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Theme of Nation Building

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments of this Constitution, or, on
the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments,
which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures
of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of
ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one
thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first
article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.
Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within,
the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof
for beverage purposes is hereby prohibited.
Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures
of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the State by the

How many methods are there to amend the United States Constitution? [Albert: 4]

Both houses of Congress, by 2/3rds vote, propose an amendment that becomes effective when ratified by 3/4 of state
Both houses of Congress, by 2/3rds vote, propose an amendment, and then ratified in special conventions in 3/4 of states.
Amendment is proposed at a National Convention when requested by 2/3 of state legislatures, and then ratified by 3/4 of
Amendment is proposed at a National Convention when requested by 2/3 of state legislatures, and then ratified by special
conventions held in 3/4 of the states.

Is anything in the United States Constitution unamendable? Here are some (international) examples:

The republican form of government shall not be the object of any amendment. Constitution of France, Title XVI, Article 89
The republican form of the state may not be changed by way of constitutional amendment. Constitution of Italy, Title VI,
Section II, Article 139 (1948).
Amendments to this Basic Law affecting the division of the Federation into Lnder, their participation on principle in the
legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible. German Basic Law, pt. IV, art.
79(3) (1949).

So what about in America?

1. Until 1808: Two provisions regarding a census based taxation (related to slave trade).
2. Equal Suffrage Clause: Its impossible to imagine it being ever being amended, even though the Constitution
permits a state to change its representation in the senate. Why would a state ever agree to give up one of its
senators? De-Facto Unamendable!
a. Article V: no State, without its consent, shall be deprived of its equal suffrage in the Senate.
Dillon v. Gloss (handout, 1921)
Facts: Dillon had been arrested pursuant to the Natl Prohibition Act & was in custody under 26. He was denied his petition for a
writ of habeas corpus, and appealed the denial. Dillon claimed that the 18 Amend was inoperative since it had not been ratified
within the time frame set by the congressional resolution proposing the amendment. He also claimed that the law was not in effect
at the time the crime was committed, nor at the time of his arrest.
Issue: Resolution proposing 18 Amendment imposes expiration date for ratification. Is this constitutional?
Holding [Van Devanter]: Yes. We conclude that the fair inference or implication from Article V is that the ratification must be within
some reasonable time after the proposal [. . .] Whether a definite period for ratification shall be fixed so that all may now what it is
and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine
as an incident of its power to designate the mode of ratification.

In Dillon v. Gloss (1921), how does the National Prohibition Act relate to the 18th Amendment?
Petitioner argues that the 18th Amend pursuant to which the Natl Prohibition Amend declared that it would
inoperative unless ratified within seven years.
Argus that this Natl Prohibition Amend is unconstitutional because it was passed to enforce the 18th Amend.
o Petitioner argues that Congress has NO POWER to limit the deliberation of the ratification process.
What does the Court hold in Dillon?
Holds that Congress has the power to designate a reasonable time and its up to their discretion.
o Albert thinks its a bit narrower: Congress has the right to set an expiration date, BUT the period of time
has to be reasonable.
Coleman v. Miller (handout, 1939)
Issue: KA rejected the Child Labor Amend. In 1925, then ratifies it in 1937, 13 years after it is first proposed. Is this too long a time to
ratify an amendment?
Holding [Hughes]: No. A proposed amendment to the Federal Constitution is considered pending before the states indefinitely
unless Congress establishes a deadline by which the states must act. Further, Congressnot the courtsis responsible for deciding

whether an amendment has been validly ratified. Congress shall determine what is a reasonable amount of time.
Period of deference to Congress (see Commerce Clause

How does Coleman v. Miller (1939) refine the holding in Dillon?

The Court holds that ONLY Congress may determine a reasonable period of time to ratify an Amend & Congress
choice is NOT reviewable by the courts. It is a political question and outside the purview of the judicial branch.
Why do constitutional designers include amendment provisions in constitutions? What are the purposes of
constitutional amendment?
The Constitutional is malleable. The US Constitution is flexible, written in broad strokes, & outlines a basic
structure of government, collective purpose, & citizens rights & responsibilities, with the preponderance of the
details left to be added later by legislative, executive, judicial, & civic actors.


In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court
shall have Original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have Appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Never expressly grants federal courts the power to review the constitutionalist of federal or states laws or
executive actions. But Marshall in Marbury establishes the doctrine of Judicial Review in the most important
case in American history.

How does the Constitution confer upon courts the power of judicial review?
The Supreme Court has the power, implied from Article III, 2 of the Constitution to review acts of Congress,
and if they are found repugnant to the Constitution, to declare them void.
Article III 2 Clause 1: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the
laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting
ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to
which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of
another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of
different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

Should the United States judiciary have the power of judicial review?
Yes. If Congress is allowed to distribute original and appellate jurisdiction of the Supreme Court then the
Constitutional grant of Article III is form without substance.
o Would make the Separation of Powers irrelevant. Congress would have unlimited power
SCOTUS may (& should) engage in Judicial Review to make sure POTUS is carrying out his constitutionally or
congressionally mandated duties (and to make sure those duties are constitutional in the first place) because
rights are created for others.
o Without Judicial Review, decisions that come out of the discretion of the Executive Branch could only be
checked by the political process (people and Congress).
o Without Judicial Review, there would be no Institution to mediate conflicts between Congress and
POTUS, resulting in political CHAOS
Marbury v. Madison (p. 3, 1803)
Facts: William Marbury, an end-of-term appointee of President John Adams to a justice of the peace position in the District of
Columbia, brought suit against President Thomas Jeffersons Secretary of State, James Madison, seeking delivery of his commission.
Issue: Marbury seeks a writ of mandamus to order his judicial commission delivered. Is Marbury entitled to the writ of mandamus
compelling the Secretary of State to deliver the commission?
Holding [Marshall]: Narrowly, yes Marbury is entitled to the writ of mandamus, BUT his case was brought to SCOTUS under the
Judiciary Act of 1789 which is unconstitutional because it legislatively adds to the courts original jurisdiction.
Adding to SCOTUS Original Jurisdiction via legislation violates Article III, Section 2, and Clause 2. Original Jurisdiction can
only be altered through constitutional amendment.
Marburys case was improperly before SCOTUS because of unconstitutional law.
Article III is the Ceiling of SCOTUS Original Jurisdiction
Congress can add to Appellate Jurisdiction
Marshall strikes down Judiciary Act of 1789 as unconstitutional. Federal courts are of limited jurisdiction. Article III is ceiling and
Congress may not expand.

(1) Significance of this case lies in Marshalls creation of Judicial Review, asserting that SCOTUS can exercise
judicial review over the other branches of government.
o Judicial Review: The Constitution is regulatory, not merely aspirationalit controls statutes; and it is
emphatically the province and duty of the judicial department to say what the law is. (To interpret
the Constitution, review Legislation, and Executive Acts.)

Allowing the Judiciary Act of 1789 to increase SCOTUS original jurisdiction would make the
Constitutions enumerations irrelevant
(2) Article III is the ceiling of Supreme Courts jurisdiction.
o Congress cannot EXPAND the jurisdiction of the federal courts.
Albert: Can they redress? Perhaps, answer is probably yes.
o This decision helped establish the principle that Federal Courts are courts of limited jurisdiction
NOTE: Statecraft by Marshallruled for opponent and ostensibly against judicial expansion, while increasing
power of judiciary.
NOTE: First time SCOTUS invalidated a law passed by Congress

Which approach is preferable: The United States model of judicial review or the British model of parliamentary
- The British model (parliamentary model) is much more flexible because the Executive and Legislative powers are
collapsed into one institution.
Pro: Parliament is nice in the sense that things can move swiftly because it reduces the inherent inefficiency of
the separation of powers.
Con: But, the US Constitution was built specifically to create this inefficiency so power could never be
concentrated and political decisions are given appropriate deliberation and everyone generally agrees they
are a good idea.
- Parliament has the final work on Constitutionality. Checks on government are internalized in the political process


This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall
be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be
bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Is the United States Constitution the supreme law of the land?
Yes because of Article VI, Section 2: The Supremacy Clause makes the U.S. Constitution supreme over all laws.
o SCOTUS enforces this by interpreting state court decisions.
o SCOTUS has appellate jurisdiction over state courts.
State court judges are bound by the Constitutionand therefore the judgments of SCOTUS.
NOTE: Federal Government sets the floor (the Constitution sets the floor on citizen rights).
BUT a state court could provide individual rights GREATER than those in the
o SCOTUS has appellate jurisdiction over causes concerning the federal constitution.
Martin v. Hunters Lessee (p. 9, 1816)
Facts: A brit owned land that was taken after independence and wants it back but cant because of VA state law. VA SC says he cant
have it & argues that in regards to Federalism, the courts are co-equal and that they are not inferior to SCOTUS and the Federal
Issue: A Virginia court refused to comply with a ruling issued by SCOTUS. Does SCOTUS have appellate jurisdiction over state court
asking federal questions?
Holding [Story]: Yes.
(1) Article III gives SCOTUS jurisdiction over all cases arising under federal law. Fed is superior to state.
(2) Supremacy Clause: US Constitution binds states judges and Constitutional interpretations should be subject to corrections
by SCOTUS. States judges were thought to be more politically accountable and federal judges could make more independent
(3) Uniformity: Constitution cannot be applied differently in every stateneed a body to make sure that it is applied the same
way everywhere.

What would have happened if Martin was decided the other way?
Chaos would ensue
There would be a lack of uniform application of the Constitution among the several states.

What should be the relevance of public opinion when a judge rules in a case?
Justice Stephen Breyer, in the Big Think video: Only vary rarely would that actually matter. And it cant really influence

your judgment in terms of consequences directly on the court what will the press say? Will they say youre good or bad?
Will they see this is terrible or wonderful you just cannot let it because that is the road to perdition? Were not there to be
popular. Were not there to decide according to the majority. Were not there to decide according to what the press is going
to write. The point of this job is to do your best as a judge. It is a judicial job. It is a job where youre trying to apply as best
you can to apply the law in different circumstances.
John Marshall said, Well the people made the Constitution, and they can unmake it. So ultimately were floating on a sea
of public opinion. And that public opinion does not have to agree with our decisions, but they do have to follow them.
Today people do tend to follow the opinions. They understand, at some level, that 300 million people of every possible race,
religion & point of view to live together, they have to have a way of resolving their problems, and they turn to the law. Now
theres no guarantee that will continue. The court is working at it, but it is an incredible asset, a treasure to the country.
I understand that the court has to maintain standing in public opinion; but the way to do that is not for me to base my
decisions on public opinion.
o Personal Thought: The court has neither force nor will, merely judgment Hamilton, Federalist 78
o The court cannot move too quickly and get ahead of public opinion, or else it risks losing public respect.

Where does the Constitution declare that SCOTUS interpretation of the Constitution is supreme? It is obvious?
It comes from Marshalls opinion in Madison where he entrenched Judicial Review and this review, connected
with Article VI: The Supremacy Clause, create SCOTUS position as supreme interpreter of the Constitution.
NOTE: SCOTUS can only review state court decisions that are related to a Constitutional right or a Federal
question/issue/law. SCOTUS will NOT review a wholly state issue.
NOTE: Once SCOTUS interprets the Constitution, that interpretation becomes part of the Constitutions body of
law. (via stare decisis). Precedent is up to the judiciarys discretion, but it is a foundational principle of common
law systems.
Cooper v. Aaron (p. 11, 1958)
Facts: In response to Brown v. Board of Education (1954), the school board is suing here, and they ask to postpone the coming of the
segregation orderthey say they are preparing for it, and are on the side of desegregation, but they wish to postpone is by 2
years. Why? Because they felt the conditions were unsafe as they currently stand, moreover, this situation would adversely affect
the quality of education
Issue: The governor & legislature of the state of Arkansas defy the holding in Brown. Must state officials obey federal court orders
resting on SCOTUS interpretation of the Constitution?
Holding [Black]: Yes. SCOTUS has last word on constitutional interpretation and when they decide something, you cannot go against
it. The Federal Courts have the authority to review state laws and state officials actions.

Article VI: The Supremacy Clause is the grounding of the courts decision.
o It is emphatically the province and duty of the judicial department to say what the law is. Quoting Madison.
o It follows that the interpretation of the 14th Amendment enunciated by this Court in the Brown case is the
supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States
o No state legislature or executive or judicial officer can war against the Constitution without violating his
undertaking to support it.
o If the legislatures of the several states may, at will, annul the judgments of the courts of the United States,
and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.
Quoting Marshall in US v. Peters.

How does SCOTUS enforce its decisions?

Public Acceptance: The court doesnt have an army; as a result, in desegregation cases like Cooper, the Court
frequently rests on the support of the legislature and representatives.

Support is found in elected officials. So if public support is so far away from a ruling, how will the Court
uphold its ruling?
And in the end, the state officials themselves must enforce the rulings as well. In this situation, Eisenhower uses
the National Guard to aid the Arkansas Nine. So here, the court gains it powers through the president using
federal agents to enforce its decision.
While the court may not conduct a public poll before it rules, it seems that it, must, at least somewhat, consider
public opinion before it renders a decision.

Should state officials have an obligation to obey SCOTUS when the Courts decisions cause unrest in the state?
- SCOTUS decisions become part of the body of law of the Constitution
- To defy SCOTUS ruling is to defy the Constitution
Is the Repeal Amendment a good idea? [I say no]
Authorize 2/3 of states to express their desire to repeal federal law. We disagree with this law. [28th
Amendment] And then when 2/3 or more of the states agree with this, the law would be repealed.
o Lou Dobbs clip: Would return power to the local and state level and diminish the federal government.
o Rep. Rob Bishop (R) Utah: Wants the states to have a better balance in government.
Would this be constitutional under Cooper v. Aaron?
o RA: Not sure if its unconstitutional under Cooper.
o Imagine the existing congress is opposed to the Citizens United decision. That congress could
collaborate with the states to overturn this decision under appeal amendment.


Practical Limitations
o The court has a finite docket, and can only hear a relatively small amount of cases a year. It has
discretion to decide which case to hear.
NO mandatory cases they have to hear.
o Supreme Court Rule 10: Even if the court thinks that the lower court made a mistake, the court can
decline to review that case.
Focuses its attention on important federal questions (basically, does it have significance enough
to even hear?)
o Cases come by appeal, or by writ of certiorari
Traditionally: Writ of Certiorari: discretionary, the court does not have to?
Only 4 judges need to allow the case to be heard.
When SCOTUS denies a position for cert it has no legal affect: denial of cert doesnt deny or
affirm the lower courts decision, it just stands. (However the previous court rules, it governs
but its NOT an affirmation. No precedent is created in this.)
Why does the court hear so few cases today compared historically?
The landscape of constitutional law in the US is already developed. At the beginning our history, the court had to
decide how to structure much of our law.
Significance of the issue. There are REALLY, REALLY, significant issues. Because the court recognizes it as limited
political capital, so they punt issues for various reasons (consider gay marriage, they could have decided this 15
years ago, they havent even issued a firm ruling on it yet)
Administrative reasons: researching is more available, more in-depth that a century ago.

Congressional Control in Jurisdiction

What power(s) does Congress have over SCOTUS?
Under the Exceptions Clause [Art. III, II] (with such Exceptions, and under such Regulations as the Congress
shall make) Congress has the power to limit appellate jurisdiction, we just dont know how far/much.

Because most cases come to SCOTUS on appeal, Congress has a lot of power because they can regulate SCOTUS
appellate jurisdiction.
SCOTUS can also be circumvented:
o Congress has the power of funding. They could suck away the funds from the judicial branch.
o Confirmation hearings control who seats on the bench.
o Article V: state could propose to amend the Constitution.
Ex Parte McCardle (p. 15, 1868)

Background: About Reconstruction Actsthe way that the Federal Government was running the south after military victory. Federal
Government was desperate not to have SCOTUS declare the Reconstruction Acts unconstitutional. sues because seditious libel in
Reconstruction Acts are unconstitutional, gets jurisdiction from habeas corpus act. Congress knew theyd lose the Reconstruction
Acts, so repealed habeas corpus act while case was pending in SCOTUS. Totally transparent in their attempt to get his case kicked
out of court.
Facts: McCardle appeals to SCOTUS from a denial of habeas corpus. While it is pending, Congress repeals law granting SCOTUS
appellate jurisdiction over writs of habeas corpus.
Issue: May Congress limit the appellate jurisdiction of SCOTUS?
Holding [Chase]: Yes. Although SCOTUS derives its appellate jurisdiction from the Constitution, also gives Congress the express
power to make exceptions to that appellate jurisdiction. Without jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing
the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

Congress can strip a case from SCOTUS, even while it is pending, even though its obvious they stripped case
because they thought they would lose. Congress has power to cut holes in SCOTUS appellate jurisdiction under
Article III.
Motive: Congress motive here is transparent, yet the Court finds that, we are not at liberty to inquire into the
motives of the legislature. We can only examine into its power under the Constitution; and the power to make
exceptions to the appellate jurisdiction of this court is given by express words.
United States v. Klein (p. 17, 1871)

Facts: Klein, the executor of Wilsons estate, sought to recover Wilsons assets after a presidential pardon authorized him to do so.
The matter was appealed to SCOTUS. While it was pending, Congress passed a law limited the Courts appellate jurisdiction to hear
this case. Statute: upon proof of such pardon the jurisdiction of the court shall cease, and the court shall forthwith dismiss the suit
of such claimant
Issue: Can Congress limit the Courts appellate jurisdiction in this way?
Holding [Chase]: No. By requiring the courts to make a specific finding of fact in a case over which the court has jurisdiction & then
removing its jurisdiction after the finding, Congress isnt limiting jurisdiction, theyre prescribing a rule of decision for the courts.
- Congress impaired POTUS pardons by requiring that they be inadmissible as evidence in these cases. POTUS has the
constitutional authority to pardon offenses. By disallowing the full effect of the pardons, Congress attempted to reduce POTUS
Reasoning: Impairs the (1) Jurisdiction of the Judicial Branch; (2) usurps pardon Power of the Executive Branch.

