--Structure of government Bolsters separation of powers Textual--Arising under clause Giving court power to all cases arising under constitution. Judicial oath argument Courts take an oath to support constitution Supremacy clause Constitution takes precedent over everything where there is conflict between a federal statute Marshall reasoning in deciding Textual commitment Departmentalism Recognize the authority of each federal branch or department to interpret the constitution independently.

Counter-majoritarian (Congressional Power) Usually gains traction when issue is divisive Can damage legitimacy of court. Least democratic branch making decisions JR allows them to counter the most democratic one--allowingunelectedjudges use the power of judicial review to nullify the actions ofelected executives or legislators, they act contrary to majority will as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickels naming of this problem, it dominated constitutional theory. discrete and insular minorities. The background to this answer is the premise that in the long run, most individuals win some and lose some in the process of democratic decision making. Shifting coalitions among various interest groups spread the wealth and the painno one wins all the time or loses all the time. Or rather, normally wins and losses are spread across the many different groups that constitute a given political society. However, there may be some groups that are excluded from the give and take of democratic politics. Some groups may be so unpopular (or the victims of such extreme prejudice) that they almost always are the losers in the democratic process. Responses There may be reasons why elected politicians prefer for the Supreme Court to take the heat for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, It wasnt me. It was that darn Supreme Court. And in fact, the Supreme Courts involvement in some hot button issues may actually help political parties to mobilize Bolsters Separation of Powers Inter-temporal difficulty Dead hand problems Based on passed wishes of government Make amendment process easier Who interprets They can come up with something crazy Entrenchment Martin v. Hunter Hunter had land in VA given to him through confiscation Treaty prohibited confiscation. (Justice Story) Article III--Appellate jurisdiction not limited to any particular CT States lack judicial power of US otherwise who would hear cases. Supremacy Clause Fed. Laws/ Treaties trump state There theories of sovereignty Compact Theory Analogous to state law. VA is sovereign and supreme. BUT COUNTER ARGUMENT Federal law is national in scope Federal law governs institutions not conduct States not Sovereign 10th Amendment Cant Coin money Cant raise and army Cant conduct war Article III would be useless Results in non-functional system. If VA had prevailed wed have 50 versions of the same act.--> what happen to JS from Marbury Anti-Compact Theory Constitution empowers the Fed. To take powers away from the states. Ratify Convention states did not have to do it. Justice story refutes this by: Federalist View Federalists did not want the classical conception of sovereignty--> what the constitution creates if the states possess sovereignty. The states are less sovereign than the federal government. States are not autonomous--> subject to outside provisions. States subject to control by state government. Federalism would not work otherwise. It is a double security against a faction taking over government power. Anti-Federalist States should retain full sovereignty Federalism Strong states stop government tyranny Increase citizen participation Preferences differ and change over time90s was very pro states rights.

McCulloch It also has the power to pass legislation that is necessary and proper (useful not absolutely essential) Structural Argument Constitution as a foundational charter that created system of government designed to address national problems People want a national government to be effective; Implied Powers view Suggestive that congress has power to create national bank. Strict enumeration would severely hinder federal government Marshall: Never forget that is a constitution we are expounding. Internal Limits Commerce clause External Limits Congress cant do anything that violates Amendments Textual Argument Necessary and Proper Clause Allows government to carry out its duties. Durability not creating new only expanding inherent powers based on TIMES/NEED/ PURPOSE. Reasonable relationship to various constitutional enumerated powers of the government. Congress can collect taxes it can collect taxes, borrow money, and regulate commerce creation of national bank reasonable means to make those granted persons. Means/ Ends Test. Is the goal a constitutional exercise Internal External: arise from constitutional provisions outside text Is the means chosen appropriate & plainly adapted to a goal?

