SYLLABUS AND ASSIGNMENTS

COURSE: Constitutional Law: Federalism and the Separation of Powers

SEMESTER: Fall 2014
TIME: Tuesdays and Thursdays from 3:30 p.m. to 5:00 p.m.
LOCATION: Room 107
PROFESSOR: Chad DeVeaux

I. REQUIRED TEXT. The required text must be brought to all classes.
Choper, Fallon, Kamisar & Shiffrin, Constitutional Law: Cases, Comments, Questions
(11th ed. 2011).
II. OPTIONAL TEXT.
Christopher N. May & Allen Ides, Examples and Explanations: Constitutional Law:
National Power and Federalism.
III. CLASSROOM PARTICIPATION. Legal education is a cooperative venture. You
must be prepared to participate in each class. You will not be down-graded for
venturing an incorrect answer. One of the best ways to learn how to think and analyze
like a lawyer is to take chances, put your ego on the line, and venture a reasoned view of
how a matter should be resolved. Nevertheless, if you pass or if you are
demonstrably unprepared, you will lose 0.1 grade points (on a 4.0 scale) on your final
grade.
1
See IV. Attendance, infra. Moreover, when you pass or are demonstrably
unprepared, I will call on you in each succeeding class until you satisfactorily
demonstrate you are prepared.
IV. ATTENDANCE. Attendance and participation are required for all classes.
2
Being on
time for class is a simple courtesy to your fellow students. Coming late to class counts
as a class absence.
3
Leaving early or leaving for a prolonged period of time during
class without prior permission also counts as a class absence. Students may have no
more than four class absences (out of the twenty-eight class periods we meet). Students
who miss more than the permitted number of classes will be administratively dismissed

1
See footnote 3, below. Because the schedule and class coverage of reading assignments is
relatively fluid, you may be responsible for material we cover during two succeeding class
periods. It is your responsibility to keep track of how far we have gone each week and be
prepared for cases that you may have read a week or even two weeks before. See XI.
2
Each student, however, may be excused for any reason (or no reason at all) from participating
in an attended class once during the semester by requesting an excuse from me prior to
commencement of class that day. If you request an excuse by email, you must send the email by
6:00 p.m. the day before class. Unless I confirm your request before class, however, you will not
be excused. This one free pass does not allow you to take an extra absence.
3
In addition, you will be the first person I call on. I f you are unprepared, you will also lose 0.1
grade points (on a 4.0 scale) on your final grade. See I I I , above.
2
from the class. You alone are responsible for keeping track of your absences. You will
not receive a warning that you have reached the allowed number of absences.
V. GRADING. Course grades will be based on two elements: (1) Class Participation (your
grade may be reduced based on class participation, as described in III. Class
Participation, above); and (2) a Final Examination, given during the final examination
period. Absent adjustment for class participation, the final exam will comprise 100% of
your final course grade. The final exam will be closed book.
VI. COURSE HOMEPAGE. I have set up a course page on TWEN (a course web page). I
will post course information on that site, including announcements of assignments,
updates to the Syllabus, handouts and practice questions and exams. We will also be able
to conduct further class discussion on-line. Everyone must enroll in the on-line course.
I regularly email students with information relevant to the course. You are responsible
for signing up with a valid email address that you check regularly. I will distribute
instructions for enrolling by Week #2. Each of you will be responsiblefor signing up
for the course and checking the page on a regular basis. In addition to the
Constitutional Law web page, everyone must enroll in my Appointments web
course, which will enable you to sign up for office hours. See VII, infra.
VII. OFFICE HOURS. My office hours are Tuesdays and Thursdays from 1:00 p.m. to
3:00 p.m. To make an appointment during these times you will need to enroll in my
Appointments web course. For appointments during non-office hours, you must
arrange with me directly. You can leave messages at 208-639-5406. Please leave your
name and phone number. You can also reach me by email at cdeveaux@cu-
portland.edu.
VIII. EMAIL POLICY. I do not answer substantive questions via email. I am more than
happy to answer questions before or after class, during reviews, and during office hours
or by appointment. Experience has taught me that what students think of as a simple
question often involves a lengthy and nuanced discussion that is not easily done via
email. Nor do I respond to questions about matters that have already been addressed in
this syllabus, in class, via email or, posted on the web-course page. If you ask such a
question, do not expect a reply, as it would take just as much time to explain that the
information sought has already been provided as it would to provide it again. If after
due diligence, you cannot find the information sought, you should ask a classmate.
IX. TAPING CLASSES. Taping of classes is strictly prohibited without the express
permission of the professor. Taping classes without permission inhibits classroom
discussion. Your classmates are less likely to participate in class if they fear their
comments are being recorded for posterity.
X. PREPARING FOR CLASS. Please note that the Course Schedule on the following
pages is divided into five columns: Week, Dates, Pages, Topic and Contents. The first,
second and fourth columns are self-explanatory. The Pages (third) column gives you
the range of pages within which the specific reading assignments are contained. The last
column sets out the minimal reading you must do for each class, including the notes after
the main cases that you need to read and consider.