The Court here grounds its ruling under an argument for the Separation of Powers.
o Act directs the court HOW to decide a case.
o Allows the legislature to dictate to the Judiciary rules of decision.
o Although Congress has power to take away jurisdiction from the court in specific circumstances,
Congress CANNOT tell the Court how to decide.
What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the
cause. And this is not less clear upon authority than upon principle.

Should Congress have the power to limit the appellate jurisdiction of SCOTUS?
- No.
- Courts are not subject to political pressures
- Court provides a check against the excesses of the majority
- The majority shouldnt have unlimited power to limit jurisdiction in order to further their own policy goals.

Does Congress have the authority to strip SCOTUS of its jurisdiction?

Yes, under the Exceptions Clause within Article III, II.
Appellate ONLY
Does McCardle give congress primary (absolute, unqualified) authority over SCOTUS Appellate Jurisdiction?
No clear answer. The constitution clearly gives constitutional power to congress, and does not place restrictions on
congresses ability to limit (strip) the judiciarys appellate jurisdiction.
o What about Klein? Well you can basically ignore?
Why must it BE the supreme court? The check is from the judiciary.
Even if SCOTUS were stripped of these rights, the precedent of the past rulings would still
bind the lower courts. SO, if even in congress stripped certain appellate jurisdiction, the
lower courts would have to adhere to previous SCOTUS decisions. Although, over time, they
would probably create exceptions but there would still be residual power.
o Probably a good idea to give SCOTUS the power to limit congresses power and passed legislation. The court
should be able to challenge when congress wants to infringe rights, and require that the legislature provide
compelling reasons in order to do so.
o Back in the 1960s SCOTUS ruled in Engle v. Vitaly, the state of NY could not require its students to recite
school prayer.
In the immediate aftermath of the decision, then President Kennedy addressed the decision in a
press conference.
Imagine he and the entire congressional delegation disagrees with the decision. And they
propose a bill that would limit the courts appellate jurisdiction over school prayer?
o Would that be Constitutional?
o Would that be a good idea?
Can Congress take away SCOTUS Original Jurisdiction?
Congress cannot take away original jurisdiction, but could perhaps alter the definitions of a state counsel, or
ambassador, or anything defined under original jurisdictions.
o But then again, the court would most likely overturn this and prevent congress from trying to limit the
courts original jurisdiction on an alternate (somewhat subversive) path.
o TEST HINT: Read the text, and then think of a way to maybe get around it, and then issue a stance on
whether or not that would actually work.
o Correct argument: under Marbury, the courts original jurisdiction is not up for
interpretation/limitation/appropriation, however But
Does SCOTUS have an untouchable essential role in law? Should it?
Congress cannot destroy the essential role of SCOTUS in the constitutional plan. Henry Hart.
It is not reasonable to conclude that the Constitution gave Congress the power to destroy that role. Reasonably
interpreted the clause means With such exceptions and under such regulations as Congress may make, not
inconsistent with the essential functions of SCOTUS under the Constitution. Leonard Ratner.
o As a counter, The courts do not pass on constitutional questions because there is a special function
vested in them to enforce the Constitution or police the other agencies of government. They do so
rather for the reason that they must decide a litigated case that is otherwise within their jurisdiction and
in doing so must give effect to the supreme law of the land. Herbert Wechsler.
If the Court has an Essential Role, what is that role?
The supremacy clause of Article VI mandates one supreme federal law throughout the land, and Article III
established the Supreme Court as the constitutional instrument for implementing that clause. Its essential
functions under the Constitution are: 1) ultimately to resolve inconsistent or conflicting interpretations of
federal law, and particularly of the Constitution, by state and federal courts; 2) to maintain the supremacy of
federal law, and particularly the Constitution, when it conflicts with state law or is challenged by state
authority. Leonard Ratner.

Must Some Federal Court be Available to Hear all Federal Questions?

To remove or permit the removal from the entire federal judiciary, including the Supreme Court, of the
constitutional review of state conduct would be to alter the balance of federal authority fundamentally and
dangerously. Lawrence Gene Sager
The constitution does not prohibit this sort of comprehensive stripping of jurisdiction. The Framers considered
the state courts to have played a crucial role in the protection of federal constitutional rights, and thus should
not be viewed as having required federal court jurisdiction over all federal question cases.
Not only that some federal court has to be available to hear every federal question case, but also that some
federal question cases should be heard only by the federal court. Joseph Story, SCOTUS Justice in the early
19th century.
EXAM: Takeaway: (3 Questions you should have an opinion on): (Chemerinsky p. 167-)
1. Should congress have the power to shrink SCOTUS appellate jurisdiction?
2. Does SCOTUS have an untouchable essential constitutional role?
3. Why do we feel different about original jurisdiction than its appellate jurisdiction?

Political Questions Doctrine

What is a political question?
SCOTUS may have the authority, but they may actually decline.
o Out of respect for other branches?
o Out of respects for other states?
o Respect for the political process?
This is an exercise in self-restraint by the court of its own authority, and by no means an obligation.
Its not a hard and fast rule that limits courts all the time, its a standard that they sometimes follow and
sometimes do not.
o Often changes because of the court make-up amongst other things.
When a Court deems a case a Political Question its saying that they believe it is inappropriate for judicial
review and that the subject should be decided by legislature, the executive, or both.
When does this issue come up? Malapportionment. Congressional self-governance. Foreign policy. Impeachment. Removal.
Courts generally will not intervene in the following types of cases:
(1) A case where the issue has been textually committed to another branch of government. (Like Congress sole
power to try all impeachments).
o The Chief Justice presides over cases of impeachment. So do they have the power? Art. I, 3: Senate
shall have the sole power to try impeachments when its POTUS, the Chief Justice shall preside.
(2) Cases that have a lack of judicially discoverable and manageable standards for resolving the issue. (No
judicial standard by which to make the decision.)
o Example: Foreign Relation Disputes.
(3) Cases where there is impossibility without an initial policy determination of a kind that is clearly for a kind of
non-judicial discretion. (Initial policy determination made by one of other branches.)
o Ex: When US should go to war.
(4) Case where its impossible for the court to get involved without in doing so expressing a lack of respect to a
co-equal branch of government.
(5) Cases where there is a need for to adhere to a decision, a political decision, which has already been made.
(6) Cases where there is a potential of embarrassment of multiple pronouncements of various institutions on
one question.
o Disorder: Legislature says X, the President says Y, were not going to get in the middle of it and say O.


The judicial power shall extend to all cases, in law and equity, arising under this Constitution.

The United States shall guarantee to every State in this Union a Republican Form of Government.

Baker v. Carr (p. 22, 1962)

Facts: Apportionment cases had often been brought under the Guaranty Clause of Article IV, Section: 4 of the United States
Constitution, in which the United States guarantees to the individual states a republican form of government. SCOTUS has long held
that such challenges present a political question, not addressable by the courts. In the current case, Appellants challenged the state
apportionment of legislatures under the Equal Protection Clause of the Fourteenth Amendment.
Issue: The TN legislature refused to change its malapportioned districts. s filed suit but the district court refused to hear the case,
claiming that the matter raised a nonjusticiable political question.
Question: Do federal courts have the authority to hear constitutional challenges to legislative apportionment?
Holding [Brennan]: Yes, reverse and remanded. In the past, apportionment challengers have generally based their challenge on the
Guaranty Clause of Art. IV, Section: 4 of the Constitution. These claims are nonjusticiable as they address issues solely directed to the
political branches of the government by the Constitution. This is a separation of powers issue.
Here, the claim is that the Appellants are being denied equal protection of the laws by being underrepresented in the state
legislature. SCOTUS rules that the equal protection challenge in this case is separable from the political questions.

What standards does the Court use to determine when a suit raised a political question?
RA: Generally time, money, political capitol, resources, information.
Other branches domains (textuallike Art. 1 5or traditional); previous decisions; lack of standards;
controversy/embarrassment that could arise.
SCOTUS is more likely to examine a state political issue than one that concerns the Federal Separation of Powers
(1) Is there a textually demonstrable constitutional commitment of the issue to a coordinate political
department (i.e. foreign affairs or executive war powers)?

See Powell v. McCormack (p. 25, 1969), where the court rejected the argument that only the House of
Representatives could decide whether to seat Adam Powell, After Powell was duly elected to the US House of
Representatives, the House refused to seat him because he had engaged in misconduct.

(2) Is there a lack of judicially discoverable and manageable standards for resolving the issue? (p. 23)
(3) The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial
(4) The impossibility of a courts undertaking independent resolution without expressing lack of the respect due
coordinate branches of government. (p. 24)
(5) Is there an unusual need for unquestioning adherence to a political decision already made? (p.24)
(6) Would attempting to resolve the matter create the possibility of embarrassment from multifarious
pronouncements by various departments on one question? (p. 24)

When will federal courts hear malapportionment cases?

In Baker, the court deemed justiciable claims that malapportionment violates the equal protection clause.
Justice Brennan distinguished cases brought under the equal protection clause from those pursued under the
republican form of government clause (a way to get around the ruling in Luther v. Borden). (See p. 24.)
o Brennan explains, the Guaranty clause is not a repository of judicially manageable standards judicial
standards under the Equal Protections Clause are well-developed and familiar.
RA: Will hear cases on apportionment when they are under constitutional rights argument, but they will not redraw without giving the state the opportunity to do this itself.
Practical Problems:
o Even if the Court finds that TN violated the EP Clause, what can they do?
Order new elections?
Redistrict themselves?
o General View: Court should declare districts to be unconstitutional and command the legislature to
SCOTUS can appoint a Federal Judge to oversee
See Swann v. Charlotte-Mecklenberg, desegregation and school bussing cases
Should federal courts hear political questions?

YES: (i) limits the courts role in a democratic society; (ii) defers to expertise of political branches; (iii) self-interest
in federal courts disqualifies them in certain areas; (iv) separation of powersminimizing intrusion on other
o The political question doctrine accords the federal judiciary the ability to avoid controversial
constitutional questions and limits the courts role in a democratic society. (p. 133 Sup).
Bickel: the court sense of lack of capacity, compounded in unequal part of:
the strangeness of the issue and its intractability to principled resolution
the sheet momentousness of it, which tends to unbalance judicial judgment
the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it
should but will not be
finally in a mature democracy the inner vulnerability, the self-doubt of an institution
which is electorally irresponsible and has no earth to draw strength from.
Better for the federal courts to avoid deciding certain cases, especially so as to preserve what he
perceived as the judiciarys fragile political legitimacy
Perhaps another argument would be that, particularly on issues regarding foreign policy, they must be political
questions because of the greater information and expertise of the other branches of government.
What if the court was presented with an issue involved in reviewing the process for ratifying constitutional
amendments because amendments are the only way to overturn SCOTUS constitutional interpretations this
would allow the court to oversee the very constitutional process used to reverse its decisions.
Finally, an argument of separation of powers is heavily present. The argument is that in certain cases an
effective remedy would require judicial oversight of day-to-day executive or legislative conduct.
o For example, a lawsuit contending that there were constitutional deficiencies in training the Ohio
National Guard was deemed to be a political question because remedy would involve judicial control
and supervision over the Guards activities. (See Gilligan v. Morgan; 1973).
NO: (i) judicial role is to enforce the Constitution; political bodies should not be entrusted with enforcement of a
document mean to restrain them; (ii) judiciary is actually quite robust, not fragile; (iii) confuses deference with
o The judicial role is to enforce the Constitutionthat it is inappropriate to leave constitutional questions
to the political branches of government.
Politically accountable bodies should not be entrusted to enforce any part of a document that is
meant to restrain them.
The federal courts credibility is quite robust, and there is no evidence that particular rulings have any effect on
the judiciarys legitimacy, and in any event, the courts mission should be to uphold the Constitution and not
worry about political capital.
o In fact, punting issues is just a way for the court to avoid taking responsibility and ownership of their
Also the court may lack specific knowledge over foreign policy, which does not mean they are incapable of
finding out the necessary information to issue a proper ruling. Moreover, a blatant disregard of the constitutions
requirementsfor example, an amendment deemed by congress to have been ratified even though not
approved by the requisite number of statesshould not be tolerated by the federal courts.

Advisory Opinions
What is the case or controversy requirement?

Rule on Advisory Opinions federal courts cannot make recommendations or issue ex parte opinions:
o (1) There must be an actual dispute between adverse litigants, and
TEST o (2) There must be a substantial likelihood that a federal court decision in favor of a claimant will have
some effect (or at least a declaratory judgment)
So an Advisory Opinion does not involve EITHER of these.

According to Muskrat, cases and controversies refers to the claims of litigants brought before the courts for
determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights,
or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or

treaties of the US takes such a form that the judicial power is capable of acting upon it, then it has been a case. The term
implies the existence of present or possible adverse parties, whose contention are submitted to the court for adjudication.


The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and
Treaties made, or which shall be made, under their Authority . . .

RA: The most important limiting power in the Constitution.

Should SCOTUS be able to issue Advisory Opinions?

Class discussion: Separation of powers; the respectability of the court; impeding on other branches.
The prohibition against advisory opinions is of long standing. In 1793, Secretary of State Thomas Jefferson
solicited input from SCOTUS regarding whether it would be available in the solution of important questions of
the construction of treaties, laws of nations and laws of the land, which the Secretary said were often presented
under circumstances which do not give a cognizance of them to the tribunals of the country. See Muskrat v.
US, (p. 27, 1911).
o Chief Justice Jay responded, the lines of separation drawn by the Constitution between the three
departments of government [afford] strong arguments against the propriety of extrajudicially deciding
the question alluded to, and expressing the view that the power given by the Constitution to the
President, of calling on heads of departments for opinions, seems to have been purposely, as well as
expressly, untied to the executive departments.
The justices also noted that [b]y the express terms of the Constitution, the exercise of the judicial power is
limited to cases and controversies. Beyond this it does not extend, and unless it is asserted in a case or
controversy within the meaning of the Constitution, the power to exercise is nowhere to be found.

What is the difference between a Declaratory Judgment and an Advisory Opinion?

Declaratory Judgment: A ruling by the court on a specific issue of legal interpretation for litigants.
Declaratory Judgment actually solves a dispute between two parties, and Advisory Opinion is one where no
injury is alleged or possible.
Declaratory Judgment: A ruling by the court on a specific issue of legal interpretation for litigants. A declaratory
judgment is appropriate when it will terminate the controversy giving rise to the proceeding. Inasmuch as it
often involves only an issue of law on undisputed or relatively undisputed facts, it operates frequently as a
summary proceeding, justifying docketing the case for early hearing as on a motion.

Do you prefer the Canadian approach to Advisory Opinions? Whether your answer is yes, or no, why?

Canadian Supreme Court has issued a BUNCH of advisory opinions.

o Gun rights, marriage equality (same-sex marriage), Japanese internment, sale tax, the powers of the
senate, and also whether a justice of the Canadian SC has been properly appointed.
Biggest problem: same-sex marriage, and Quebec secession of the country.

When is a suit ripe?
Ripeness seeks to separate matters that are premature for review because injury is speculative and may never
occur. (Threshold issue).
OLD RULE (has not been repudiated though):
United Public Workers of America (C.I.O) v. Mitchell (p. 29, 1947)
Facts: The Hatch Act prohibits federal employees from engaging in political campaigns or political management. Plaintiffs allege that
this violates their constitutional rights but they have not yet suffered an injurybecause they havent violated the Hatch Act. Of all
the people suing, only one person has violated the Hatch Act, the other people are concerned and want to know what will happen IF
they violate the act. So if they violate the law, they run in the risk of being fired [sanction]; if they comply with the law, they are
forced to give up their 1 amendment rights. (No good choice in the ripeness cases).
Issue: Is the suit ripe?
Holding [Reed]: No.




Reasoning: These appellants seem to clearly to seek advisory opinions upon broad claims of rights protected by the 1 , 5 , 9 and
10 Amendments to the Constitution, but the facts of their personal interest in their civil rights, of the general threat of possible
interference with those rights by the Civil Service Commission under its rules, if specific things are done by appellants, does not
make a justiciable case of controversy.
[Parties suit] is really an attack on the political expediency of the Hatch Act, not the presentation of legal issues.
A hypothetical threat is not enough. Separation of powers at issue here.
We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their
proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to
adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public
order except when the definite rights appear upon the one side and definite prejudicial interference upon the other.

Abbott Laboratories v. Gardner (p. 31, 1967)
Facts: The Commissioner of Food and Drugs published a regulation requiring drug companies to adopt new labeling. The drug
companies contest the Commissioners interpretation of the law pursuant to which the regulation was adopted.
Issue: Is the drug companies claim ripe?
Whether the statute was properly construed by the Commissioner to require the established name of the drug to be used
every time the proprietary name is employed.
Direct and immediate question: This is also a case in which the impact of the regulations upon the petitioners is sufficiently
direct and immediate as to render the issue appropriate for judicial review at this stage.
Holding [Harlan]: Yes.
Reasoning: The ripeness doctrines basic rationale is to prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
The problem is best seen in a twofold aspect requiring us to evaluate both (TEST):
[1] The fitness of the issues for judicial decision AND
The greater the possibility that consideration of the issues would be enhanced by a specific set of facts
(rather than the abstract legal issue on its own), the greater the possibility that pre-enforcement review
will be denied.
[2] The hardship to the parties of withholding court consideration.
Addresses unfairness of requiring a person to violate stature before challenging its legality.
Unripe if there appears to be minimal harm is denying review

Are Mitchell and Abbot Laboratories reconcilable?