Case and controversyMost cases are made without judicial oversight Strong vs. Narrow Judicial Supremacy Narrow Predicated on controversy language Vesting Clause Art. III Justiciability Big Question: what's a constitutional case? Advisory opinions --> outside Judicial Power (JPUS) Models of Adjudication Private Rights Model Marbury Judicial Review: confined to fairly narrow category of cases that resemble the paradigm of disputes between private individuals. Power of judicial review necessary Courts should avoid remedies that extend beyond private rights over lengthy periods Public Rights model Brown vs Board Warren Ct creation of new rights Constitutional Rights use offensively function as sword to do something rather than a shield against governmental action Rights created by development of the modem adminstrative state Citizens should be able to challenge government conduct Judiciary not arbiter of private suits Most constitutional theorist accept this model Should be open to public value

JuSTICIABILITY

Where the government function at issue are discretionary and the constitution dedicates discretion to another branch Government should NOT get involved Hinted at in Marbury: Mistake for use to get involved in directing that discretion. Those kinds of cases. Ministerial (non intrusive on executive) vs. Discretionary (intrusive on executive) There must be case and controversy that is justiciable to the court. It ensures --concreteness (actual parties with actual disputes) and judicial restraint and SOP

Strong Theory Mark off a set of cases that may involve a constitutional violation by another CANNOT be heard Ties courts hands even where there is a constitutional violation Weaker Political Question doctrine constitutional official exercise conferred discretion and there can be no constitutional violation Ex: YoungstownTruman seizure of mill. Within discretion of executive as commander in chief

STANDING

Constitutional Limitations set by Article III limiting judicial power to case and cont Constitutional limitation set by Article III limiting judicial power to case and controversy as well as Prudential limitations that are self imposed by the courts. Promotes judicial restraint and SOP. Is there standing Advisory opinion NO Standing: this is outside the context of a litigated case because only gives advice about particular legislative and executive action.

Constitutional Requirements Injury in fact (LUJAN Concrete and particularized to P. (NOT speculative or abstract/NOT generally shared by all) Actual and imminent (NOT conjectural or hypothetical) Traceability (WRIGHT//LUJAN) Casual connection to injury that is Fairly traceable to challenged conduct. Causation issues arise Re-addressability (WRIGHT//LUJAN) There must be an adequate remedy which the court can provide. And relief must be able to eliminate injury

Allen V. Wright (INJURY IN FACT/REDRESSABILITY) Parent brought class action lawsuit against IRS because of Tax exemption to segregated school. Holding: NO STANDING NO Injury in Fact Courts dont recognize right to be free form stigmatic harm. Must demonstrate traditional equal protection rights have been violated by policy (IRS here) NO Traceablity Impairs their ability to have children attend desegregated schools. Its too attenuated. It would mean that the tax exemption is large enough to make an appreciable difference in public segregation. Procedural tension: standing should be threshold issue independent of the merits. Need to avoid protracted litigation where standing is likely to not exist to create factual issues of causation at 12(b) (6)/ 56 stage. Criticism Brennan dissent Lujan (INJURY /TRACEABILITYCREATION OF STANDING BY STATUTE) The ESA protects endangered species. Two plaintiff sue on behalf of wildlife. ( Holding: NO STANDING NO Injury in fact Concrete context in which injuries of species will be felt. Standing for person who have no concrete interest affectedpersons who live (or propose to live at the other end of the country from the dam.) Although courts have consistently concluded that harm to one enjoyment of the environment is sufficient to satisfy Art. III

NO Traceability Agency has to fund enough of the foreign projects. The lack of funding would have to affect the project to the point that the Egyptian government would act.

Prudential Requirements (LOOK AT THESE AFTER CONSTITUTIONAL) Limitations on judicial power that courts impose on themselves for policy reasons NO Generlized grievance PROBLEM Some generalized grievance could satisfy because congress can confer standing. Can be factually appropriate to all NO 3rd Party Action PROBLEM: Attenuated circumstances can be a real causation problem Zone of Interest Is the statute designed to protect you specifically. Comes into play when P challenges governmental action under federal regulatory scheme that doesnt regulate own conduct. PROBLEM: Discrimination as member of a group is sufficient to confer standing in some cases Congress can use statutes to confer standing to individuals who may otherwise not have it. CANNOT get rid of Constitutional requirements.