3
XI. COURSE SCHEDULE. Please note that class coverage of reading assignments is
fluid, i.e., we will not always cover all of the assigned material during the scheduled
class periods. It is your responsibility to keep track of how far we have gone in the
previous class and make sure you are prepared. If you have additional preparation time,
it is better spent reviewing the material for the next up-coming class. I strongly urge
you not to read more than one week ahead.



W
E
E
K
DATE(S)
4


PAGES
5
TOPIC

CONTENTS

1 8/26
1763-64;
1-24
(24 pgs)

JUDICIAL REVIEW
JUDICIAL REVIEW (1763-64; 1-24):
U.S. CONST. art. III;
Marbury v. Madison (SCOTUS possesses the
power to say what the law is)

1 8/28
24-47
(24 pgs)


JUDICIAL REVIEW;
POLITICAL QUESTIONS
JUDICIAL REVIEW, contd. (24-29):
Martin v. Hunters Lessee (SCOTUS has
power to review state ct opinions re: fedl law);
Cohens v. VA (SCOTUS review of state
criminal convictions);
POLITICAL QUESTIONS (29-47):
Nixon v. US (matters textually committed to
coordinate branch);
Gilligan v. Morgan (Natl Guard operations);
Pac. States Tel & T. v. OR (determining what
constitutes a republican form of govt);
Baker v. Carr (malapportionment of electoral
districts);
Goldwater v. Carter (determining whether the
President can unilaterally terminate treaty)












4
The dates indicated are estimates only.
5
All page references are to the Choper & Fallon casebook unless otherwise indicated.
4
2 9/2 & 9/4
1764-64;
1760-60;
47-64
(18 pgs)

CONGRESSIONAL
REGULATION OF
JUDICIAL REVIEW;
DISCRETIONARY
REVIEW;
PREREQUISITES TO
FEDL JURISDICTION
& JUDICIAL REVIEW
CONGRESSIONAL REGULATION OF JUDICIAL
REVIEW (1764-64; 1760-60; 47-55):
U.S. CONST. art. III, 2, cl.2;
U.S. CONST. art. I, 8, cl.9;
Ex parte McCardle (Congress has limited
power to revoke SCOTUSs jurisdiction);
US v. Klein (Congress cant use control over
jurisdiction to alter a rule of decision);
Boumediene v. Bush (Congress cannot strip
Gitmo detainees of habeas rights w/o invoking
habeas suspension clause);
DISCRETIONARY REVIEW (55-61):
MD v. Baltimore Radio Show (denial of
certiorari cannot be interpreted as anything
other than sign that Justices deemed it
undesirable to review opinion);
PREREQUISITES TO FEDL JURISDICTION &
JUDICIAL REVIEW (61-64)

3 9/9 & 9/11
1700-33
(34 pgs)

LIMITATIONS ON
JUDICIAL POWER;
ADVISORY OPINIONS;
STANDING

LIMITATIONS ON JUDICIAL POWER (1700-02);
ADVISORY OPINIONS (1702-06);
STANDING (1706-1733):
Allen v. Wright (citizens do not have standing
to sue fedl agency b/c of influence its
determinations have on others);
US v. SCRAP (environmental damage);
Heckler v. Mathews (Equal Protection);
LA v. Lyons (redressability);
Lujan v. Defenders of Wildlife (congressional
power to create standing);
MA v. EPA (State standing);
VT Agency of Natural Res. v. US (qui tam
actions);
Frothingham v. Mellon (taxpayer standing);
Flast v. Cohen (taxpayer standing);
Valley Forge Christian Coll. v. AUSCS
(taxpayer standing);
Raines v. Byrd (legislators standing)