RA: Probably not.
EXAM: So if you are asked about ripeness on an exam, you dont want to say the we apply the Abbott rule and
we used to apply the Mitchell rule... Be attentive to both rules, know that we use this, but Mitchell is still
there, it has not been repudiated, its still good law, but the courts today use this Abbot ruling instead.
A good answer would recognize this. And then youd say which one you agree with. Discuss it. The merits of
both. Theoretically, the court could go back to Mitchell, why or why do not?
Which approach is better: Mitchell or Abbott Laboratories [Possible Exam Question]?
Apply the Abbot Approach, but not ignore the Mitchell approach. Contrast the two, and explore both. The
court is likely to apply the Abbot approach, but ______. You may think Mitchell is better in the situation.
o Hatch Act is ripe because of the Direct and immediate impact on .
When may a party seek pre-enforcement review of a statute or regulation?
o Policy: Desire to conserve resources and safeguard the credibility of the court.

When is a case moot?
Question of timing, the difference between ripeness, the claim is too late. The case is dismissed because it is too
lateeven if it was ripe at one time. (Threshold issues).
TEST: must present a live controversy at all stages of litigation (both trial and appeal). If anything happens to
end the injury (death of criminal , civil settlement by parties), the case is to be dismissed as moot.

Policy: Derives from prohibition against Advisory Opinions.

DeFunis v. Odegaard (p. 35, 1974)

Facts: DeFunis was denied law school admission, sought an injunction to grant him admission, but by the time the case reached the
Supreme Court he had entered his third year of law school.
Issue: Is this case justiciable?
Holding [per curiam]: No. Article III doesnt allow the court to hear a case that is moot. There needs be a case and controversy
between two adverse parties. There is neither a case or controversy here, and no injury. DeFunis will graduate there is nothing to
resolve. The court has no role here anymore.
Dissent [Brennan]: His studies could be interrupted by MANY different factors, so this is not necessarily the case. We do not know
this case is moot.

Which side is more convincing to you in Defunis: the majority or the dissent?
What are the exceptions to the mootness doctrine?
(1) Voluntary Cessation.
o Narrow exceptionburden on to show no reasonable chance of resuming behavior.
o Ex. Because Washington Law School said they would not remove DeFunis and would let him finish his
studies, the effectively told the court the ruling would have no meaning on the present factual situation.
(2) Capable of Repetition yet Evading Review.
o (i) Injury must be of a type likely to happen to the again.
o (ii) Injury must be of an inherently limited duration so that it is likely to always evade review.

[Did not discuss] (3) Collateral Consequences.

o A secondary injury survives after s primary injury has been resolved.
Ex. Challenge to criminal conviction after sentence is served, if there are still adverse consequences.
Innocence Project
[Did not discuss] (4) Class Actions:
o Unnamed s retain legal rights; as long as there is a live controversy, case may continue.

How does Roe v. Wade, (p. 37, 1973) help us understand the mootness doctrine?
Its a prime example of a Wrong Capable of Repetition but Evading Review:
o When pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so
short that the pregnancy will come to term before the usual appellate process is complete. If that
termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage,
and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes
more than once to the same woman, and in the general population, if man is to survive, it will always be
with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be
capable of repetition, yet evading review. See Southern Pacific Terminal Co. v. ICC(1911).



Ask: (1) Did Congress have the power to act? (2) Was the act itself permitted?
Two Big Themes of this Section:
1. Congress Authority is controlled by Article I, Section 8.
2. The Federal Government (specifically Congress) is of limited, enumerated powers.

Residual Powers

Residual Powers not delegated to any institution (not expressly) are left to someone else. In America, we leave
those residual powers to the states.
This was the founding design. Things have changed a bit from this; its not ALWAYS the case that residual powers
stay with the states.


The Congress shall have Power ... [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer
What does the Necessary & Proper Clause authorize Congress to do?

N&PC expands the power of the congress, to carry into effect its enumerated powers. How should we read the
clause? Only those things absolutely necessary? Or whatever is helpful and convenient?
o Know your stance for the exam.
RA Parasitic Power: its contingent on the existence of other powers.
o So the N&PC authorizes congress to do things N&P contingent on the existence of other enumerated
EX: Article 1, 8, cl. 7: Create Post Offices
N&PC allows congress to related things: establish, maintain and police.
o Make it a crime to steal mail.
loch: Did the court interpret the clause as absolutely necessary, or did the court interpret it to mean as helpful
and convenient?
o Marshall adopts the convenience approach. Let the end be legitimate. (p. 120)
McCulloch v. Maryland (p. 117, 1819)

Facts: Maryland imposed a tax on all banks not operated by the state. The Bank of the United States argued that it did not have to
pay the tax because a state cannot tax the federal government. Maryland (P) enacted a statute imposing a tax on all banks operating
in Maryland not chartered by the state. The statute provided that all such banks were prohibited from issuing bank notes except
upon stamped paper issued by the state. The statute set forth the fees to be paid for the paper and established penalties for
violations. The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (D), the cashier of
the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law. Maryland sued
McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act. The
state court found for Maryland and McCulloch appealed
Issue: RA: Can Maryland tax the bank?
(1) Does Congress have the power under the Constitution to incorporate a bank, even though that power is not
specifically enumerated within the Constitution?
(2) Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the
Holding [Marshall]: RA: No.
(1) Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause.
Enumerated Powers: Power to tax, power to print money, power to regulate commerce. These powers
require an appropriate infrastructure (RA).

The National Bank helps Congress further these powers

Marshall cites historical practice cites First National Bank
N&PC is included in Article 1 8, which expands Congress power, not Article 1 9, which limits Congress
Necessary (Marshall)= helpful, useful, or desirable (RA: convienent)
(2) No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers
under the Constitution
The power to tax is the power to destroy
State taxes could impede its operation or even tax it out of existence.
The power of the Federal Govt comes from the people, not from the States
TEST: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional

Marshall: We must never forget that it is a constitution we are expounding.

o RA/Frankfurther: The most important line of the case, and arguably, one of the most important phrases
in western constitutional theory/study.
The Constitution is NOT a statute. How do they differ?
o Statutes are much more rigid they are directed to some agency or body to do or not do something.
They are specific. This specificity is something you do not generally see in Constitutions.
Brings up East African Countries that have statutory constitutions and Latin America. But this is
not the norm.
Constitutions tend to be written more broadly.
o Accessibility in length.
But, some people mistake the interpretation and what is, or is not, in the constitution.
o The KEY: Marshall concedes that congress does not have the explicit power to create a bank, but still
should have it implicitly because the constitution does not tell us everything, and every power; rather,
we have to deduce (expound) where the Constitution provides an outline and gives Congress power to
enact policy.
P. 118, A Government, entrusted with such ample powers, on the due execution of which the happiness and
prosperity of the national so vitally depends, must also be entrusted with ample means for their execution.
o Thats why the N&PC is so important; because it expands congresses enumerated powers.
To connect the means and the ends, there needs to be the N&PC.
o To have prescribed the means that government should (p. 118)
We have to IMPLY, we have to read implicit powers into the constitution. This is not a legal
o P. 120 Let the end be legitimate, let it be within the scope of the constitution, and all means which
are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the
letter and spirit of the constitution, are constitutional
His interpretation of the N&PC Clause.

How should we interpret the N&PC: broadly or narrowly?

Marshall, in this case, views it broadly. (See the test on p. 120)

Language Argument: Marshall states that the the word necessary is considered as controlling the whole
sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are
indispensable, and without which the power would be nugatory [] This word, then, like others, used used in
various senses; and, it its construction, the subject, the context, the intention of the person using them, are all
to be taken into view.
N&PC is included in the 8 powers of Congress, not the 9 limitations on Congress

What does it mean to say that it is a constitution we are expounding?

That the constitution, and the powers it grants, is not exhaustive, but rather, an outline to which guide usbut
in Marshalls view, the constitution is an instrument to be deduced upon and just because things are not laid
out explicitly, does not preclude them from being constitutionally grounded/possible.

How would you have ruled in McCulloch?

[From Supp., p. 247]: McCulloch establishes:
1. By rejecting compact federalism, McCulloch emphatically declares that the federal government is supreme
over the states and that the states have no authority to negative federal actions.
2. The court expansively defines the scope of Congress powers.
3. The Court limits the ability of states to interfere with federal activities, such as by imposing taxes or regulations
on the federal government.

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.
How broad is the Necessary and Proper Clause?
United States v. Comstock (p. 122, 2010)
Facts: Federal civil commitment statute authorizes the federal government to hold a sexually dangerous or mentally ill prisoner
beyond the date of release. A group of convicted sex offenders (5) sought to dismiss petitions that attempted to indefinitely
commit them under the Adam Walsh Child Protection and Safety Act. At trial, the federal district court dismissed the petitions. On
appeal, the U.S. Court of Appeals affirmed the dismissal, holding that the Protection and Safety Act exceeded the scope of
Congressional authority by enacting a law that imprisons/confines a person solely because of sexual dangerousness, where the
prosecution does never even need to allege that the dangerousness violates a federal law.
Issue: Does the Necessary and Proper Clause authorize the federal government to enact this civil-commitment program?
Holding [Breyer]: Yes. Reversed and remanded. The necessary and proper clause is broad in its scope.
Citing McCulloch v. Maryland, the Court argued that Congress may enact laws that are convenient, or useful or conducive to
the enumerated powers beneficial exercise. There must be a means/ends rationality.
The court must determine if the means used are rationally and actually calculated to achieve the Constitutionally desired end.
o Congress has long passed laws affecting mental health prisoners and crimes involving mental health deficiencies, despite
there being no expressly authorized power to do so.
o Many of the prisoners were already committed under a similar statute.
o The additions proposed by the new statute at issue are modest and affect only a few prisoners.
o The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and
other) communities from the danger such prisoners may pose.
Thus, far from a general police power, 4248 is a reasonably adapted and narrowly tailored means of pursuing the
Governments legitimate interest as a federal custodian in the responsible administration of its prison system.
Chem: Under N&PC, Congress has the power to prescribe the sanctions for crimes that it creates. Continued commitment of the
sexually dangerous fits within the scope of N&PC as defined by McCulloch.
Reasoning: Congress does not have an enumerated power to pass this law, but under the N&PC it does.

o Kennedy Concurrence: Caution with rational basis. Lets be sure were using the right word in this
context, maybe a different word, and not muddle our jurisprudence.
o Alito Concurrence: No doubt there is a link.
o Thomas Dissent: There is no enumerated power here, so we have to turn to the N&PC.
Thomas does not think they used the test in the McCullough. (p. 120)
Let the end be legitimate (p. 120)
1. Directed toward a legitimate end.
2. Must be a necessary and proper fit between the means and the ends.
Thomas is PISSED because he thinks the majority is creating a new 5 part test here in DIRECT
conflict with the McCulloch test

What are the five considerations for majority references in Comstock?

1. The Test and the Meaning of the Necessary and Proper Clause.





a. The N&PC makes clear that the Constitutions grants of specific federal legislative authority are
accompanied by broad power to enact laws that are convenient, or useful or conducive to the
authoritys beneficial exercise. exercise. (p. 123-24).
b. The word necessary does not mean absolutely necessary. (p. 124)
i. RA: Takes a broad reading of the N&PC.
1. In determining whether the N&PC grants Congress the legislative authority to enact
particular federal statute, we look to see whether the statute constitute a means that is
rationally related to the implementation of a constitutionally enumerated power. (p.
a. RA: There just has to be a rational connection between the N&PC and the
power being used.
b. RA: This is VERY permissive.
c. Its not asking whether the choice congress made is good or bad, the court is
just asking whether its reasonable.
d. Could a reasonable person have made this connection?
i. RA: This is a very low-bar. THIS IS PRETTY PERMISSIVE.
a. RA says the Court Concedes: history is NOT definitive.
i. Just because congress has a history of involvement in mental health is prisoners, does not make
it a foregone conclusion.
1. BUT, it can be helpful, in looking at WHY congress passed this law and whether or not
this is reasonable.
a. CT: this statute is similar to previous ones, and its just a modest changeits
not such a great departure of past congressional actions.
i. It is a modest addition to a longstanding federal statutory framework,
which has been in place since 1855. (p. 125).
a. Custodianship: Descriptor is relevant for this PARTICULAR case. But RA does not think that the 3rd
consideration is about custodianship in a broad sense.
b. Congress acted reasonably.
i. It reasons by analogy.
1. It would be N&P for Congress to treat a prisoner (as custodian) SO, why shouldnt it be
N&P for Congress to treat mental illness for a prisoner that would go out and enter the
world and possibly cause bodily harm to the public.
a. The connection here is reasonable.
ii. Here Congress desire to address the specific challenges, taken together with its responsibilities
as a federal custodian, supports the conclusion that 4248 satisfies review for means-end
rationality i.e., that is satisfies the Constitutions insistence that a federal statute represent a
rational means for implementing a constitutional grant of legislative authority. (p. 126).
a. This is not a 10th amendment issue.
b. Congress powers are MORE than those that are enumerated but also the powers it needs to exercise
in order to use their enumerated powers.
Relevance of the Law to the Enumerated Power.
a. The link between the law and the enumerated power under Article I cannot too attenuated; we may not
pile inference, upon inference, to sustain congressional action to sustain the N&PC.
b. The Constitution allows for the making of an area of regulation and the N&PC gives the power to carry
out specific provisions of that regulation. (p. 127).
i. Setting the ceiling for the N&PC.

What is the McCulloch test to which Justice Thomas refers?

Let the end be legitimate (p. 120)


1. Directed toward a legitimate end.

2. Must be a necessary and proper fit between the means and the ends.

Are the McCulloch test and the five considerations from Comstock consistent?
- Yes, the Comstock Test is more of a framework to evaluate whether the particular law fits within the
McCulloch Test
So What?
1. When evaluating Congress N&PC power, the court will make 5 inquiries.
2. Debate whether the majority created a new test and disregarded the old test or is it merely supplemental?

Four (4) Eras of the Commerce Clause:
1890S 1937: NARROW
Theme of Nation Building.

Court invalidating many

federal laws.
Court invalidating many
federal laws.
Chem: During this era,
conservative Justices deeply
committed to laissez-faire
economics & strongly opposed
to government economic
regulations, controlled the
The court espoused a
philosophy known as dual
federalism which held that
federal and state governments
were separate sovereigns, that
each had separate zones of
authority, and this was the
judicial role to protect the
states by interpreting and
enforcing the Constitution to
protect the zone of activities
reserved to the states.
1. The Courts narrowly
defined the meaning of
commerce so as to leave a
zone of power to the states.
2. The Courts restrictively
defined among the states as
allowing Congress to regulate
only when there was a
substantial effect on interstate
3. The Courts held that the
10th Amendment reserved a
zone of activities to the states
and that even federal laws
within the scope of the CC
were unconstitutional if they
invaded that zone.

1937 1995: EXPANSIVE

Not one federal law declared
unconstitutional as
exceeding Commerce Clause
Congress could do no wrong
under the Commerce Clause.
As a consequence, the 10
Amendment protection for
the states was small, or
some would argue, nonexistent.
Consider the composition of
the court: in Wickard, the SC
was controlled by
Democratic Appointees [FDR
had appointed 7 out of 9].

1995: NARROW
Guns in school zones federal
law deemed
unconstitutional expansion
of Commerce Clause power
By 1995, the composition of
the court had changed. Of
the 9 justices on the SC,
Republican Presidents had
appointed 7. Many of these
justices are 10 Amendment
advocates and believe
strongly in states rights.


Be able to answer the following questions after this unit:
1. How much power does Congress have under the Commerce Clause?
2. Does congress have the exclusive power over commerce, or are the states allowed to exercise a certain amount
of control?
3. If the states can exercise some power, where does federal power end and the state control begin?
4. Can congress exercise control over purely intrastate commerce?
a. So the text of the commerce clause says that congress has the power to regulate commerce among the
several states
b. So interstate 2 more of states.
i. So, can congress do this purely INTRASTATE? Just in ONE state.
5. What is the role of the 10th Amendment?
a. Does Federal Regulation (of commerce) infringe upon a states 10th amendment right?


The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian
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.
What does the Commerce Clause authorize Congress to do?

The Commerce Clause is a big source of authority; it authorizes Congress to regulate anything related to
commerce, even things that happen internally within a state. (RA)
Gibbons v. Ogden (p. 11, 1824)

Facts: NY granted Robert R. Livingston & Robert Fulton the exclusive right of steamboat navigation on NY state waters. Livingston
assigned to Ogden () the right to navigate the waters between NY City and certain ports in NJ.
Ogden brought this lawsuit seeking an injunction to restrain Gibbons () from operating steam ships on NY waters in violation of
his exclusive privilege.
Ogden was granted the injunction & Gibbons appealed, asserting that his steamships were licensed under the Act of Congress
entitled An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating
the same.
Gibbons asserted that the Act of Congress superseded the exclusive privilege granted by the state of NY.
o Ogden: Wants to define commerce in a narrow way. Commerce is really about commercial activitybuying and selling. The
interchange of commodities. It does not include navigation (p. 132).
o Navigation is not under federal powers of regulation.
The Chancellor affirmed the injunction, holding that the NY law granting the exclusive privilege was not repugnant to the
Constitution and laws of the United States, and that the grants were valid.
Gibbons appealed, and the decision was affirmed by the Court for the Trial of Impeachments and Correction of Errors, the highest
Court of law and equity in the state of New York. SCOTUS granted certiorari.
Issue: May a state enact legislation that regulates a purely internal affair regarding trade or the police power, or is pursuant to a
power to regulate interstate commerce concurrent with that of Congress, which confers a privilege inconsistent with federal law?
Do states have the power to regulate those phases of interstate commerce which, because of the need of national uniformity,
demand that their regulation, be prescribed by a single authority?
Does a state have the power to grant an exclusive right to the use of state waterways inconsistent with federal law?
RA: Whether congress has the power under the commerce clause to issue a federal license under state waters?
o RA: Yes they do, but why?
Holding [Marshall]: No. A state may not pass legislation inconsistent with federal law which regulates a purely internal affair
regarding trade or the police power, or is pursuant to a power to regulate interstate commerce concurrent with that of Congress.
No. States do not have the power to regulate those phases of interstate commerce which, because of the need of national
uniformity, demand that their regulation, be prescribed by a single authority.