Massachusetts v. EPA Science Causation/Redress-ability MA sue EPA because they failed to implement the Clean Air Act properly to limit the greenhouse gases such CO2. EPA did not regulate auto industry. Constitutional Requirements INJURY: They were in fact harmed by the decrease in the coastline despite generalized grievance problem. States are going to have a more generalized grievance problem TRACEABILITY: the decrease in coastline can be traced back to CO2 There is scientific fact that link car emissions to increase in greenhouse gases REDRESS-ABILITY: Would the EPA regulation actually help The fact theta other countries CO2 emission are rising faster than US. But it would lessen the impact. Majority: It still takes off the emissions as a whole. Doing nothing wont help. Level of specificity you need to have for traceability/redress ability lowered

Political QuestionsBaker v. Carr Facts: P complained that redistricting statute in TN is bad because it was old and didnt reflect current population Issue: Holding Rationale: Constitutional basis for barring federal judicial action is the SOP. By deciding political questions would undermine the SOP. Judiciary can issue pronouncements on the legality of issuestheir part of the checks and balancesbut there is a point, which they CANNOT go.

Is there a PQ? APPLY THE BAKER TEST Baker Test Does the constitution empower another branch to deal with the issue? (Jurisdictional factor) textually demonstrable constitutional commitment for the issue to coordinate political department Ex: impeachmentthe senate shall be the sole judge of impeachment. Does judiciary lack the resources or apparatus to provide adequate discovery and management standards to five the P adequate relief? (Merit Based) Lack of judicially discoverable & manageable standards for resolving the issue Impossibility of deciding question without making an initial policy determination. Impossibility of resolution without disrespecting other branches Unusual need for unquestioning adherence to a political decision already made Potential embarrassment from varied pronouncement on a single question THE MORE FACTORS PRESENT THE MORE IT IS A PQ OTHERWISE ASK Does the issue implicate the SOP? Does the constitution commit resolution of this to either the President or congress? Inextricably linked cant decide without the PQ

Commerce Clause

COMMERCE CLAUSE: Article 1 Section 8 cl. 3 congress shall have power to regulate commerce with foreign affairs nation tribes and among several states Theory federalism vs. enumerated powers. Gibbons v. Ogden- Necessary and Proper clauseDOES COMMERCE CLAUSE REACH THIS ACTIVITY?1. Channels of SIC//Instrumentalities Highways, waterways, railroads2. Things and People Hours and wages of people3. Substantially related (Wickard/ NLRB) If yes to any 3 analyze commerce clause Case comparison Theoryformalism vs. FunctionalismIS IT COMMERCIAL? Commercial Activity Pretext? Traditional state concern (Garcia vs. National league of cities) Noncommercial activity Lopezno aggregation Need jurisdictional element-an obvious connection between the activity and ISC for congress to be able to regulate it. Lopez: show that element of the crime of having a gun at school is that the gun passed through ISC Sebelius IS THE ACT COMMANDEERING 10th amendment--Congress cannot commandeer the state legislative process to adopt a regulatory program via Commerce clause (NY v. US) Theory-federalism vs. Political accountability Undue Burden (Printz)

Commerce and FederalismConnection between federalism and enumerated powers Enumerated powers Art. 1 Sect. 8 Necessary and Proper Clause McCulloch v. MD: Marshall broad interpretation of N & P Clause. Commerce Clause Rationale 10th Amendment Prevent federal tyranny Enhance democratic rule closer to the people Effectiveness of the Federal Government Federalism protects individuals Madison Historical/Economic Circumstances Originalist vs. Living Constitutionalist Gibbons v. Ogden The federal commerce power reaches interstate commerce not activities wholly within the State. Regulation of wholly intrastate commerce is reserved to several state by 10th Amendment Consider Scope of Commerce Clause: Broad: All parts of transaction Commerce is intercourse To validly exercise the Necessary & Proper clause is it necessary to regulate interstate intercourse. Ct defers to congress Narrow: Exchange of goods and services Supremacy Clause Does state or congress win? Are powers concurrent or Exclusive? Preemption Process by which Federal trumps State Direct conflicts: Irreconcilable conflict between state and federal Indirect conflicts State law interferes with purpose of federal law Expressed Light regulation Field Heavy Regulation; nuclear basically assumed congress has monopolyCommerce Power