5
4 9/16 & 9/18
65-78;
1760-60;
82-85
(18 pgs)

MOOTNESS;
RIPENESS;
LEGISLATIVE
POWERS;
COMMERCE POWER
MOOTNESS (1734-38):
DeFunis v. Odegaard (mootness exceptions);
US Parole Commn v. Geraghty (class actions);
RIPENESS (1738-43):
United Pub. Workers v. Mitchell (fedl
employees challenge to statute barring them
from participating in political campaigns was
not ripe b/c they had not participated in a
campaign in violation of the act);
LEGISLATIVE POWERS (65-78):
McCulloch v. MD (Necessary and Proper
Clause);
US v. Comstock (Necessary and Proper
Clause);
COMMERCE POWER (1760-60; 82-85):
U.S. CONST. art. I, 8, cl.3;
Champion v. Ames (upholding fedl ban on
trafficking of lottery tickets)

5 9/23 & 9/25
88-103;
103-08;
HANDOUT
(27 pgs)

COMMERCE POWER;
USE OF COMMERCE
POWER TO ENACT
SOCIAL-JUSTICE
LEGISLATION
COMMERCE POWER, contd. (88-103):
Hammer v. Dagenhart (striking down fedl
child-labor ban);
NLRB v. Jones & Laughlin Steel (upholding
fedl power to intervene in steel strike);
US v. Darby (upholding fedl minimum wage);
HANDOUT: Wickard v. Filburn (activities
that substantially affect interstate commerce);
USE OF COMMERCE POWER TO ENACT SOCIAL-
JUSTICE LEGISLATION (103-08):
Heart of Atlanta Motel v. US (public
accommodations laws);
Katzenbach v. McClung (public
accommodations laws)

6 9/30 & 10/2
108-26;
HANDOUT
(29 pgs)

CONTEMPORARY VIEW
OF COMMERCE POWER
CONTEMPORARY VIEW OF COMMERCE POWER
(108-26):
US v. Morrison (striking down Violence
Against Women Act);
Gonzales v. Raich (upholding fedl marijuana
ban; reaffirming Wickard);
HANDOUT: Natl Fedn of Indep. Bus. v.
Sebeliusexcerpt 1 (Commerce Cl. cant be
used to conscript unwilling purchasers into
engaging in transactions)

6
7 10/7 & 10/9
1760-60;
132-48;
148-52;
HANDOUTS
(41 pgs)

TAX POWER;
SPENDING POWER;
FOREIGN-AFFAIRS
POWER
TAX POWER (1760-60; 132-36):
U.S. CONST. art. I, 8, cl.1;
Bailey v. Drexel Furniture (striking down
child-labor tax);
SPENDING POWER (136-48):
US v. Butler (striking down processing taxes as
violative of 10th Amend.);
Steward Mach. v. Davis (upholding
unemployment compensation law);
Helvering v. Davis (meaning of general
welfare);
SD v. Dole (upholding law making fedl hwy
funds conditional on state drinking age);
HANDOUT: Natl Fedn of Indep. Bus. v.
Sebeliusexcerpt 2 (upholding public mandate
under tax power, but striking down Medicaid
expansion as abuse of spending power);
FOREIGN-AFFAIRS POWER (148-52):
MO v. Holland (upholding Migratory Birds Act
under foreign-affairs power);
HANDOUT: Bond v. US (limiting Congresss
ability to use foreign-affairs power to regulate
purely intrastate criminal acts)

8
10/14 &
10/16
1762-63;
176-94;
(23 pgs)

PRESIDENTIAL
POWERS;
WAR POWER
PRESIDENTIAL POWERS (1762-63; 176-90):
U.S. CONST. art. II;
Youngstown Sheet & Tube v. Sawyer (striking
down Presidents seizure of steel industry);
Dames & Moore v. Regan (zone of twilight);
WAR POWER (190-94):
US v. Curtiss Wright (foreign-affairs power
vests President w/ plenary powers in the
foreign-affairs field)

9
10/21 &
10/23
202-06;
HANDOUTS
(41 pgs)