No. A state does not have the power to grant an exclusive right to the use of state navigable waters inconsistent with federal law.
Marshall, Commerce includes navigation.

Reference has been made to the political situation of these States, anterior to its formation. It has been said,
that they were sovereign, were completely independent, and were connected with each other only be a league.
This is true. But, when these allied sovereigns converted their league into a government, empowered to enact
laws, the whole character in which the States appear, underwent a chance, the extent of which must be
determined by a fair consideration of the instrument by which that change was effected.
o The Articles of Confederation was really a federation but now we have the Constitution.
o The US Constitution changed this, the power resides with the federal government and the states are
secondary (inferior) to the federal government.
The Supremacy Clause.
The subject to which the power is next applied, is to commerce among the several States. The word among
means intermingled with. A thing which is among others, is intermingled with them. Commerce among the
States, cannot stop at the external boundary line of each State, but may be introduced into the interior it is not
intended to say that these words comprehend that commerce, which is completely internal, which is carried on
between man and man in a State, or between different parts of the same State, and which does not extend to or
affect other State. Such a power would be inconvenient, and is certainly unnecessary.
o How does Congress interpret this phrase?
Among means intermingled with Distinguished between purely internal commerce and
commerce that involves more than one state.
The court prefers a much broader reading of the clause.
Marshall, Congress cannot regulate purely intrastate commerce. So he makes a
Congress can regulate commerce that is intermingled amongst states even if that
commercial activity occurs within a state.
Is anything every really purely internal to state?
RA: Something COULD be purely internal.
But he points out that most would argue, there is ALWAYS a chain that connects to the
federal government. Whether through taxes, wages, etc.
o Court suggests there is no such thing as something purely internal. There is
always some chain that connects a transaction to the federal commerce.
How is the supremacy clause implicated in this case?
When federal and state licenses are in the conflict, the state license is ineffective insofar
as it conflicts with the federal one.

What does Commerce Mean?

- Intercourse between states in trade (Marshall)
Is there a tension between the 10th Amendment and the Commerce Clause power?

RA: Yes.
When congress does something not enumerated, and people often argue that it should be a state power under
the 10th Amendment.
o If you have a broad reading of congress power, the 10th amendment doesnt cover much. If you have a
narrow reading of congressional power, the 10th amendment covers more ground.
10 Amendment, 2 interpretations/basic schools of thought:
o (1) A reminder that congress can act ONLY IF it has the [textual] authority to do so; whereas the states
can act unless they are prohibited.
Remember, this is a government of limited/enumerated powers.
Federal govt can act only if its expressly allowed, states cant act only if its expressly


(2) 10th Amendment reserves a sphere of activities that falls in exclusive control of states cant be
touched by federal regulation
The court has vacillated over these two interpretations throughout history.

What is the connection among Marbury, McCulloch, and Gibbons?

What is Marshall doing here? (Early founding periodroughly).

It became a nation in large part because of judicial power.

How broadly should we interpret the Commerce Clause? Should it depend on the era in which we are
interpreting it?

The Commerce Clause has been interpreted narrowly and broadly. It has changed with time and different
judges. Its made possible by the broad terms in which it was written.
o The Lottery Case v. The Child Labor Case.
Perhaps it comes down to what you view as commerce.
o Is it JUST commerce as the Court defines it in The Child Labor Case? (p. 134. intercourse)
But does Commerce include other things? Like production and manufacturing?

Narrowing Begins! (Era 2)

Champion v. Ames (p. 138, 1903) [Lottery Case]
Facts: Federal Lottery Act banned the interstate shipment of lottery tickets. Champion was charged for conspiring to transfer lottery
tickets across state lines. He claimed it was unconstitutional because the CC authorizes the REGULATION of commerce, not the
PROHIBITION of commerce.
Issue: May Congress prohibit the interstate transfer of lottery tickets?
Holding [Harlan]: Yes. Ban on interstate shipment of lottery tickets upheld despite intrastate effects.
SCOTUS rejects the distinction between regulation and prohibition
Prohibition is a form of regulation
Deference to Congress: Constitution doesnt tell us what is a legitimate regulation. Legitimacy and Constitutionality are
different things.
POLICY: Court much more willing to defer to moral laws than to economic regulations.
Dissent [Fuller]: Banning lotteries is not commercial, it is a police power. Police powers are the province of the state. Therefore, this
law violates the 10 Amendment.

What is the connection between the text of the constitution and the courts reasoning?
o Prohibition is a form of regulation.
o Court is giving deference to congress.
o The Constitution does not tell us what a legitimate regulation is.
It tells us that Congress has the power to regulate, but not what is or is not legit.
Its CONSTITUTIONAL for congress to regulate so the court gives wide latitude to congress to
regulate interstate congress.
o As long as the end is legitimate and the means appropriate, congress can regulate.
10th Amendment: states have police power over local trade and manufacture (separate spheres idea); but
there is morality exception.
o Is it possible that one can regulate so much the effect is that the regulation becomes a prohibition?

Chem: The Court makes it clear that the power to regulate interstate commerce includes the ability to prohibit
items from being in interstate commerce. The Court concluded that it was within Congress CC power to stop
lottery tickets from being a part of interstate commerce.
o O If a state, when considering legislation for the suppression of lotteries, within its own limits, may
properly take into view the evils that inhere in the raising of money, in that mode, why cant Congress,
invested with the power to regulate commerce among the several States, provide that such commerce
shall not be polluted by the carrying of lottery tickets from one State to another.
o O The Court explicitly rejected the argument that the federal law violated the 10th Amendment and

intruded on state government prerogatives.

o O Also, the Court rejected the argument that according Congress such power would give Congress
seemingly limitless authority and would endanger the constitutional structure. The Court simply said:
The possible abuse of a power is not an argument against its existence.
o O Thus, the Court did not consistently define the zone of activities reserved to the states. Yet the Court
during this era clearly believes in dual sovereignty and used it to limit federal power.
Compare to The Child Labor Case.
Chem: The Court makes it clear that the power to regulate interstate commerce includes the ability to prohibit items
from being in interstate commerce. The Court concluded that it was within Congress CC power to stop lottery tickets
from being a part of interstate commerce.
- If a state, when considering legislation for the suppression of lotteries, within its own limits, may properly take
into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with the
power to regulate commerce among the several States, provide that such commerce shall not be polluted by the
carrying of lottery tickets from one State to another.
- The Court explicitly rejected the argument that the federal law violated the 10th Amendment and intruded on
state government prerogatives.
- Also, the Court rejected the argument that according Congress such power would give Congress seemingly
limitless authority and would endanger the constitutional structure. The Court simply said: The possible abuse
of a power is not an argument against its existence.
- Thus, the Court did not consistently define the zone of activities reserve to the states. Yet the Court during this
era clearly believes in dual sovereignty and used it to limit federal power.
Compare to The Child Labor Case.
As an outlier (Chem): Perhaps the principled distinction between this case, and the Child Labor Case is simply a product
of the Courts particular brand of conservatism: economically conservative and thus aggressive in striking down
economic regulations; morally conservative and thus deferential to laws directed at what was perceived as sin.
Houston, East & West Texas Railway Co. v. United States (p. 141, 1914) [Shreveport Rate Case]
Facts: Railway companies are charging significantly higher rates from Shreveport (La) to points in Texas than from cities within Texas
to those same points. The Interstate Commerce Commission found rates were unreasonable, forced them to lower the rates from
Shreveport. Railway sued, violates CC clause.
Issue: May Congress regulate intrastate rates where they affect interstate commerce?
Holding [Hughes]: Yes. Congress can regulate purely intrastate commerce when it has a close and substantial relationship to
interstate commerce.
The lower rates for intrastate shipment have an effect on interstate shipment
- The agents of commerce (here, the railroads) cannot be used to cripple, retard, or destroy interstate commerce
- Congress can prevent the instrumentalities of interstate and intrastate commercial intercourse from being used to the
injury of interstate commerce.
- Congress has the right to keep the highways of interstate communication open to interstate traffic on FAIR AND EQUAL

Regulating purely INTRASTATE railroad rates. Operating ENTIRELY within Texas.

o Why? Because they were overselling the interstate, so they could charge the intrastate rate less.
o Congress has a legit interest in the survival of the interstate railroad.

Close and Substantial Relationship TEST:


Congress, in the exercise of its paramount power, may prevent the common instrumentalities of
interstate and intrastate commercial intercourse from being used in their intrastate operations to the
injury of interstate commerce.
. . .the right to control their operations in all matters having such a close and substantial relation to interstate
traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate
service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair
terms and without molestation or hindrance.
Hammer v. Dagenhart (p. 143, 1918) [Child Labor Case]
Facts: To combat child labor, Congress passed a law that banned all products that were made from child labor from entering

interstate commerce. Dagenhart owned a cotton mill and sued, claiming the law was unconstitutional.
Issue: May Congress regulate the production of these goods on the theory that they travel in interstate commerce?
Holding [Day]: NO. There is a distinction between commerce, which Congress can regulate, and production, which occurs wholly
intrastate. The manufacture of products that will enter interstate commerce is a matter of local regulation.
Health and safety regulations, such as banning child labor, is a power that belongs to the state.
It may be desirable for such laws to be uniform, but our federal government is one of enumerated powers
States are empowered with all powers not expressly delegated to the federal government.
Dissent [Holmes]: There is nothing wrong with the law. The law bans the interstate trade of products made with child labor. This law
does not meddle with any powers of the states. When states seek to send their products across state lines, they are no longer within
their rights.

Expansive view of states right and limited view of congress power.

Distinguish from Champion:
o Goods are harmless here [they were harmful in the lottery case] (p. 144)
o Distinction between production and commerce (p. 144)
Intercourse and traffic making goods is not commerce, its production
This is why they give deference to states rights.
Court distinguishes this case from Shreveport Rate in two ways: (1) In Champion, goods being transported were
harmful (lottery tickets) whereas here, the goods are harmless. (2) Making goods is not commerce, it is
production and if we allow Congress to regulate production, then there would be nothing Congress could not
o (1). Whether you find this distinction persuasive? Lottery v. Child Labor Case.
This congressional law in the child labor case may be a good law/idea.
P. 145: its a good idea to limit child labor and it may be a good idea to have a uniform
Although its a good idea, its not under congress authority under the Commerce
o Dual Sovereignty: the maintenance of the authority of the states over matters
purely local is as essential to the preservation of our institutions as is the
conservation of the supremacy of the federal powers in all matters entrusted to
the nation by the federal Constitution (Preemption)
o (3). Do you agree with the majority or the dissent? [Make both arguments].
Note: When court overrules Hammer in Darby, court holds that (1) (idea that Congress power to prohibit
interstate commerce is limited to articles which have harmful property) is novel and not supported by any
provision of the Constitution.

How would you have ruled in Champion v. Ames? In the Shreveport Rate Case? In the Child Labor Case?
Are the holdings in Champion and the Shreveport Rate Case consistent with the holding in the Child Labor
New Deal Era
Carter v. Carter Coal Co. (p. 148, 1936)
Facts: Congress passed a law regulating the coal industry. The law sought to establish fair competition standards, production
standards, wages, hours, labor relations, etc. The Act imposed a 15% tax on all coal companies. If companies complied with the Acts
requirements, they would receive a 90% refund of the new tax.
Issue: May Congress pass a law on matters whose effect is only indirect on interstate commerce? Can the labor provisions of the
Act be upheld as an excursive of the CC?
Holding [Sutherland]: No. SCOTUS ruled the Bituminous Coal Conservation Act unconstitutional by a 5-4 margin. The majority
reasoned as follows:
A. Just because a commodity is manufactured or produced within a state and is intended for interstate commerce, does not
mean that its production or manufacturing is subject to federal regulation under the commerce clause.
B. A commodity that is meant to be sold in interstate commerce is not considered to be part of interstate commerce before the

commencement of its movement from the state.

C. Mining is not interstate commerce. It is a local business and is subject to local control and taxation.
D. The word 'commerce' is equivalent to the phrase 'intercourse for the purposes of trade': the process of mining coal does
not fit within this definition.
E. The labor board has powers over production, not commerce. This confirms the idea that production is a purely local activity.
F. If the production of coal by a single person does not have a direct effect on interstate commerce, then the production of
coal by many people can also not have a direct effect on interstate commerce. (Compare with Wickard.)
G. The evils that Congress sought to control are all local evils over which the federal government has no legislative control.
The federal regulatory power ceases when interstate commerce ends; and, the power does not attach until interstate commercial
intercourse begins.
Commerce v. Production: One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate
commerce, whether such sale and shipment were originally intended or not, has engaged in two distinct and separate activities. So
far as he produces or manufactures it, his business is purely local. So far as he sells or ships it, or contracts to do so, to customers in
another State, he engages in interstate commerce. In respect of the former, he is subject to regulation by the State; in respect of the
latter, to regulation only by the federal government. Production is not commerce, but a step in preparation for commerce.

Wiki: The court points out that the activity that Congress is trying to regulate, according to the Bituminous Coal
Conservation Act, is the production of coal, not commerce.
o Also, they make it clear that the flow of goods has not begun when coal is still being produced.
Therefore, there is not a current of commerce.
Third, the direct versus indirect test was used and the court found that the production
of coal does not have a direct effect on interstate commerce.
o Lastly, the issue of whether or not the production of coal could be categorized
as an evil was discussed.
It was determined that, in this case, the production of coal is a local
Congress doesnt have the right to regulate all evils, just
national ones.
(p. 149) One who produces has engaged in 2 and distinct activities purely local production is local
interstate commerce.
o Distinction between commerce and production.
(p. 150) direct v. indirect:
o Whether the effect of a given activity or condition is direct or indirect is not always easy to determine.
o The word "direct" implies that the activity or condition invoked or blamed shall operate proximately -not mediately, remotely, or collaterally -- to produce the effect.
The distinction between a direct and an 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
The question is: what is the relation between the activity or condition and the effect?
o The labor divisions here have a direct effect on commerce, therefore it can lawfully pass legislation on
How would you rule in this case?

Expansion Again! (Era 3)

NLRB v. Jones & Laughlin Steel Corp. (p. 152, 1937)
Background: Same court as Carter Coal. Only difference is that Justice Roberts switched and the previous dissent becomes the new
majority. Deemed, The switch in time, which saved 9. Perhaps if Roberts had no switched, FDR would have went through with this
court-packing plan.
Facts: NLRB found that J&L Steel had wrongly discharged employees in order to interfere with their union activities, ordering them
to cease and desist from these practices. J&L Steel claimed that the National Labor Relations Act was unconstitutional under the CC.

They claimed that the references in the Act to interstate and foreign commerce are just an excuse so the government can regulate
labor relations, which are a state concern.
Issue: Can congress regulate labor relations via the commerce clause?
Holding [Hughes]: Yes, the law is valid. Its not enough to observe that the EEs were engaged in production (p. 154)
The fact that the EEs were engaged in production is NOT determinative. The Question remains, as to the effect on
interstate commerce of the labor practice involved
Its a fact-intensive question.
The Court obliterates the Direct v. Indirect test and the Production/Commerce Distinction.
The Court reasserts the Close and Substantial Relationship Test: Although activities may be intrastate in character when
separately considered, if they have such a close and substantial relation to interstate commerce that their control is
essential or appropriate to protect that commerce from burdens or obstructions, Congress cannot be denied the power to
exercise that control.
Reasoning: Just because we were (once upon-a-time) concerned with production, we cannot think that away anyoneits
too simple an approach to think about commerce
o We are asked to shut our eyes to the plainest facts of out national life and to deal with the question of direct and
indirect effects in an intellectual vacuum.
Dissent [McReynolds]: The court is rejecting all precedent. Reaffirms direct/indirect, production/commerce, and lambasts the court
for using the inference-upon-inference approach of the court. Invasion of the powers of the states.

How would you have ruled in NLRB?

Which test is most appropriate for interpreting the Commerce Clause: (1) commerce vs.
production/manufacturing; (2) direct vs. indirect; or (3) close and substantial relation?
Does the Commerce Clause have a precise meaning?

After NLRB SCOTUS has interpreted the Commerce Clause very broadly.
Wickard repudiates the Carter Coal case, validates aggregation.
o Its a BIG DEAL that the courts say they will not look into motive/purpose, and I should have an opinion
on this! (Per, RA).
o Idk. I mean, I guess?

Overrules Hammer v. Dagenhart

United States v. Darby (p. 156, 1941)
Facts: In 1938, Congress passed the Fair Labor Standards Act to regulate many aspects of employment including minimum wages,
maximum weekly hours, and child labor. Corporations which engaged in interstate commerce or produced goods which were sold in
other states were punished for violating the statute. Darby, a lumber company, was charged.
NOTE: Same issue as Dagenhart
Issue: Can Congress regulate his production, manufacturing and labor practices?
Holding [Stone]: Yes.
While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce, and
the prohibition of such shipment by Congress is a regulation of interstate commerce.
o Before, the court says that production and manufacturing were not related to commerce, but now since its connected to
shipment, its under Congress authority.
Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on
interstate commerce, is free to exclude from it articles whose use in the State for which they are destined it may conceive to be
injurious to the public health, morals or welfare, even though the State has not sought to regulate their use. (THE RULE).
o The Question of Motive.
RA: Irrespective of its motive as long as its under the CC power. Purpose/Motive does not matter. Congress cannot
regulate labor standards. Its not an Article I power. So even though Congress is getting around their lack of power,
SCOTUS doesnt care. They can get around this through the CC, and the court will not inquire to their
Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is
to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by other
Constitutional provisions. It is no objection to the assertion of the power to regulate interstate commerce that its
exercise is attended by the same incidents which attend the exercise of the police power of the states.