EC KNIGHT (WHOLLY INTRASTATE---DIRECT VS INDIRECT) Holding government cannot prohibit American sugar from buying competitors. Cannot regulate goods before they move across state lines. Manufacturing is intrastate because happens only in that stateoff limits. Dissent (Harlan) Monopoly can harm other states-- Its a commodity that everyone uses. Can create a price increase across the board. If congress goal is to ensure the free flow of goods across state line then one way to pursue that goal is to remove any competitive constraints Could lead to a coordination problem. (Back then people never moved-everything happened in state) FORMALIST APPROACH Corresponds with originalism Rigid approach

Shreveport Rate Case (INSTRUMENTALITIES) Railroads charging higher rates for interstate service than was charged for similar intrastate service When interstate and intrastate transactions are so related Congress wins. Regulation of instrumentalities

Champion v. Ames (COMMERCE=TRANSPORTATION OF GOODS ACROSS STATE LINES) Federal law doesnt allow transportation of foreign lottery tickets. aCongress did not exceed their congressional authority and was within the power of the commerce clause. Majority (Harlan) the goods have value in the form of prize promised to the winner. Lottery tickets were generally regulated as societal pest (gambling) Can regulate goods that are inherently evil Dissent (Fuller) Gives congress a general police power than anything that is taken from one state to another is considered commerce. Should obliterate distinction between interstate and intrastate.

Hammer v. Dagenhart (CAN REGULATE AS LONG AS EVIL) Federal law prohibits children from ages 14-16 to work certain hours Holding: Unconstitutional Majority it does not include the power to prohibit certain kinds of items. Unlike in Champion the goods themselves are harmless not evil save for how they are manufactured. Congress real goal was to prevent child labor. Lend too much to a police power- Formalistic- Distinction between interstate and intrastate Dissent (Holmes) a congressional statute cannot be invalidated solely because it is indirect effects on state activities. Under Commerce Clause can regulate interstate commerce

Schechter Poultry -1935 (STREAM OF COMMERCE) NIRA authorized codes that establish minimum wage and hours. (Schechter bought chickens in NY which were slaughtered and sole in NY) Holding: No Rationale: Things cease to be commerce once they arrive in their destination. Here too much of a local issue to be subject to commerce clause. Schechters activity were not within the current stream of commerce Dissent: Wages have an upstream effect on commerce/. It effects how much they charge and how much people eventually pay.

Carter Coal-1936 (MANUFACTURE VS COMMERCE) Bituminous coal conservation act required coal companies to engage in collective bargaining with miners. Can congress regulate wage/hours? Holding: No-Unconstitutional Rationale: Congress can only regulate commerce. Mining is only a manufacturing activity and its impact is not sufficiently direct to make it part of commerce regulated by Congress. REJECTS magnitude: "The distinction between direct & indirect effect turns not upon the magnitude of either the cause or the effect but entirely upon the manner in which the effect has been brought about" NRLB v. Jones & Laughlin-1937 NLRA gives employees right to unionize and collective bargain. Holding: Constitutional Rationale: Strikes can have an effect on the economy as a wholesteel industry is huge. Jones & Laughlin were in many different state multistate activities are closely connected to interstate commerce that congress should not be denied the power to regulate. Should be determined on a case-by-case basis and on a close & substantial relationship to interstate commerce. This would have an immediate effect on the economycommerce

US v. Darby (1941) Federal law restricted the minimum wage. Holding: OVERRULES HAMMER Rationale: Pretext is unimportant as long as it regulates interstate commerce. Based on whether it has a CLOSE AND SUBSTANTIAL RELATIONSHIP. Should be more deferential to congressfair competition is legitimate basis for regulating commerce. Regulation of interstate commerce is enough. Not going to follow the rabbit hole of figuring out whether it really regulates inter commerce (looking for congressional purpose) Is the stat legitimate within the scope of the commerce clause? //Does it violate some external constitutional provision? Court embraces a minimal meaning for the 10th amend. States that all that is not granted is retained. Court is suggesting that 10th doesnt create any additional fed limits on national power apart from what it is given