WAR ON TERRORISM
WAR ON TERRORISM (202-06):
Hamdi v. Rumsfeld (detention of enemy
combatants);
Hamdan v. Rumsfeld (striking down executive
order authorizing military trials);
HANDOUT: Ex parte Milligan (open ct rule);
HANDOUT: Ex parte Quirin (military cts
have jurisdiction over enemy combatants);
HANDOUT: DeVeaux, Rationalizing the
Constitution, 42 AKRON L. REV. 13


7
10
10/28 &
10/30
220-45;
249-59;
1757-58;
259-62
(41 pgs)

RELATIONSHIP B/T
LEGISLATIVE &
PRESIDENTIAL
POWERS;
APPOINTMENT OF
OFFICERS;
EXECUTIVE
PRIVILEGE;
IMPEACHMENT
RELATIONSHIP B/T LEGISLATIVE &
PRESIDENTIAL POWERS (220-32):
INS v. Chadha (legislative veto prohibited);
Clinton v. NY (line-item veto prohibited);
APPOINTMENT OF OFFICERS (232-45):
Morrison v. Olson (independent counsel);
EXECUTIVE PRIVILEGE (249-59):
US v. Nixon (compelling Pres. Nixon to
produce Watergate tapes);
IMPEACHMENT (1757-58; 259-62):
U.S. CONST. art. I, 2-3

11 11/4 & 11/6
263-82;
306-07;
HANDOUTS
(36 pgs)

DORMANT COMMERCE
CLAUSE
DORMANT COMMERCE CLAUSE (263-69):
HANDOUT: DeVeaux, Lost in the Dismal
Swamp, 79 GEO. WASH. L. REV. 995excerpt 1;
Gibbons v. Ogden (genesis of DCC doctrine);
Cooley v. Bd. of Wardens (state may enact
regulations addressing local peculiarities);
PROTECTIONISM (269-82):
Baldwin v. G.A.F. Seelig (protectionist laws);
Dean Milk v. Madison (public-safety pretext
wont save protectionist law);
Philadelphia v. NJ (per se rule of invalidity);
ME v. Taylor (compelling local interest);
EXTRATERRITORIAL REGULATION (306-07):
HANDOUT: Brown-Forman Distillers v. NY
State Liquor Auth. (striking down law
regulating out-of-state beer sales);
HANDOUT: DeVeaux, Lost in the Dismal
Swamp, 79 GEO. WASH. L. REV. 995excerpt 2














8
12
11/11 &
11/13
295-302;
307-14;
282-84;
HANDOUTS
(25 pgs)

DORMANT COMMERCE
CLAUSE
OBSTRUCTIONIST LAWS (295-302; 307-14):
Hunt v. WA State Apple Adver. Commn
(striking down product-labeling law);
MN v. Clover Leaf Creamery (incidental
benefits to in-state enterprises);
S. Pac. v. AZ (striking down train-length law);
Bibb v. Navajo Freight Lines (striking down
mud-flap law);
HANDOUT: Pike v. Bruce Church (balancing
test for obstructionist state laws);
CONGRESSIONAL AUTHORIZATION OF STATE
REGULATION (282-84):
Prudential Ins. v. Benjamin (state may enact
regulations discriminating against out-of-state
commerce when authorized by Congress);
HANDOUT: Hillside Dairy v. Lyons
(authorization to regulate construed narrowly)

13
11/18 &
11/20
322-28;
335-46;
1768-68;
328-35;
156-57;
165-75
(38 pgs)


STATE AS MARKET
PARTICIPANT;
PRIVILEGES &
IMMUNITIES CLAUSE;
STATE POWER TO
TAX;
STATE IMMUNITY
FROM FEDL
REGULATION
STATE AS MARKET PARTICIPANT (322-28):
Reeves v. Stake (market-participant exception);
STATE POWER TO TAX (335-46):
Complete Auto Transit v. Brady (DCC limits
on state power to tax);
PRIVILEGES & IMMUNITIES CLAUSE (1768-68;
328-35):
U.S. CONST. amend. XIV, 2, cl. 2;
United Bldg. & Constr. Trades v. Camden
(Priv. & Imm. Cl. applies to municipalities);
STATE IMMUNITY FROM FEDL REGULATION
(156-157; 165-75):
MD v. Wirtz (Congress can require payment of
fedl minimum wage to state employees);
Print v. US (anti-commandeering principle)

11/24-11/28

Fall Break



14 12/2 & 12/4

CATCH UP & REVIEW

TBD
FINAL EXAM REVIEW
SESSION

TBD
FINAL EXAM