BACK TO McCulloch: [The power of Congress] extends to those activities intrastate which so affect interstate
commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to
the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate
o RA: The distinction between Commerce and Production is extra dead.
Total deference to Congress
o Congress can use CC to regulate public health, morals, or welfare.

The power of Congress over interstate commerce "is complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations other than are prescribed in the Constitution." Gibbons v.
Ogden Congress, following its own conception of public policy concerning the restrictions which may
appropriately be imposed on interstate commerce, is free to exclude from the commerce articles
whose use in the states for which they are destined it may conceive to be injurious to the public
health, morals or welfare, even though the state has not sought to regulate their use.

Darby overrules Hammer v. Dagenhart

Question on Pg. 158: Dramatic shift from the court on the 10th Amendment.
o Not only does the court rule against Dagenhart, but the court in this case, that the 10th Amendment is
just a truism.
Our conclusion is unaffected by the Tenth Amendment which provides:
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. The [10th]
amendment states but a truism that all is retained which has not been surrendered.
There is nothing in the history of its adoption to suggest that it was more than
declaratory of the relationship between the national and state governments as it had
been established by the Constitution before the amendment, or that its purpose was
other than to allay fears that the new national government might seek to exercise
powers not granted, and that the states might not be able to exercise fully their
reserved powers.
CC Exam Test: The court would rule this way using this test but if I were a justice, I would do X, Y, ZI want to
merge this test and this test. (This is what youd write on the policy portion of an exam question.
Wickard v. Filburn (p. 159, 1942)

Facts: Agricultural Adjustment Act was passed, which set limits on how much wheat farmers can grow. Roscoe Filburn grew wheat
for personal use/consumption. He was sanctioned for growing more wheat than the quota allowed. Filburn claimed the law violated
the CC because
i. The activities are local in character, and
ii. The effects on interstate commerce are indirect
Issue: Can Congress regulate a good that was produced for personal consumption because they believe that production will affect
interstate commerce?
Holding [Jackson]: Yes. Congress can act when the aggregate effect has a close and substantial effect on interstate commerce
Congress adds a new wrinkle to C&S Effect Test (NOT A NEW TEST< JUST A YOLO WAY OF LOOKING AT IT)
Even if an activity is local and not regarded as commerce, "it may still, whatever its nature, be reached by Congress if it
exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at
some earlier time have been defined as 'direct' or 'indirect.'"
Aggregation Effect: That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to
remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others
similarly situated, is far from trivial.
Contra Carter

Expansive interpretation of Congress power under the CC.

Aggregation: Filburns 0.9 acres of wheat alone is not a substantial effect on interstate commerce. BUT, many
farmers over the quote would have an effect on commerce. The Court will allow Congress to make these
inferences when determining economic policy.

NOT a new test new wrinkle to the C&S Effect Test which expands the reach of the CC
NOTE: Filburns LACK OF COMMERCE, in the aggregate, will have a depressing effect on the wheat market.
o See Sebilius

Should the production of a good not produced for interstate commerce but intended for personal use
constitute commerce for purposes of the Commerce Clause?
Which approach to aggregation is better: Carter Coal or Wickard?
How would you have ruled in Wickard?
Does the Constitution contemplate using the Commerce Clause to regulate Racial Discrimination?
Heart of Atlanta Motel, Inc. v. United States (p. 162, 1964)
Facts: Heart of Atlanta Motel had 216 rooms available to transient guests and had historically rented rooms only to white guests.
Close to highways, both interstate and intrastate.
Appellant solicits business from outside the State of Georgia through advertising in national travel magazines and other media.
Approximately 70% of its guests are from outside the state.
Owned does not allow African Americans to stay there.
o Title II of the Civil Rights Act makes it unlawful for places of public accommodation to discriminate on the basis of race.
Appellant contends that Congress has overreached its authority under the Commerce Clause in enacting the Act.
Congress went too far using its authority to pass this law. Hes arguing that the law is unconstitutional.
o Congress: Believes there was a connection between discrimination and commerce. (P. 163)
Issue: Does the Constitution contemplate using the Commerce Clause to regulate racial discrimination?
Holding [Clark]: Yes.
Congress heard testimony from many sources describing the hardships blacks face in securing transient accommodations
throughout the United States.
o With an increasingly mobile populace, this brought increasing difficulties to many US citizens.It does not matter that
Congress was addressing a moral issue (see the dissent in Dagenhart, and SCOTUS majority in Darby.)
o What the Supreme Court is examining is Congress power to enact the legislation, not the impetus behind the Act.

Congress is targeting something it believes is a moral wrong. The court sees this.
o And we know that Congress has no authority to regulate that directly. Their motive is not of interest to
the court.
o P. 164, That Congress was legislating against moral wrongs in many of these areas rendered its
enactments no less valid. In framing Title II of this Act, Congress was also dealing with what it
considered a moral problem. But that fact does not detract from the overwhelming evidence of the
disruptive effect that racial discrimination has had on commercial intercourse. It was this burden
which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its
power, Congress was not restricted by the fact that the particular obstruction to interstate commerce
with which it was dealing was also deemed a moral and social wrong.
o But this is a matter of policy that rests entirely with the Congress, not with the courts. How
obstructions in commerce may be removed -- what means are to be employed -- is within the sound and
exclusive discretion of the Congress. It is subject only to one caveat -- that the means chosen by it must
be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here
was not so adapted. The Constitution requires no more. The commerce power invoked here by the
Congress is a specific and plenary one authorized by the Constitution itself.
The only questions are:
(1) whether Congress had a rational basis for finding that racial discrimination by motels
affected commerce, and
(2) if it had such a basis, whether the means it selected to eliminate that evil are
reasonable and appropriate.

If they are, appellant has no "right" to select its guests as it sees fit, free from
governmental regulation.
So why not ground this law in morality? A human dignity?
o WHY go through the commerce clause?

Is there a 10th Amendment problem/issue in Heart of Atlanta Motel?

Is interstate commerce just a pretext in Heart of Atlanta Motel? Was Congress really concerned about
Generally, everyone agrees with the end. But are we okay with the means here?
Write a dissent to Heart of Atlanta Motel.
Recap of the this Era:

Last class learned about how much Congress can do with the Commerce Clause. After the last few classes, the
response seems to be that Congress can do anything.
We read in Darby and Wickard that Congress can regulate activities that are somehow connected to interstate
commerce, even if connection is tenuous and exists only by aggregation.
We read in Darby that Congress has authority to regulate production, manufacturing, and labor standards (court
had previously said no to this in Dagenhart).
In Wickard, Court held that Congress can use an aggregate analysis to establish an effect on interstate
commerce. Even though a given farmers activities may not be significant in and of themselves, can be
considered in the aggregate with other similarly situated farmers.
In Heart of Atlanta, Congress tried to use the commerce clause to integrate public accommodations like
restaurants and hotels, to prevent the owners of the accommodations from discriminating on the basis of race.
Court held that Congress has the authority to regulate public accommodations in this way because there is an
impact on interstate commerce. Hotel serves interstate travelers and therefore falls under the Congressional
commerce power.
Test the court uses to decide this case is very deferential does Congress believe that what it is doing is
reasonably related to commerce, and is it indeed reasonable? If yes, then Congress can do it.
But, that was then. Today things are different with regard to the commerce clause. It turns out that there are
things that Congress cannot do.
For this era, the 10th Amendment is meaningless

Narrowing Returns! (Era 4)

United States v. Lopez (p. 168, 1995)
Background: Conservative court here, so Congress needs to prove to the Court that is has a reason for doing what it wants to do, and
that this reason related to interstate commerce. Prove it is the theme for this case.
Facts: Gun-Free School Zones Act of 1990 made it a federal offense for any individual knowingly to have a gun in a school zone. The
law doesnt expressly regulate commerce however, doesnt say anything about interstate commerce as a condition of violating the
law. Lopez (teenager) violated the act by arriving at his HS in TX with a concealed handgun with 5 bullets. Charged and convicted
with violating the statute. Moved to dismissed, trial court denied the motion. Lopez appealed. He argues that the law is an
unconstitutional exercise of Congress commerce power, that Congress passed act that was just like, We dont like guns around
schools and used the CC as its tool. Court of Appeals reversed his conviction, arguing that the Act was beyond the power of
Congress under the CC. Government appealed.
Governments Argument: Possession of a firearm in a school zone may result in violent crime and violent crime can be expected to
affect national economy because:
1) Cost of violent crime is substantial, and, through mechanism of insurance, those costs are spread throughout the population.
2) Violent crime reduces the willingness of individuals to travel to areas within the country that they are perceived to be unsafe.
a. Also argues that presence of guns will pose a substantial threat to the educational process by threatening learning
environment, which will result in less product citizenry, and have an adverse effect on Nations wellbeing.
Issue: Congress passed a law making it illegal to possess a firearm in a school zone. Does the Commerce Clause authorize Congress to

pass this law?

Holding [Rehnquist]: No. Affirmed. Act neither regulates a commercial activity nor contains a requirement that the possession be
connected in any way to interstate commerce. Therefore, it exceeds the authority of Congress to regulate Commerce among the
several states. If we were to accept Governments arguments, we are hard-pressed to posit any activity by an individual that
Congress is without power to regulate.
Reasoning: Three broad categories of activity that Congress may regulate under its commerce power:
1) The use of channels of interstate commerce
2) Instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only
from intrastate activities.
3) Activities having a substantial relation to interstate commerce i.e., those activities that substantially affect interstate
a. Within this final category, our case law has not been clear whether an activity must Affect or substantially affect
interstate commerce in order to be within Congress power.
b. We conclude...that the proper test requires an analysis of whether the regulated activity substantially affects interstate
If this Act is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate
Section 922(q) is a criminal statute that by its terms has nothing to do with commerce or any sort of economic enterprise,
however broadly one might define those terms.
Neither the statute nor its legislative history contains express congressional findings regarding the effects upon interstate
commerce of gun possession in a school zone
Concurrence (Kennedy, OConnor): In these circumstances, the states may perform their role as laboratories for experimentation to
devise solutions.
Concurrence (Thomas): Thinks the Court should reconsider the Substantial effects test with an eye toward constructing a standard
that reflects the text and history of the Commerce Clause without totally rejecting recent Commerce Clause jurisprudence.
Dissent (Stevens): Congress power to regulate commerce in firearms includes the power to prohibit possession of guns at any
location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession I n particular
Dissent (Souter): Commerce power is plenary the practice of deferring to rationally based legislative judgments is a paradigm of
judicial restraint.
Dissent (Breyer, Stevens, Souter, Ginsburg): Courts holding threatens legal uncertainty in an area of law that until this case seemed
reasonably well settled.

Court ends up ruling that Congress has overstepped Constitutional authority. The law is unconstitutional.
Court creates a new three-part test for evaluating statutes under the commerce clause.
Court identifies three situations where Congress can regulate commerce clause:
o (1) Congress can regulate the channels of interstate commerce (e.g. highways in Heart of Atlanta)
o (2) Congress can regulate the instrumentalities, persons or things in interstate commerce, even if the
threat to interstate commerce comes from purely instra-state activities (e.g. the railway line in
Shreveport rate)
o (3) Congress can regulate when there is a substantial relation to interstate commerce. When an activity
substantially effects interstate commerce. (e.g. Maryland v. Worst court upheld a fair wages act.)
Some way this isnt a new test some say it is. Scholarly debate. Just know that theres some debate as to
whether this is a new test. But, if asked for evaluation of how the court will rule of interstate commerce you
o As a matter of law, this is what the court uses today.
o Court concedes that there is uncertainty as to whether (3) requires just an effect, or a substantial effect.
Court ultimate concludes that they will apply a substantial effect test. Congress can regulate where an
activity SUBSTANTIALLY AFFECTS interstate commerce.
Vague: The court doesnt tell us way, it just tells us that this is so. (This could also be a critique
you have of the test on the exam why does it have to be substantial? Court doesnt give us a
Court then goes on to apply this test to the Gun Free School Zone Act says very quickly that the battleground
in this case is whether Congress is trying to regulate an activity that substantially affects interstate commerce.
Its not (1), because this is clearly not an issue of regulating channels, nor is it (2), because this is not a matter

relating to the instrumentalities, persons, or things in interstate commerce. The court says it is therefore part of
(3) Is Congress trying to regulate an activity that substantially affects interstate commerce?
o Court seems to take a LESS deferential approach to Congress. On p. 170, Court suggest that it wants
FINDINGS, reports, studies, analyses, that show that the activity here (gun carrying near schools)
substantially effects interstate commerce. The court will no longer take Congress word it wants
PROOF. It wants Congress to SHOW the court that it has some reason connected to interstate commerce
to regulate.
o Because Congress has not shown the connection to interstate commerce, the court rules that Congress
cannot pass this law.
Congress has given the following justifications
(1) Cost of violent crime is substantial and will affect the national economy through
insurance costs and reduce travel.
(2) Guns will harm the educational process and learning environment, which will in turn
substantially effect interstate commerce because of the less productive citizens that
school will produce.
o Court says, these justifications are NOT ENOUGH.
o Why not? Court is worried about what would happen if it DID accept those
P. 171: If Congress can use commerce clause to regulate things that
affect the learning environment, then it can regulate education itself.
No longer anything left to the exclusive purview of the states with
regard to education, a matter, historically, of state jurisdiction.
P. 171: To uphold the Governments contentions here, we would have
to pile inference upon inference n a manner that would bid fair to
convert congressional authority under the Commerce Clause to a
general police power of the sort retained by the states.
Court says previous cases MIGHT have suggested otherwise but NOT
The constitution enumerates powers, and that enumeration exists for a reason.
o Court says we want to respect this enumeration of power. Theres a difference
between national and local authority, between federal and state jurisdiction,
between commercial and non-commercial and the court says, it is our task to
enforce this distinction.
So court invalids the law. Why? Because Congress has not PROVEN
that there is a substantial effect on interstate commerce.
The court basically wants Congress to prove something that it hasnt
been able to prove (with data, proof, studies, analysis, that
substantiates, the quantifies, the impact on interstate commerce).
Worth nothing that the reasoning of the majority in this case is very similar to the
reasoning in some of the cases we read before 1937 (Dagenhart, Carter Coal). Pre-1937,
Court was worried about Congress swallowing up everything. This appears to be exactly
what the court is saying here if we let Congress regulate this noncommercial activity,
then theres nothing that Congress cannot do.
o In a sense, any conduct in this interdependent world of us has an ultimate commercial origin or
consequence, but we have not yet said that the commerce power may reach so far.
o We need to return to an original understanding of the commerce clause (whatever this means).
The aggregation principle is clever, but has no stopping point
o Guns are articles of commerce, and Congress should have the power to regulate guns possession
anywhere because of their potentially harmful use.

We should defer to Congress reasonable judgments about whether something has an affect on
interstate commerce. Congress power is large (plenary) Congress power is large and we should
respect that power.
o Makes a connection between guns and the national economy. Argues that there are a lot of studies that
connect guns to education, which has a connection to the economy therefore, that is sufficient as a
basis from which Congress can regulate guns in school zones.

(1) Lopez marks the end of the blank check era for Congress as relating to its commerce powers. Lopez taught us that
there are limits to Congress authority under the commerce clause.
(2) Lopez creates (arguable) a new test(?) for evaluating constitutionality of Congress use. Congress can act in 3
instances after Lopez:
(i). In regulating channels of interstate commerce.
(ii). Regulating the instrumentalities, persons, or things, in interstate commerce, even if the threat to interstate
commerce comes from purely intrastate.
(iii). Where there is a substantial relation to interstate commerce.

Do you agree with the Lopez majority?

Which Commerce Clause test do you think the Court should use?
Could Congress have done anything to convince the Court of the constitutionality of the Gun-Free School
Zones Act under the Commerce Clause?
Is Lopez an outlier or the new normal when interpreting the Commerce Clause?

If you thought that Lopez was an outlier, we now know it is not. It is the new normal. Congress cannot treat CC
as a blank check, and Morrison affirms that.
Also: Morrison seems to call into question the aggregate (stipulation) in Wickard Morrison seems to suggest

United States v. Morrison (p. 174, 2000)

Facts: Statute that provides a civil remedy for victims of gender related violationsthe violation of women (genderrelated violent). Women raped by players of the Virginia Tech football team. Christy Brzonkala enrolled at Virginia Tech
in the fall of 1994. Shortly after enrolling, she was allegedly repeatedly sexually assaulted by two varsity football players,
including Respondent. After the incident Brzonkala suffered severe emotional distress. She twice participated in
academic hearings against Respondent and later dropped out of the school. She finally brought suit against the two male
students, including the Respondent and the university in Federal District Court
Issue: Is Section: 13981 of VAWA (the civil liability provision) a constitutional exercise of Congress commerce power?
Holding [Rehnquist]: No. Commerce Clause regulation of intrastate activity may be upheld only where the activity being
regulated is economic in nature (esp. in areas the Court regards as traditionally regulated by the states).
Reaffirmed the 3-part test in Lopez.
Existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause
Constitution requires a distinction between what is truly national and what is truly local. 10th Amendment as
Therefore, the Violence Against Women Act does not substantially affect interstate commerce. Moreover, if
Congress is going to make an aggregate effects test argument, the intrastate activities MUST be considered in the
aggregate only if the activities themselves are economic in nature.
Concurrence (Thomas): Would go significantly further than the majority in limiting the scope of Congress commerce
power. He argues that the Substantial Effects Test is TOO lenient. Until this court replaces its existing Commerce Clause
jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress

appropriating state police powers under the guise of regulating commerce.