Wickard v. Filburn 1942 (AGGREGATIONIS THERE ANY COMMERCIAL ACTIVITY) Statute that set quotas for wheat growth Holding: Local activities and not regarded as commerce government can regulate as long as substantial effect on ISC. NO more FORMULISM Rational basis review.. Is there a basis for thinking this would have an effect on the economy. Defer to congress under commerce clause. The home consumed wheat competes with the wheat on the marketreduces demand. Realism Stream of commerce should extend to all aspectsFormulism is bunk. Things are more inherently interconnected Purpose of commerce clause Create free and open interstate system Ensure fair market from distortions of competitiveness

Commerce AND Civil Rights 186513th amendment passed 1875Civil Rights Amendments Birth of the state action doctrine Heart of Atlanta Title II of 1964 Civil Rights Act prohibited discrimination in segregation in places of public accommodation. Holding: Constitutional Rationale: Connection between Motel industry and interstate commerce. It prevents segments of the population from traveling (travel is a form of commercetourism) Can lead to a Moral Problempeople can view other states as unfit (effect other economic decisions people would choose nondiscriminatory places to travel. Discrimination interferes with mobility of labor and capital.)Katenbach v. Mclung 1964 Civil Right act. (Restaurant in AL was discriminatory) Holding: Constitutional under Commerce Clause Rationale: Restaurant and food service industry has strong connection to interstate travelthus commerce. SIMILAR TO DARBY: Pretext is unimportant as long as there is a conceivable rational basis to justify the rule under constitutional questions. SIMILAR TO WICKARD: single effect of a restaurant wont have an impact but when taken as a whole but aggregate affect could burden commerce.

Limits of the Commerce Clause US vs. Lopez (1995) Gun free school zone act. Holding: Unconstitutional beyond scope of Commerce Clause Rationale: Direct federal criminalization of conduct. Commerce clause only allows regulation of 1) channels/instrumentalities 2) things and people in commerce 3) activities that are substantially related or effect. Fails 3rd. not substantially related to commerce. Cannot regulate non-economic/non-commercial activityrequires court to pile too inferences together in order to get result. Constricts federal power of commerce clause not as much deference as DARBYSlippery slope argument concern for future consequences dont want congress to eventually control all aspects of commerce and states have nothing left to Regulate Carving out sphere of non-commercial activities. (MORE FORMULISTIC) Sebelius Affordable healthcare act Holding: Individual mandate unconstitutionalREGULATION OF INACTIVITY. Majority (Rehnquist): Congress cannot regulate inactivity even if it has a substantial effect on commerce. (Everyone eventually has healthcare costs as some pointend up with a cost shifting problems) Inactivity falls within non-commercial stuff. Even in WICKARD activity regulated was commercial (more about forcing wickard to purchase in the open market). Court concerned that it would empower congress make decisions for people. (Cannot regulate future commerce) Concurring (Kennedy/OConnor) Modified theory (process view) Political safeguards dont work all the time. States already have adequate legislative power to deal with presence of guns in school. States should have discretion to experiment with potential solutions to problem. Implied Limits10th Amendment10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. National League of Cities v. Usury Commerce Clause is plenary Striking down application of statute on federalism grounds Structural inference (SOP) Be inconsistent to allow judiciary to resolve essentially political matters. (PQ doctrine noninterference with others) Laws that regulate internal workings of state governmentSlippery Slope Hodell (Test adopted afterward to tell whether statute unconstitutional on federalism grounds) Regulation of state as states State sovereignty (matters attributable to that) Directly impair states ability to function in TRADITIONAL matters NO overriding interest by Fed. Statute Dissent (Brennen) Commerce power is plenary has to do so through political process. State control their own destinyconsent away autonomy. Dissent (Stevens) Federal actions are no constitutional vs. advisable on policy grounds. NLC lasted 8 yearsDied in GarciaGarcia v. San Antonio Can FLSA decision be applied to regulate municipal workers Holding: OVERRULES NLC Blackmun: Process theory. Traditional function test is unworkable. Test was too indeterminate/malleable. Allowed for judges to result oriented.. Courts dont need to do anything about federalismleave it to congress as long as statute is dully enacted. Political Safeguards (Wexler Political culture national action would require extraordinary justification. State role/compositionelectoral college and swing state phenomenon. Political parties-- broker fed. State relations in way that normal political process doesnt. Influence federal law ven though they answer to constituents. Parties are connective tissue-mechanism to advance federal law 2 threats to state autonomy Vertical aggrandizement Federal expansion --from the federal government itself or from interest groups operating at the federal level Preemption and rules Administrative state--Ton of law is made by federal agencies. Horizontal aggrandizement States increase power at expense of other states. Channels of state influence. Protect against this through bicameralism. Dissent (Powell) Involves non-governmental interests such as special interests groups. Majoritys faith incongress doesnt make sense since congress historically undermined state autonomy. Problems (states are obvious helpers to federal government cannot do everything) Dissent (OConnor) Court will go back to reinforcing hard line distinctions between federal/states just like EC KNIGHT. Political safeguards dont work