Dissent (Souter, Stevens, Ginsburg, Breyer): Stressed the need for judicial deference to congressional fact-finding.
Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate
commerce. Fact of the substantial effect is a question for Congress, not the courts. Congress had conducted voluminous
hearings and found that violence against women has an enormous effect on the American economy.
The court strikes down the violence against women act.
Morrison makes clear that Lopez is not a speed bump in the Supreme Courts Commerce Clause jurisprudence,
but rather a new direction altogether.
o The Supreme Court is more capable of reining in congressional action as not substantially related to
interstate commerce.
Oral Argument: The losing argument this should be part of the CC. Listened to it.
o Policy best left for congress, in Lopez, the court was stepping into the shoes of congress, RA proposes:
instead of this interpretation, isnt the court just reigning congress in? And simply evaluate whether
congress reasons were valid enough to meet the test the court has set.
RA: Shouldnt there be some oversight over congress when they say, Yeah, we have proof. Even if we believe
the court is amateur statisticians, cant be assume that the court will make a good-faith effort to assess and
evaluate the information they are given?
Argument: Violates the spirit of the Constitution, Congress is trying to circumvent the powers granted to it by
the Constitution
o Can you protect the spirit while violating the text?
o Can you violate the spirit while not violating the text?
The court is moving a goal post here, in 95 in Lopez, the court says: you have no finding, you didnt prove it. The
Court, knowing that congress anticipates this finding argument; the court argues the point of data. The court is
shifting the goal post here, and even if congress had given the court what they wanted here, the court would
have moved the goal post even further.
5-4 decision, congress has had considerably greater latitude than our previous case law has permitted.
o In Lopez, the court rules. Unfetter authority here there is no economic activity to be regulated and
although congress has posted finding about gender-motivate violence and its impact of families under
the commerce clause.
Congress needs to do MORE; They need to do more than publish findings on economic impact.
13981 is supported by numerous findings regarding the serious impact that gendermotivated violence has on victims and their families. But the existence of congressional
findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause
We reject the argument that congress may regulate noneconomic, violent criminal conduct based solely on
that conducts aggregate effect on interstate commerce. The Constitution requires a distinction what is truly
national and truly local.
Similar, in an opposite way, to Wickard (A conservative wrinkle)

In your view, which Justice got it right in Morrison?

In the zero-sum battle between the Commerce Clause and the 10th Amendment, the latter now appears to
be winning. Is this the right balance?
Does the Morrison approach result in overruling Heart of Atlanta Motel?
Does Sebelius settle the meaning of the Commerce Clause?
Natl Federation of Independent Businesses v. Sebelius (p. 182, 2012)
Facts: Congress passed the Patient Protection and Affordable Care Act, which requires Americans to purchase health insurance or
pay a penalty (oh wait, a tax).
Issue: Is it within Congress Commerce Clause authority to pass this law?

Holding [Roberts]: No. The federal government is of limited powers in contrast to the states, which can do anything that the
constitution does not allow it to do.
The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional
grant of power authorizes each of its action.
Concurrence/Dissent [Ginsburg, Sotomayor, Breyer, Kagan]: The Chief Justices crabbed reading of the Commerce Clause harks back
to the era in which the Court routinely thwarted Congress efforts to regulate the national economy in the interest of those who
labor to sustain it. It should not have staying power.
The reading of the N&PC is too strict here. This reading goes against the broad McCulloch standard of convenient and useful and
now were saying ONLY WHEN its necessary and useful.
We long ago rejected the view that the N&PC demands that an Act of Congress be absolutely necessary to the exercise of an
enumerated power [] Rather, the statutory provision at issued need only be conducive and reasonably adapted to the goal
Congress seeks to achieve. The minimum coverage provision meets this requirement.
Dissent [Scalia, Kennedy, Thomas, Alito]: The problem is that the mandate focuses on goods and services that people do not
purchase. They are not participants in that market, and cannot be made so (and thereby subjected to regulation) by defining
participants to include all those who will, later in their lifetime, probably purchase goods or services.
All of us consume food, and when we do the Federal Government can prescribe what its quality must be and even how much
we must pay. But the Government cannot say when and what we will buy.
Dissent [Thomas]: A substantial effects test under the CC is inconsistent with the original understanding of Congress powers and
with this Courts early CC cases. The Courts continued use of that test has encouraged the Federal Government to persist in its view
that the CC has virtually no limits. The Governments unprecedented claim in this suit is a case in point.

What is Congress reasoning? Why can we use the CC to force people to buy health insurance?
o Congress argues: the failure to buy health insurance, effects interstate commerce. And therefore we, as
congress, can force you to buy something.
According to the Government, the health care market is characterized by a significant costshifting problem. [Everyone will need at some point no insurance, hospital has to pay
hospitals receive funding from the government to help, but not all this cost is shifted upon
insurance insurance passed this on to policy-holders Congress estimated that
uncompensated care raised family health insurance premiums, on average, by over $1,000 per
The Government contends that the individual mandate is within Congress power because the
failure to purchase insurance has a substantial and deleterious effect on interstate commerce
by creating the cost-shifting problem.
Congress has never attempted to rely on [CC] power to compel individuals not engaged in
commerce to purchase an unwanted product.
The Court says, YES, Congress has broad authority, but THIS case here makes people buy
a product they dont want. Congress has NEVER done this before.
o You cant force someone to buy something and then say, OH WOW, now I can
regulate how you use it. That troubles the Court.
The language of the Constitution reflects the natural understanding
that the power to regulate assumes there is already something to be
regulated. As expansive as our cases construing the scope of the
commerce power have been, they uniformly describe the power as
reaching activity.
Distinction between Activity and Inactivity.
Congress can regulate activity NOT inactivity.
o The individual mandate does not regulate existing
commercial activity. It instead compels individuals to
become active in commerce by purchasing a product, on
the ground that their failure to do so affects interstate

Can Congress force you to eat a balanced diet?

Unhealthy diets eventually lead to increased health costs and forces the government to pay the costs of people
being fat so how do you distinguish this from forcing people to buy health care?

What about the Necessary and Proper Clause?

Does is bring into power the congress to pass this authority.

Since Congress does not have the power to use this under the CC clause, there is no BASIS for them to have power
under the N&PC. (Comstalk and McCullough) (its used to expand authority already in existence

Would you have sided with the Ginsburg concurrence or the Scalia/Kennedy/Thomas/Alito dissent?


Sebelius case: congress cannot use the CC to pass the Affordable Health Care Act of 2010. Puts the brakes on Morrison.
Champion (Lottery): Congress was able to prohibit lottery tickets.
Shreveport: Regulate intrastate
Darby: Regulate production and manufacturing
Wickard: Aggregate small effects into a larger interstate effect
Heart of Atlanta: Private conduct using the CC
Congress could do NO wrong after the New Deal UNTIL 1955
The 10th Amendment means something and congresss power is NOT unlimited.
Sebelius Case
Are Morrison/Lopez the rule?
RA: It confirms that Lopez and Morrison are NOT exceptional. They are HOW we evaluate congress power. The
New Deal line of cases is implicity repudiated and dead.
It also tells us something unique about Wickard the holding in Wickard has changed a bit the court makes a
distinction between activity and inactivity We can read Wickard aggregate principal as applicable but ONLY related to
activity, NOT inactivity.
So now you could probably make an aggregate argument for ACTIVITY but certainly not any in-activity (ie.
NOT buying health insurance)

How many tests?

1. Indirect/Direct TestCarter Coal. RW 150
2. Production v. Commerce DistinctionHammer v. Dagenhart. RW 144
3. Close and substantial relationship testShreveport, NLRB, Darby. RW 142 (TECHNICALLY: Lopez/Morisson/Sebilius
are a refined version of C&S)
4. McCullough Test, encountered in the N&PC discussion, and it has been used in the Commerce Clause discussion.
Address here whether you think Wickard as a separate test. RA: Its ONE WAY to see if something substantially effects
interstate commerce. Its NOT a new test.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises ...

This practice of regulating by taxing is generally OKAY, but only if congress is taxing something that it has the
power to regulate under Article I.
The case we read in this section asks: What if congress tries to regulate something that it does not have the
power to regulate?

Are there textual limits to Congress power to tax?

There are 3 textual limitations to congress power to tax:
1. Taxes have to be uniform across the US.

o Geographically uniform, same effect everywhere we find that thing being taxes.
2. Direct taxes must be proportional amongst the states.
o The state by state revenue has to be apportioned among the states according to population.
As measured by the previous census, regardless of per capita wealth.
3. No tax can be charged on exports.
o An export is a good intended for shipment. Congress cannot tax export if it relates to the transit of the
goods (like premiums paid on insurance for the trip) JUST NOT IN TRANSIT.
Functional Limits (Todays Lecture)
o Whether congress can use taxing power for regulation.
o Is congress passing the tax to regulate or to penalize?
Think back to Lopez, congress cant use CC to pass the Guns Free School Act. Now imagine, after
this decision, congress re-passed this act and called it something else Gun Free School Tax
Act $10k tax on anyone who carries a gun in a school zone.
Someone sues and challenges this?
Bailey v. Drexel Furniture Co. (p. 195, 1922)

Facts: (Drexel Furniture Company) manufactures furniture in NC. Received notice from the IRS that is had been assessed $6,312.79
for having a boy under 14 years old working under it in 1919 thus incurring a 10% tax on its net profits. paid the tax, but under
protest. After failure to be refunded, brought this suit. On demurrer to the amended complaint, judgment was entered for the
company against the collector for the full amount, with interest
argues: The Child Labor Tax Law is attacked on the ground that it is a regulation of the employment of child labor in the
statesan exclusively state function under the federal Constitution and within the reservation of the 10 Amendment.
argues: This is a mere excise tax levied by Congress under its broad power of taxation conferred by section 8, article 1, of the
federal Constitution
RA (Issue): Can Congress regulate business hiring practices by imposing a tax? RA (Holding): No.
Issue: We must construe the law and interpret the intent and meaning of Congress from the language of the act. . . Does this law
impose a tax with only that incidental restraint and regulation which a tax must inevitably involve? Or does it regulate by the use of
the so-called tax as a penalty?
Holding [Taft]: Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking to take over to its control
anyone of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are
reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce
it by a so-called tax upon departures from it. SLIPPERY SLOPE!
To give such magic to the word "tax" would be to break down all constitutional limitation of the powers of Congress and
completely wipe out the sovereignty of the States. (p. 196)
Tax v. Penalty
Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining
revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose
their character as taxes because of the incidental motive.
But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and
becomes a mere penalty with the characteristics of regulation and punishment. Such is the case in the law before us. (p. 196)
How do they come to this?
o The amount is not to be proportioned in any degree to the extent or frequency of the departures (p. 196)
o So here, the so-called tax is a penalty to coerce people of a State to act as Congress wishes them to act in respect of a
matter completely the business of the state government under the Federal Constitution (p. 197)

The court declared unconstitutional a federal tax on companies that shipped in interstate commerce goods
made by child labor.
o The Court found that the law violated the 10th Amendment and usurped prerogatives reserved to the
states. Not surprisingly, the Court declared unconstitutional the federal tax that attempted to
accomplish the same thing as the earlier federal law that been invalidated in Dagenhart.
The Court based its decision on a distinction between a true tax and a penalty for a violation of a commercial
o The court explained that although taxes could have an incidental regulatory effect, a tax is
unconstitutional when in the extension of the penalizing features of the so-called tax . . . it loses its
character as such and becomes a mere penalty with the characteristics of regulation and punishment.
Class Discussion:

In Dagenhart the court ruled that congress could not regulate child labor using the CC.
And since Congress cant use the CC to do that, the court here, rules that congress cant use the same objective
under tax.
Court: The tax is trying to regulate the intrastate power of regulation child labor laws.
o Congress responds, that is an excise tax, under Article I.
So is it a penalty?
THEORY: Separation of Powers; the role of states (10th amendment).
The court thinks this is a GOOD IDEA, but congress does not have this power under their taxing power.
o Back to Dagenhart, it couldnt do it using the CC, and here we have congress turning around, and tries to
do the very same thing using the Taxing power.
Congress is trying to achieve by taxing, what it could not achieve by direct regulation.

Question 2 (RW 197): Is Dagenhart still valid? In Bailey, note the Courts reliance on Dagenhart and that decisions
interpretation of the CC and the 10th Amendment. Does the court still adhere to these views? If not, how has the Courts
attitude changed? How would this affect the Courts analysis today?
(See Dagenhart dissent on p. 146 by Justice Holmes)
o DISSENT: (becomes law after Darby Fair Labor Standards Act) The statute only regulates manufacture
IF the manufacturer wants access to the interstate market.
Sees no interference here. The power to regulate includes the power to prohibit, and its ok if there are indirect
consequences for the states police power.
o The state doesnt have to change its policy can allow kids of any state to work. The firm will just have
to change its policy if it wants access to the interstate market.
I would probably say that the court, using Darby and echoing this dissent, could argue that the tax is fair if you
WANT to participate in interstate commerce? If the manufacturing and everything was limited to JUST intrastate
activities, maybe there would be an issue?
United States v. Sanchez (p. 197, 1950)
Facts: Marihuana Tax Act.
s argue: attack the constitutionality of this subsection on the ground that it levied a penalty, not a tax. ( is a transferor).
In enacting the MTA, Congress had 2 objectives:
1) The development of a plan of taxation which will raise revenue and at the same time render extremely difficult the
acquisition of marihuana by person who desire it for illicit uses.
2) The development of an adequate means of publicizing dealings in marihuana in order to tax and control the traffic
The code makes it unlawful for any person to transfer marihuana except in pursuance of a written order of the transferee on a
blank form issued by the Sec. of the Treasury.
o 2590 requires the transfer of $1 per ounce or fraction thereof if he has paid the special tax and resisted, OR
o $100 per ounce or fraction thereof if he has NOT paid the special tax and registered.
The transferor is also made liable for the tax so imposed, in the event the transfer is made without an order form and
without payment of the tax by the transferee.
Issue: Is this tax constitution? (NO).
Holding [Clark]: First:
A tax is not invalid merely because it regulates, discourages, or deters the activities taxed, nor because the revenue obtained is
negligible, or the revenue purpose is secondary.
A tax is not invalid merely because it affects activities which Congress might not otherwise regulate.
The tax levied by 2590(a)(2) is not conditioned on the commission of a crime, and it may properly be treated as a civil, rather
than a criminal, sanction.
o That Congress provided civil procedure for collection indicates its intention that the levy be treated as civil in character.
The civil character of the tax of $100 per ounce imposed by 2590(a)(2) is not altered by its severity in relation to the tax of $1
per ounce levied by 2590(a)(1).
Unregistered persons are not likely to procure the required order form prior to transfer or pay the required tax. Free of
sanctions, dealers would be prone to accommodate such persons in their unlawful activity.
The imposition of equally severe tax burdens on such transferors is reasonably adapted to secure payment of the tax by

transferees or stop transfers to unregistered persons, as well as to provide an additional source from which the expense of
unearthing clandestine transfers can be recovered. (p. 199)

If you look at the dates, you might understand why we see this shift
o Comes WELL after the switch in time that saved 9.

What is the connection between the commerce and taxing powers?

In the 20th century the taxing and CC powers have risen and fallen in parallel, but the constitution DOES NOT
require them to be that way.

What explains the shift in the Courts approach from Bailey to Sanchez?

Would that be Darby?

Would the Gun Free School Zones Tax Act be constitutional?

What is considered a tax?
Natl Federation of Independent Businesses v. Sebelius (p. 199, 2012)
Facts: Congress requires individuals to have health insurance. If they do not maintain this coverage, they must make a shared
responsibility payment. The amount is described as a penalty. Counted as a % of household income.
Issue: Is this payment a lawful exercise of the taxing power?
Holding [Roberts]: Yes. The Court accepts that Congress has broad authority to enforce taxes.

RA: This is a strange decision particularly the jurisdictional part of the decision.
Jurisdictional purposes its a penaltynot a tax. But when considering the taxing power, they see it as a tax.
If its a tax, you cannot refuse to pay it, in order to challenge the law.
o But its not effective yet. WHAT are you challenging here?
Advisory Opinion situation.
Indeed, [e]very tax is in some measure regulatory. To some extent it interposes an economic
impediment to the activity taxed as compared with others not taxed. That 5000A seeks to
shape decisions about whether to buy health insurance does not mean that it cannot be a valid
exercise of the taxing power.
In distinguishing penalties from taxes, this Court has explained that if the concept of penalty
means anything, it means punishment for an unlawful act or omission.
Congresss ability to use its taxing power to influence conduct is not without limits. A few of
our cases policed these limits aggressively, invalidating punitive exactions obviously designed to
regulate behavior otherwise regarded at the time as beyond federal authority. More often and
more recently we have declined to closely examine the regulatory motive or effect of revenueraising measures.
Court: Its a tax.
Government: its not a tax.
o Watched a video of various Democrats saying that its NOT a tax. RA: It doesnt matter much
constitutionally, but it matters politically.
o P. 203, Our precedent demonstrates that Congress had the power to impose the exaction in 5000A
under the taxing power, and that 5000A need not be read to do more than impose a tax. That is
sufficient to sustain it.
The question of the constitutionality of action taken by Congress does not depend on recitals
of the power which it undertakes to exercise.
Parallel to Commerce Clause by saying congress even if you tell us, were going to look ourselves and find out if
its a penalty or a tax.
o Congress is taking a modern, data-driven approach to more than JUST the commerce clause.
Statutes have two meanings; it should adopt the meaning that does not violate the constitution. That is why
this can be constitutional on one power, and unconstitutional on another.
o Deferring to congress and seeing laws upheld.

o It speaks to efficiency. (but doesnt the separation of powers make it inherently inefficient?)

Do you view the shared responsibility payment as a penalty or a tax?