Anti-commandeering DoctrineCannot tell state government exactly what to do.Commandeer vs. Conditional Spending/Conditional PreemptionIf it s condition stats can refuse and take consequencesstate doesnt actually have a choiceNY v. US Purpose of the Radioactive waste policy Amendment of 1985 was the promote availability of disposal sites to low level radioactive waste. Act provides 3 incentives 1) States in compliance 2) States with approved site could deny access to their sites from other states 3) Stets that fail to meet guidelines would have to take title of waste and accept any consequences. Is the low-level radioactive waste policy amendments unconstitutional? Holding: YES (CONGRESS CANT COMMANDEER STATE GOVERNMENT) Majority (OConnor) 1) Upheld because it is a Monetary incentive 2) Refusal of waste upheld states dont have to anything from other states 3) UnconstitutionalForcing states to take title and be liable or comply with regulation is making states and administrative agent of the federal government. Congress may not commandeer state legislature for purpose of promulgating its own regulation--would erode Political accountability and SOP Printz Brady Handgun Act mandated the establishment if a national system for performing background checks on gun purchasers. Holding: CONGRESS CANT IMPOSE UNDUE BURDEN Majority (Scalia): Worried that Administrative agencies (function of executive) making the law. Executive oversee enforcement not creation of law. People will blame the state police if they are dissatisfied with the requirements for getting a handgun license After printz & NY anti-commandeering becomes a fairly clear limitationEnforcement of Reconstruction Section 5 (14th Amendment) acting under the Fourteenth Amendment, 5, Congress can grant remedies against state action that violates the Fourteenth Amendment, 1, if it makes its intent to abrogate state immunity unmistakably clear. The Court has become increasingly restrictive in its interpretation of Congress enforcement powers under the 14th Amendment, 5. Congress may not abrogate Eleventh Amendment immunity using its Commerce Powers; Provided alternative before the commerce power was use to promulgate civil rights legislation. Diminished by WICKARD AND HEART OF ATLANTA.Section 5 can Remedy Prevent future violations Substantive equalityissuing national legislation that makes everyone equalwould be socialismMust ask Are there RIGHTS Is there a VIOLATION WHO DECIDES? ABROGATION?Under Boerne is it CONGRUENT AND PROPORTIONAL

Katzenbach v. Morgan Provision of voting rights act specified that no state could deny its residents the right to vote on the ground of no knowing English. NY enacted a law that disenfranchise PR residents because they didnt know English. Holding: Section 5 allows congress to pass legislation necessary to further the ends of the amendment. Upheld as long as there is a rational basis. Rational: NY argues that Congress can only override state law when it is in direct conflict with 14th Amendment.NO. Satisfied 4 Questions. Rights: Guaranteed a right to vote Violation: are being denied equal protection as it would disproportionally affect non-English speakers. Who decides: Congress decided to pass a statute they believed was sufficient. Abrogation: intent and valid exercise of congressional power Reasons for: Visibility of victims, deterrence, corrective justice. Two conceptual accounts state sovereignty Overriding Amendment theoryidea that later adopted constitutional amendments might override 11th amendment Shadow 11th Amendment theorymost forms of state sovereign immunity not mandated by 11th amendment but more prudential justificationsBoerne v. Flores Church doesnt want to be subject to zoning law. Sues under religious freedom restoration act. Act prevents the government from substantially burdening persons exercising religion. (Unless the state can provide a very special justification. Has to prove that its law would satisfy strict scrutiny) Holding: Courts do not have power to redefine scope that is different that the way the SC would. CONGRUENT AND PROPORTIONAL Permissible exercise Citizen state diversity provisions of Art 3 -- suggests that the constitution as originally enacted envisioned situations in which states could be sued by private plaintiffs in fed courts. Chisolm v. GA 11th amendment repudiated. In order to abrogate based on Section 5 of 14th amendment the abrogation must be both congruent and proportional to actual violation of judicially recognized 14th Amendment Section 1 rights Congress does not have the power to redefine the scope of the rights protected by the Civil War amendments in a way that is different from the way the Supreme Court would define their scope. However, Congress can seek to remedy or to prevent constitutional violations. Thus, Congress may prohibit conduct that is not otherwise unconstitutional as long as the legislation is congruent and proportional to the constitutional violation as defined by the courts. Congress can regulate more broadly and has deferential power when dealing with a Reconstruction Amendment. Congress cannot make substantive changes in constitutional law, but it can expand rights(not dilute themBoard of Trustees of Alabama v. Garrett Woman seeks accommodations in work period to undergo cancer treatment. Instead they force her into a lower paying job. Sues under American with Disability Act--make reasonable accommodations for disable workers Holding: NO Preventative and Remedial. Congress must identify a pattern of discriminatory behavior of judicially recognized constitutional right then create a statute that is plainly designed to ameliorate the violation of those constitutional rights and devise a remedy that is tailored to that pattern For particular kind of violation congress has tried to ban. City of Cleborne case which laid out Rational Basis Review (Cleborne people with mental disabilities sued and won--Rational Basis Review. (For the court to find violation of EPC must convince court that there is no rational basis for stance court took) Abrogation of state sovereign immunity was ineffective since the substantive provisions of the ADA were not congruent/proportional. ADA created rights beyond those mandated by the 14th amendment. By seeking to abrogate went beyond its constitutional powers. IS there a hypothetical ration reason? (Such as Cost/efficiency) Some distinctions are subjected to higher scrutiny Intermediate Strict

Dormant Commerce Clause Doctrine

DORMANT COMMERCE CLAUSE applies when congress is silent on an issue (it has neither supported nor prohibited action by several states. Inquiry: What would congress have done Purpose: Prevent state infringement of ISC?

DOES THE ACT REGULATE COMMERCE? IS IT DISCRIMINATORY AGAINST ISC? Facially/Intentionally (Philly v. NJ) Presence of geographic boundary? Compelling state interest? No or Nearly no discriminatory alternative Primary effects Discrimination is main purpose? (Hunt v. WA) Compelling state interest? Theories Political Interstate harmony Free Market Commerce cl. IS THERE AN EXCEPTION? Quarantine Market participant Congressional permission UNDULY BURDENSOME Neutral incidental burdens- Pike balancing test- in state benefit vs burden to out of state

Rationale (Thematic Question) Exclusive CC power Gibbons- Court held that commerce is exclusive right to congress and disempowers states from regulation--No LONGER WORKS Interstate harmony If state can enact protectionist measures that undercut viability of other states Preventing obvious damage against other stats good for stability and functioning of constitution state system.

Is it Rationally related to a state goal?Discriminatory against ISC (STRICT SCRUTINY) Facial/Intentional virtually per se Philly vs NJ Statute bans importation of NJ waste. Aggregate effect on another states because they would have produced it anyway. Discrimination of out of state operators to prop up in stateproxy for intent. Compelling state interest/ NO or nearly no less discriminatory alternative. Primary Effects Discriminatory purpose is the main reason. Hunt v. Washington State Apple Purpose of the statute was to discriminate against WA apples. Effect of NC label policy is that it strip WA of their market advantage. Court concluded that NC statute had discriminatory intent Can look to legislative historywhich is murky State can prevail if shows exceedingly compelling state interest to promote law. Here protection of fraud in apple market NO because wholesalers buy apples not average consumers.