Why is it fine that the court is taking an independent view?

The Solicitor General argued that it was a tax in oral argument, but what about the larger institutional question
Pragmatism. Political element here

Should it matter that Congress did not frame the shared responsibility payment as a tax? The Court says
no. Do you agree?

TP thinks it is a political question and should be dismissed.

So What?
1. Under Sebelius, Congress labeling DOES NOT MATTER. The court will peal back the layers of the law and look into
exactly what the text says
2. If a statute has 2 possible meanings, 1 that violates the constitution and 1 that does not, the court should adopt the
reading that does not violate the constitution.


The spending power is in the same section as the taxing power.

From the taxing power, we infer the power of Congress to spend the revenues from the taxes they collect.
o SCOTUS has not entertained any serious challenges to Congress spending power


The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States, but all Duties, Imposts and Excises shall be uniform throughout the United States.
Must Congress exercise its Spending Power in connection with an enumerated power?
United States v. Butler (p. 206, 1935)
Facts: Congress passed the Agricultural Adjustment Act of 1933 to provide payments to farmers in exchange for reducing their farm
acreage for certain commodities.
Issue: Is the law a proper use of the Spending Power?
Holding [Roberts]: No. The taxing and spending power is broad that is, not limited to the enumerated list of issues in Article I,
Section 8 of the Constitution.However, the grants in this case were given to discourage production of crops beyond the limits set
by the Act. This is beyond the powers delegated to the Federal Government. Specifically, the regulation of agriculture is, absent a
nexus with interstate commerce, delegated to the states.
Reasoning: The federal government is a government of delegated powers. It has only such as are expressly conferred upon it and
such as are reasonably to be implied from those granted. This is a 10 Amendment case just as much as a Spending Power Case!

The court agrees with Hamilton. The power is NOT limited, but rather broad. The spending power is an
independent power not restricted to the scope of other congressional powers.
o Still ends up striking down the law. Even though it took the broad reading.
We are not now required to ascertain the scope of the phrase "general welfare of the United States," or to
determine whether an appropriation in aid of agriculture falls within it.

Wholly apart from that question, another principle embedded in our Constitution prohibits the
enforcement of the Agricultural Adjustment Act. The act invades the reserved rights of the states. It is a
statutory plan to regulate and control agricultural production, a matter beyond the powers delegated
to the federal government. The tax, the appropriation of the funds raised, and the direction for their
disbursement are but parts of the plan. They are but means to an unconstitutional end.
Congress is trying to amend the constitution without actually amending it. Congress wants to
say that the Spending Power is a blank check and SCOTUS rejects this. From the accepted
doctrine that the United States is a government of delegated powers, it follows that those not
expressly granted, or reasonably to be implied from such as are conferred, are reserved to the
states, or to the people
o You cant try, Congress, to circumvent your limitations.
It is an established principle that the attainment of a prohibited end may not be accomplished under the
pretext of the exertion of powers which are granted. Should Congress, in the execution of its powers, adopt
measures which are prohibited by the constitution, or should Congress, under the pretext of executing its
powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the
painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was
not the law of the land.
o Congress has a response to this: Well, what were doing is okay because this is a voluntary opt-in
program. Farmers have a choice.
Congress has no power to enforce its commands on the farmer to the ends sought by the Agricultural
Adjustment Act. It must follow that it may not indirectly accomplish those ends by taxing and spending to
purchase compliance. The Constitution and the entire plan of our government negative any such use of the
power to tax and to spend as the act undertakes to authorize. It does not help to declare that local conditions
throughout the nation have created a situation of national concern, for this is but to say that, whenever there
is a widespread similarity of local conditions, Congress may ignore constitutional limitations upon its own
powers and usurp those reserved to the states.
o Rejection of the Aggregation argument
o COMPATE TO commerce clause cases: Court will not pile inference upon inference to allow a federal
regulatory scheme
If, in lieu of compulsory regulation of subjects within the states' reserved jurisdiction, which is
prohibited, the Congress could invoke the taxing and spending power as a means to accomplish
the same end, clause 1 of 8 of Article I would become the instrument for total subversion of
the governmental powers reserved to the individual states.
Chem Gem: Congress has broad power to tax and spend for the general welfare, so long as it does not violate
other constitutional provisions.
Madison: Congress can use Spending Power only in connection with enumerated Powers.
o Constricted viewthey must be inferred from the other powers.
o RA: Similar to how McCullogh Court views N&PC
Hamilton: Broad interpretation, general
o Broad power to spend, unless it conflicts with another Constitutional provision (here, 10th Amendment)


- Spending Clause is included in Article 1 Section 8, which is the powers of congress.
- J. Stone Dissent: 210
South Dakota v. Dole (p. 210, 1987)
Facts: Congress passed an act requiring the Secretary of Transportation to withhold 5% funding to any state with a legal drinking age
lower than 21.
Issue: Is the law constitutional under the Spending Power?
Holding [Rehnquist]: Yes. The court takes the Hamiltonian view of the spending power. BUT, there are limits! 5 Limits [TEST]:
1) Exercise of the Spending Power must Further/Promote the General Welfare.
a. Defer to congress for this
2) Congress must condition its spending unambiguously, so the states can reject or accept it with all available information.

a. Basically a transparency/disclosure point

3) The conditions set by congress must be related to a federal interest in particular national projects or programs.
a. Cant be an effort to regulate a purely local concern.
4) There may be other constitutional restrictions, independent, on Congress use of the Spending Power.
a. Essentially: The Condition imposed on the States must not in itself be unconstitutional.
b. RA: A little vague as a limit.
c. E.g. Condition funding on states inflicting Cruel and Unusual Punishments
5) Congress cannot create a financial inducement that is so coercive that it passes the point at which pressure turns into
Dissent [OConnor]: Disagrees with the third part. O'Connor disagreed with the Court's finding that withholding federal highway
funds was reasonably related to deterring drunken driving and drinking by minors and young adults.
She argued that the condition was both over and under-inclusive: it prevented teenagers from drinking when they are not
going to drive on federal and federally funded highways, and it did not attempt to remedy the overall problem of drunken
driving on federal and federally funded highways.
- She held the relation between the condition and spending too attenuated: "establishment of a minimum drinking age of 21
is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose."

This case is a good look at HOW the courts create a comprehensive test. Compare to Lopez, do you like these
big, all-inclusive, tests?
o These tests are created by looking back at past holdings and dissents.

With whose interpretation of the Spending Power do you agree: Madison or Hamilton?
The risk of losing 5% of available highway funds does not amount to coercion. But what about 10%? 20%?
30%? At what point does an incentive become coercive?
Do you agree with Justice OConnors dissent?
So what?
1. As between a narrow Madisonian and a broad Hamiltonian, the court has adopted a broad reading of the spending
power. But even under this, there are limits.
2. There are 5 limits to Congress use of the Spending Power. Found in the Dole case.
(1) General welfare;
(2) Clarity/Transparency;
(3) Relatedness/Germanenessrelate to a national project;
(4) Other constitutional restrictions;
(5) Coercion.
Natl Federation of Independent Businesses v. Sebelius (p. 215, 2012)
Facts: Obamacare introduced changes to Medicaid. ACA Expands Medicaid to cover MORE than children/elderly etc. The Presidents
vision is to cover EVERYONE. But it requires states to bare a portion of the new costs and if a state doesnt follow this new lawthey
risk losing NOT ONLY the new federal funds, but also all of the federal Medicaid money that was flowing to the state before it.
Issue: May Congress penalize states that choose not to participate in these changes by taking away their existing Medicaid funding?
Holding [Roberts]: No. In this case, the financial inducement Congress has chosen is much more than relatively mild
encouragement it is like a gun to the head. [COERCIVE].
It doesnt look like Congress is amending Medicaid, Congress is creating a NEW program, and the court says it would be
okay to use the Spending Power to amend an existing program, but the SP does not allow for post acceptance condition.
States have no real option
States count on Medicaid to cover up to 20% of their TOTAL budget (Compare to Doles 5% of JUST highway funds)
Dissent/Concurrence? [Ginsburg]: Yes, there are federalism-based limits on the use of Congress conditional spending power. In the
leading decision in this area, Dole the Court identified four criteria. The conditions placed on federal grants to States must (a)
promote the general welfare, (b) unambiguously inform States what is demanded of them, (c) be germane to the federal
interest in particular national projects or programs, and (d) not induce the States to engage in activities that would themselves be
The Court in Dole mentioned, but did not adopt, a further limitation, one hypothetically raised a half-century earlier: In
some circumstances, Congress might be prohibited from offering a financial inducement . . . so coercive as to pass the

point at which pressure turns into compulsion. Prior to todays decision, however, the Court has never ruled that the
terms of any grant crossed the indistinct line between temptation and coercion.
The coercion inquiry appears to involve political judgments that defy judicial calculation.

(1) Severability?
o Severability refers to (its a doctrine really) a question: whether a part of a law found constitutional can
be severed from the law because that part of the law in the larger law is unconstitutional, whether that
narrow unconstitutional part can be severed from the law in order to preserve the constitutionality of
the law.
Basically, can you erase the unconstitutional part from an otherwise constitutional law?
Im okay with severability on THESE facts and facts similar to it, but to say as a matter of law,
GENERALLY, severability is okay, is problematic.
o The question remains whether todays holding affects other provisions of the Affordable Care Act. In
considering that question, we seek to determine what Congress would have intended in light of the
Courts constitutional holding. The question here is whether Congress would have wanted the rest of
the Act to stand, had it known that States would have a genuine choice whether to participate in the
new Medicaid expansion. Unless it is evident that the answer is no, we must leave the rest of the Act
intact. We are confident that Congress would have wanted to preserve the rest of the Act. (p. 220)
(2) Whether we think these amendments are coercive?
(3) Are we okay with the remedy here?
o RA: The court says that if a state agrees to participate in the program, then that authorizes the Sec. of
Health to withdraw funds from the states that fail to comply with the new law.
o Louisiana didnt opt-in, so what does that mean? You can have a different health care regime in La. than
you do in other states.

Is coercion a fifth limitation on Congress use of the Spending Power?

Is it proper for the Court to sever unconstitutional portions of the law?



The executive Power shall be vested in a President of the United States of America.
What is an implied presidential power?
In times of emergency, POTUS has been able to expand his power due to the crisis at hand. (see Patriot Act)
Vesting Clause: Exec. Power is vested in POTUS.
What can we infer from the differences in the enumeration of powers as between Article I & Article II?
Article II lacks a clause authorizing the executive to exercise implied powers that are necessary and proper to

carrying out his express powers.

By contrast, Article I, Section 8, Clause 18 supplies Congress with the power to enact those laws necessary and
proper to carrying out its express powers.
Nevertheless, POTUS has historically chosen to assume that he possess implied powers.

Ex. George Washington issued a Proclamation of Neutrality when the US was asked to take sides during the French
Revolution. He issued this proclamation despite congressional inaction and lack of constitutional invitation.
Ex. Without a declaration of war, President Lincoln summoned troops and paid them, proclaimed a naval blockade of
the Confederacy and seized ships violating the blockade without prior Congressional approval. He also suspended the
writ of Habeas Corpus.
Ex. President Adams issued an arrest warrant for a person to promote the execution of a treaty.

SCOTUS has recognized implied president powers as well: In re Neagle (1890) the Court recognized an inherent
power of the executive branch to assure the safety of the government, including the Supreme Court, arising out of
its take care enforcement powers. (Article II, Section 3, Clause 5).

Does the N&PC help you understand the concept of implied presidential powers?

Article II lays out the powers of the presidency in very broad terms.
If the President has implied powers, where do you they come from?
And if he does, are they limited? Broad? Is there a comparison between the N&PC and this concept of Implied
Presidential Powers?

Should the presidents constitutional authority change in times of emergency?


Does the Presidents constitutional authority change in times of emergency?
Youngstown Sheet & Tube Co. v. Sawyer (p. 264, 1952) [Steel Seizure Case]
Facts: In 1951, a labor dispute arose between the United States steel companies and their employees in the middle of Korean War.
In 1952, the employees union gave notice of a nationwide strike.
Thereupon, fearful that such a work stoppage would jeopardize our national defense, President Truman issued an order
directing the Secretary of Commerce to take possession of the nations steel mills.
After obeying the orders under protest, the steel companies brought suit in District Court.
The District Court issued a temporary restraining order against the government, which the Court of Appeals stayed.
Issue: Did President Truman have the authority to order the seizure of the steel mills?
RA: Did he act constitutionally in ordering the Secretary of Commerce to seize control of the steel mills?
Holding [Black]: No. There was no statute that expressly conferred upon President Truman the power to seize the mills. There are
no provisions of the Constitution, or combination of provisions thereof, which gave the President the authority to take possession
of property as he did. NO statutory or constitutional authority for the president to do this.

Even though the theater of war be an expanding concept, we cannot with faithfulness to our constitutional system hold that
the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to
keep labor disputes stopping production.
o This is a job for the Nations lawmakers, not for its military authorities.
Concurrence [Jackson]: said that when the President takes actions inconsistent with the will of Congress, his powers are at their
lowest level. Then, he can only rely on his own constitutional powers minus any powers given to Congress on the same matter.
Creates a framework (TEST) for evaluating Presidential Power. **A call to action to Congress**
1. Where Congress gives express/implied authorization, the President is at the apex of HIS power. (See Curtiss-Wright)
2. Where Congress is silent, there is a zone of twilight where the Congress and the president may have concurrent
a. In this case, judging constitutionality of the presidential action is to be based upon the facts of the case.
3. Where Congress has expressly/implicitly prohibited the Presidents action, his power it at HIS lowest level
a. The Congress needs to protect the Separation of Powers principle. Does the President have the right to override them?
Does Congress have the right to undercut the President?
b. Here, Congress had 3 statutory policies inconsistent with this seizure.
Concurrence [Clark]: Where Congress had laid down specific procedures to deal with the type of crisis confronting the President, he
must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the Presidents independent
power to act depends upon the gravity of the situation confronting the nation.
Dissent [Vinson]: Argued that we must consider the context in which the Presidents powers were exercised a national exigency.
The Presidents power to seize the steel mills derives from his duty to executive legislative programs the success of which depends
upon the continued production of steel. Argued that POTUS acted constitutionallynot arbitrarily. Not worried about him usurping
Congress role.

This case calls into question the extent and the source(s) of the emergency powers of the President, if any,
under the Constitution.
RA: This is read as an example of the Presidents domestic authority.
Sawyer = Secretary of Commerce, acting under the direct order of President Truman.
When people refer to this case, they are usually referring to the Jackson concurrence, and the framework he
Inherent v. Implied Powers
o Implied Powers: Refer to powers that are grounded in and inferred from the expressly granted
presidential powers (just like the N&PC clauseANALOGY HERE!).
o Inherent Powers: (This is why Justice Clarks opinions seems to drastic) Powers over and above those
powers explicitly granted in the constitution, and those powers that are not reasonably to be implied
from the express powers.
RW #1: Sailing to ports of call/from ports of call hypo
o Sometimes the situation is not simply there is a law, or no law, but the law is INCOMPLETE or subject to
differing interpretations.
So if the law ONLY to ports of call, but what about ships from FROM France?
So can POTUS detain these ships?
o Inherent Authority Case: A President does NOT have the authority to exceed his
express powers? (I fucked this up).
o RA: Point of the question is to relate to the Youngstown Seizure Case: We need to look at the
Congressional Law, but thats NOT the entire question to ask. Sometimes even when there is a law,
there is still some gaps to fill in

With which justice do you agree in Youngstown?

Jackson! (This is the most important part of the case anyway).
How would you argue your dissent in Youngstown?


Executive Veto v. Line-Item Veto (Legislative)

Legislative Veto: Started using this as early as the 1930s, they would retain some oversight to executive powers granted.
Can Congress reserve a Veto over itself for laws that have already been passed?


Every Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on
a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be
approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives.
What steps are required to pass a bill into law?
Immigration and Naturalization Service v. Chadha (p. 277, 1983)
Facts: East Indian born in Kenya British passport. Lawfully admitted into US in 1966 on a nonimmigrant student visa,
which expired June 30, 1972.
Oct. 11, 1973, the District Director ordered to show cause why he should not be deported for remaining in the US longer than
permitted. A deportation hearing was held, & the Immigration Judge ordered deportation be suspended because he met the
residency, character, & hardship requirements prescribed by 244(a)(1) of the Act.
The suspension was reported to Congress, as required by 244(c)(2) of the Act, & the House of Representatives unilaterally
vetoed the suspension of deportation.
The 9 Cir. held that the House was w/o constitutional authority to order s deportation, & that 244(c)(2) permitting either
the Senate or the House to veto the suspension, violated the constitutional doctrine of separation of power.
Issue: Congress passed a law giving itself a one-house legislative veto over decisions of the INS. Is the one-house legislative veto
constitutional under Article I?
Holding [Burger]: No. Affirmed AC. The one-house veto permitted by 244(c)(2) of the Act violated the bicameral requirement set
forth under Article I of the Constitution. There are but four provisions in the Constitution, explicit and unambiguous, by which one
House may act alone with the unreviewable force of law, not subject to POTUS veto:
1. The House of Representatives alone was given the power to initiate impeachments.
2. The Senate alone was given the power to conduct trials following impeachment charges by the House and to convict
following trial.
3. The Senate alone was given final unreviewable power to approve or disapprove presidential appointments.
4. The Senate alone was given unreviewable power to ratify treaties negotiated by the President.
Everything else happens with BOTH houses of congress acting together in some way.
The bicameral requirement, the Presentment Clauses, the President's veto, and Congress' power to override a veto were
intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating
certain prescribed steps. To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power
of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action
in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both
Houses and presentment to the President. . .