Unduly Burdensome Neutral with incidental burdens Pike balancing test: Instate benefits vs burden on out of state commercial actors. Kassel vs. Consolidated Freight Iowa law that barred trucks longer than 55 feet form using the state highwyas/ It is facially neutral but puts signitifcan burden on ISC. IA legislature: NO real difference between truck after a certain size. Out of state truckers bear a significant portion of the cost (benefit in state truckers more than out of state)Is there an Exception Quarantine The mere introduction would create a public and safety harm differ that set of productshere FACIAL GEOGRAPHIC DISTINCTION OK--Main v. Taylor Frame state interest to make it most compelling. Direct threats health or public safety/public school system Serious risk to health Different risk posed by similar products Market Participant Act as a market participant and engage in economic transactions (EX: state enters into a contract to ass onto a schoolpurchase and process something) Turnkey (can discriminate for specific category of transactions in which they are acting CANNOT discriminate in corollary marketmanipulation of another market no in the business which they are engaged. Congressional permission exception States can discriminate in any way imaginable if congress passes statute or some other legislative action that permits. Only expressed permission will work

Distribution of PowerPresidential power issues are qualitatively different Executive power characterized Commander in chief Congressional war powers Appointmentsuperior and inferior officers to executive branch Senate confirmations Take Care Power Legislative hindranceonly effective as law allows it to be Injunctionlaw faithfully executed Diplomacy Power Senate Confirmation (ambassadors)/Ratifications (Treaties) Enter into treaties with foreign nationsFacilitates SOP; promotes efficiency and accountability, prevents tyranny by separating the creation of law form the enforcement of the law. President has not right to make law he may only carry them out. Presidential power must stem from an act of congress or from the constitution. Jacksons Zone of Twilight fluctuate between three categories.

Does the constitution or Congress expressly grant executive branch the power? IF YES President can Act IF NO Unconstitutional

APPLY JACKSONS CONCURRENCE. has congress spoke on this issue (non delegation doctrine)

Youngstown Sheet & Tube Co. Sawyer During the Korean, war dispute between steel industry management and labor that led to strike. Labor union told Truman they would strike if demands were not met. Truman concerned it would cripple economy issued an executive order to take possession of the steel industry and transferred it to Sec. of Commerce. Steel industry sued secretary of commerce Non-delegation Doctrine Predicated on the idea that congress in delegating policy-making authority there should be a constitutional limit that congress cannot cross-giving power to executive. Cannon of statutory interpretation Read delegations of authority made by congress as if they are not impermissible (if congress provides some intelligible principle to guide agency in exercising power wont be struck down) Statutory alternatives Truman could have Wage stabilization proceeding (non-binding moot) Injunction under Taft Hartley act (convene board of inquiry-mediator but findings arent compulsory) Selective service act (Seize producers to pay wasnt clear that it applied at the time) Defense of production act (seize property when necessary for national defensejust compensation required) Seize Industry (ONE CHOSEN)

Big question: Statutory alternative has president acted under some particular authority and stature that permit president to take that action. Government argues it constitutional Commander in chief NO too attenuated--Construe power that affects military and would be problematic Jackson (concurrence) Allow president expand domestic powers with military. Allow president to act unilaterallyno monopoly of war powersthey are concurrent Constitutional SOP secure liberty against tyranny and make workable structure. Think about question of executive power relationally. (tripart view) Category 1: President acts with congressional authorization (express/implied creates strong presumption) Find that federal government as a whole constitutionality to do actions Category 2: Presidential action where congress is silent (there has to be independent Art. 2 power. Zone of twilight where congress has concurrent power constitutionality will depend on importance of events/nature/severity of problemreview actions on a case-by-case basis. Category 3: Presidential action opposition of congress (President power at lowest ebb must be power that is exclusive to president no concurrent authority)-- this category 3 caseWould need independent authority Take care power The president has expressly failed to enforce statutory alternativenot execution of the law under the take care power but rather creation of the law Frankfurter (concurrence) Concerned with departmentalism answer. The executive and congress have duties to follow the constitution. Are entitled to some degree of deference. Look at past action to see if permissible to seize industry. Deferential usually when it comes to war and national security. (problem with relying one executive precedent because there nonwould have to conclude that executive thought about issue and its constitutionality Err on the side that is not within the executive Two factors combined gives good indication that congress does not want president to seize industrial sector in this way.