Legislative Veto:
o Typical Legislative Veto Statute will authorize the Legislature to veto a presidential action by one house,
sometimes both, other times it will authorize by simple vote of a congressional committee.
Bicameralism: Both houses of congress participate in the vote.
o The ONLY exceptions to Bicameralism are the 4 listed above.
Presentment: The Presidents Role in the legislative process (when the bill is presented to the President for his
o Congress can get past a presidential veto with a 2/3s majority vote.
Because of this, some scholars argue it is a tricameral branch because the Presidents role is
indispensible in this process.
RA: The Constitution is NOT concerned with efficiency, if it were concerned with efficiency, wed be in a
Dictatorshipthat is the most efficient type of government.
o This is not to say that we dont care about efficiency in a certain way, but when you look to the text of
the Constitution it is often purposely inefficient.
RA: Berger assumes that the legislative veto is NEW legislation, but maybe you could say the legislative veto
here is an exercise of retained power and NOT a new legislative act.

The legislative veto preserves the status quo. It PREVENTS something from happening. The definition of
legislation is to change the status quoto grant new powers, change laws etc.
With this in mind, you could argue that a Veto is NOT legislation, because it preserves the status

So What?
1. The Constitution established non-negotiable legislative parts: bicameralism and presentment.
2. Chada was unconstitutional because it violated both.
3. Something that may be a good idea, that may make sense as a matter of accountability/efficiency, that alone does not
make it constitutional.

Should Congress have a legislative veto?

What constitutional value does the legislative veto serve? What constitutional valued did the Supreme
Court defend in invalidating the legislative veto?
How would you argue a dissent in Chadha?
Does the Constitution authorize a line-item veto?
Clinton v. New York (p. 281, 1998)
Facts: Appellant, President Clinton, exercised his power under the Line Item Veto Act of 1996 by canceling two provisions in the
Balanced Budget Act of 1997 that adversely affected New York. Appellees, New York City and several private organizations,
challenged the constitutionality of the cancellations. The Supreme Court of the United States found that the challengers met both
prudential and Article III standing requirements, and further held that the cancellation provisions in the Line Item Veto are not
authorized by the Constitution.
Issue: Whether the provisions in the Line Item Veto Act that allow the President to cancel certain types of provisions of a law are
RA: Can congress pass a statute that increases presidential power? Should the separation of powers be managed and worked
out by the legislature and executive, or is there something that the court has to defend about the formal document of the
Holding [Stevens]: The Line Item Veto Act is NOT constitutional. There is no provision in the Constitution authorizing the President to
enact, amend, or repeal statutes, although he may initiate and influence legislative proposals. Cancellations are the functional
equivalent of partial repeals of Acts of Congress. The Line Item Veto Act gives the President unilateral power to change the text of
enacted statutes. The Acts cancellation provisions violate Article I 7 of the Constitution.
Concurrence [Kennedy]: Role of the court to settle separation of power disputes. We cannot let the political branches re-calibrate
the powers. The Separation of Powers is not something that can be negotiated
Dissent [Scalia]: Not really a LIV. Its a functional LIV. This law should not have been found unconstitutional.
He also tells Congress what it can do ultimately pass the law. Can pass a law authorizing the President to DECLINE to spend, but
to authorize the President the CANCEL is a tougher sell. Just change the wording of the law to decline instead of cancel.
Dissent [Breyer]: Rejects formalism and its reasoning and embraces a functional stance.

Formalism v. Functionalism.
Even where the President and Congress agree that a law is good, if it violates the Constitution, it is invalid
because the Constitution is the supreme law of the land.
Presidential Veto is for the ENTIRE bill only. All or nothing, not for individual items in bills.
o So the President must ask: Do I destroy the entire bill, or let it pass?
The legislature knows this, so they will include both items that the executive wanted and items
that the executive did not want.
The line item veto reduces congressional power and increased executive power so why would
congress agree to this?
The Line Item Veto here: the functional equivalent to a line item veto, instead of giving
him an ACTUAL line item veto. How?

The power to REFUSE to spend congressional money. (Authority to refuse or

deny certain spending/taxing provisions: (1) any dollar amount of discretionary
budget authority; (2) any item of new direct spending; or (3) any limited tax
benefit. Limited sphere of discretion.
The President could only do this when: (i) reduce the Federal budget
deficit; (ii) not impair any essential Government functions; and (iii) not
harm the national interest.
(1) Constitution authorizes president to veto a bill, but that veto must occur before the bill becomes lawful. In
contrast, the line item veto authorizes president to cancel spending AFTER bill becomes lawful.
(2) Constitution authorizes president to veto an entire bill, but this act lets president cancel only parts of the bill.
(3) Establishes that sole method of repealing is by statute. In contrast, this line item veto allows president to
veto parts of the law.
o In both legal and practical effect, the President has amended two Acts of Congress by repealing a
portion of each. [R]epeal of statutes, no less than enactment, must conform with Art. I. INS v. Chadha,
1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to
repeal statutes.
There are important differences between the Presidents return of a bill pursuant to Article I,
7, and the exercise of the Presidents cancellation authority pursuant to the Line Item Veto Act.
The constitutional return takes place before the bill becomes law; the statutory cancellation
occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory
cancellation is of only a part. Although the Constitution expressly authorizes the President to
play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential
action that either repeals or amends parts of duly enacted statutes.
The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons,
without observing the procedures set out in Article I, 7

So what?
1. The LIV is not a true LIV, a real LIV is found within the states.
2. Clinton v. NY reinforces a textualist/formalist view of the constitution and the dissents expose a more functionalist
3. Even though the LIV might be a good idea, its not constitutional, and goodness of the idea does not make it
constitutionalconformity with the constitutional text makes something constitutional.

Should the President have the power to use a line-item veto?

What are some alternatives to this Line-Item Veto Act?
What are the parallels between this case and Chadha?


Where does the constitutional text grant the President plenary power in foreign powers?

Foreign Affairs Powers (Generally):

The presidents powers in foreign affairs as plenary meaning comprehensive, all-encompassing, totalizing.
o If POTUS power in foreign affairs is plenary, then Congress is not.


The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when
called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the
executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves
and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators
present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other
public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not
herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such
inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions
which shall expire at the end of their next session.


He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such
measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them,
and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall
think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and
shall commission all the officers of the United States.
United States v. Curtiss Wright Export Corporation (p. 315, 1936)
Facts: Congress issued a Joint Resolution authorizing POTUS to ban the sales of arms to countries involved in the border dispute
between Bolivia and Paraguay (Chaco Conflict). President Roosevelt issued a related proclamation prohibiting the sale of arms to
nations engage in conflict in the Chaco. Curtiss Wright violated this. sold arms, violating terms of 1 proclamation & indicted for
conspiracy to sell arms to Bolivia. Roosevelt then revoked his first proclamation in a second proclamation, but left in place any
existing violations.
Issue: May POTUS revoke his first proclamation?
Holding [Sutherland]: Yes.
Question 1: What is the effect of the revocation?
o Revocation of the 1 proclamation doesnt preclude enforcement while it was in force.
Question 2: Did the 2 proclamation repeal the Congressional Resolution authorizing the President to prohibit the sale of arms?
o No. Revocation was meant to create new foreign policy going forward, not to repeal the 1 proclamation.
So the 2 Proclamation reverses what the 1 Proclamation said, but does not necessarily repeal it.
Question 3: Can the President issue a 2 proclamation that reverses the 1 proclamation?
o The answer is obviously yes. Its well within his powers---not only his direct powers, but Congress has blessed him to do
It is important to bear in mind that we are here dealing (4) not alone with an authority vested in the President by an exertion of
legislative power, but with such an authority plus the very delicate, (3) plenary and exclusive power of the President as the sole
organ of the federal government in the field of international relations (2) a power which does not require as a basis for its
exercise an act of Congress but which, of course, like every other governmental power, (1) must be exercised in subordination to
the applicable provisions of the Constitution. (p. 315-16).

1. POTUS broad powers are still subject to the Constitution, which sets the ceiling.
2. POTUS power does not require as a basis for its exercise an act of Congress.
3. POTUS power is plenary and exclusive in international relations.
4. Congress can act in a way that supports POTUS foreign affairs conductthose laws/resolutions give POTUS
political cover to do things that may be unsavorybut these laws/resolutions DO NOT increase POTUS legal

Should the president have such broad authority in foreign affairs?

President represents the US as a united frontspeak with one voice.

President is the only person who represents everyone.

What are the limits to the presidents foreign affairs powers?

They are still subject to the Constitution, which sets the ceiling.
Does it make sense to you that the scope of the presidents powers in foreign affairs is larger than in
domestic matters?

Yes, POTUS is privy to a lot of top-secret informationand is better equipped to make these decisions
especially quick decisions.
Is there something to say about the strength of the nation when POTUS takes a stand in foreign affairs? A united
front in international politics. (Politics stops at the waters edge)
Is there a Legal Argument/Constitutional to make here?
o THE VESTING CLAUSE, (ARTICLE 2, SECTION 1, CLAUSE 1): The Executive Power shall be vested into A President
of the United States. One, singular all of the Executive Powers in the country are given to ONE person.
It is his responsibility to delegate and divide these.

So what?
1. POTUS does not need congressional authorization in FA.
2. POTUS power is plenary, inclusive and all encompassing. Dominant actor.
3. Congress can act in a way that is important to foreign affairs (resolutions) they only give the president political
covernot any additional powers

How much does the Constitution authorize the President to do as Commander-in-Chief?

Does the War Powers Resolution fulfill its own purpose?
If the War Powers Resolution cannot rein in the President in matters of war, what can?
Is the War Powers Resolution constitutional?


What does the Constitution authorize the President to do to fight terrorism?
Ex Parte Quirin (p. 322, 1942)
Facts: During WW2, German pies tried to sneak into US and got caught. FDR ordered them to be tried by Military Commission. They
were found guilty and sentenced to death. The spies then filed a writ of habeas corpus and claimed the Military Commissions
violated the 5 and 6 Amendments because they were not given a normal trial.
Issue: May the President appoint a military commission to try the spies?
Holding [Stone, unanimous]: Yes
The spies were unlawful enemy combatants
Congress had authorized military commissions under the Articles of War
Commissions authorized by both Congress and the Constitution (Commander in Chief Power)
Difference between Lawful Combatants and Unlawful Combatants
o Lawful Combatants must be treated as Prisoners of War
o Unlawful Combatants are subject to trial and punishment for acts which render their belligerency unlawful
Spies are unlawful combatants because they are ununiformed and/or are outside the traditional theater of war

From where does the President derive the authority to create military commissions?
Do you have any objection to applying the death penalty in a closed military commission to a U.S. citizen?
Should the president have the authority to create military commissions? Do they comport with your
conception of justice?
What rights does an American citizen have if labeled a terrorist?
Hamdi v. Rumsfeld (p. 325, 2004)

Facts: Hamdi, a US citizen, was captured by the military in Afghanistan in 2001. He was declared an enemy combatant and put in
military prison in Virginia. Hamdis father filed a habeas corpus claim. He argued that the government had violated Hamdi's Fifth
Amendment right to Due Process by holding him indefinitely and not giving him access to an attorney or a trial. The government
countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy
combatants" and thus restrict their access to the court system.
Issue: May an American citizen who is captured in a war zone and who is labeled an enemy combatant be detained indefinitely in
the US without constitutional protections, such as the right to be heard and the right to counsel.
Holding [OConnor]: No. Vacated and remanded.
The only evidence against Hamdi is the Mobbs Declaration, which just stated that Hamdi was involved with the Taliban.
The US can hold US citizens as enemy combatants,
o Gov. has never provided the full criteria of what is an enemy combatant but it alleges that this individual:
o Was part of or supporting forces hostile to the US or coalition partners in Afghanistan and who engaged in an
armed conflict against the US there.
Unless suspended, habeas corpus is available for every individual in the US.
We reaffirm today the fundamental nature of a citizens right to be free from involuntary confinement by his own
government without due process of law, and we weigh the opposing governmental interests against the curtailment of
liberty that such confinement entails.
Citizen-detainees seeking to challenge classification as an enemy combatant MUST receive notice of the factual basis for his
classification and a fair opportunity to rebut the governments factual allegations before a neutral decision maker.
o We hold that although Congress authorized the detention of combatants in the narrow circumstances here, due
process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to
contest the factual basis for that detention before a neutral decision maker.
Military threat does not outweigh a citizens core right to challenge the governments case before a neutral decision maker
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the
Nations citizens (See Youngstown)


(1) Does the federal govt have the authority to hold an American citizen apprehended in a foreign country
as an enemy combatant?
o In a 5-4 ruling, the Court decided in favor of the govt.
OConnor block: Hamdis detention was authorized under AUMF
This constituted sufficient congressional authorization to meet the requirements of
the Non-Detention Act and to permit detaining an American citizen apprehended in
a foreign country as an enemy combatant.
Thomas agreed, that POTUS has inherent authority, pursuant to Art. II of the Const. to hold
Hamdi as an enemy combatant.
Why? We EXECUTED an American citizen in Quirin so this is not something new or weird.
o (Dissent):
Scalia argues that there is no authority to hold an American citizen in the US as an enemy
combatant without charges or trial UNLESS congress expressly suspends the writ of habeas
o (Souter/Ginsburg)
It violates the Non-Detention Act to hold an American citizen as an enemy combatant.
Souter argues that Congress must expressly authorize such detentions and that it has not
done so.
(2) What, if any, process must be accorded to Hamdi?
o Plurality: Must be accorded Due Process.
Scalia never got to this because he believed there was no authority to detain Hamdi.
o OConnor: Hamdi is entitled to have his habeas corpus petition heard in federal court and that
imprisoning a person is obviously the most basic form of deprivation of liberty.
Thus, Due Process is required and the procedures required are to be determined by applying
the 3-part balancing test under Matthews v. Eldridge.
(1) Importance of the interest to the individual
The risk here is liberty: physical detainment
(2) The ability of addl procedures to reduce the risk of erroneous deprivation
(3) The Govt interests
Natl security (highest) keep this person off the battlefield (lowest)
o These specific procedures were not detailed, but they said that Hamdi must be given a meaningful
factual hearing.
At a minimum, this includes:
(1) notice of the charges
notice of the reasons why he is detained and why he is labeled an enemy
(2) the right to respond
rebut the facts laid against him in front of a neutral decision maker
(3) right to be represented by an attorney
The court suggested, however, that hearsay evidence MIGHT be admissible and the burden
of proof even could be placed on Hamdi [rebuttable presumption of correctness for the
govts evidence]. (***so still different from the general rules of federal court***)
The Ct. remanded the case for the determination of what procedural Due Process
requires when an American citizen apprehended in a foreign country is detained as
an enemy combatant.
Justin Thomas (Dissent) rejected this conclusion and accepted the govts
argument that POTUS could detain enemy combatants w/o any form of Due


Should the burden of proof be on the American citizen to prove that he or she is not an enemy combatant,
or should it be on the government t prove that he or she is an enemy combatant?
Would the Court have reached the same decision in Quirin had it applied the Eldridge test?
Should American citizens be granted more Due Process than non-citizens?
RW #1: Burden of Proof. Suppose the military tribunal trying enemy combatants after the Hamdi decision places the BOP
squarely on the to prove BARD that the designation of enemy combatant was in error. Is this allocation of the BOP
- Questionable. According to OConnor, the constitution would not be offended by a presumption in favor of the
Governments evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal
were provided. (p. 330)
- She then goes on the detail a burden-shifting model that seems appropriate.
(a) Suppose the same tribunal decides that hearsay evidenceregardless of its alleged reliabilityis admissible in any
hearing to determine enemy combatant status. Is the inclusion of hearsay evidence constitutional?
- According to OConnor block, hearsay, for example, may need to be accepted as the most reliable available
evidence from the Govt in such a proceeding.
(b) Suppose the same tribunal decides that the opportunity for refutation approved by SCOTUS in Hamdi meant only
that the petitioner would have 2 hours to argue and/or present evidence that the Govt erred in designating the
petitioner an enemy combatant and that no discovery by the petitioner would be allowed. Permissible?
- So long as they receive (1) notice of the factual basis for the classification as enemy combatant (2) a fair
opportunity to rebut the Govts factual assertions before a neutral decision maker; and (3) legal counsel
- I dont know defer to the Matthews test?

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety
may require it.

When may habeas corpus be denied?

Boumediene v. Bush (p. 339, 2008)
Background: In response to Hamdan, Congress enacted the Military Commission Act which provides that noncitizens held as enemy
combatants shall not have access to federal courts via a writ of habeas corpus or otherwise, except that if there is a military
proceeding, the detainee may seek review of its decision in the US Court of Appeals for the District of Columbia.
In the 5-4 decision, Justice Kennedy (with Stevens, Souter, Ginsburg, and Breyer) held that the preclusion of Art. 1, 9, of the
Constitution allows Congress to suspend habeas corpus in times of rebellion or invasion. The government did not claim that
either of these situations was present.
RA: Question of Context
o Do we want to give terrorists, or alleged terrorists, the rights of habeas corpus?
o Constitution calls it the privilege of habeas corpus.
Two threshold questions:
(1) Does the fact that the petitioners are labeled as enemy combatants affect their ability to seek HC?
(2) Located in Guantanamo Bay effect this? Or more broadly, located abroad, effect this?
Facts: Boumediene was one of several aliens captured at various battlefields over the world, from Afghanistan to Bosnia or Gambia,
who were then held at Guantanamo Bay Naval Station. None of them was a citizen of a nation at war with the U.S.
They were separately examined before a Combatant Status Review Tribunal (CSRT), which are military boards set up in
accordance with the decision in Rasul, 542 U.S. 466 (2004), to decide whether they could be held in lawful custody.
Each was decided by the board to be an enemy combatant, and sought habeas corpus in the District Court for the District of
Petitioners argue that congress has unconstitutionally suspended their right to obtain habeas corpus and did not abide by the
SUSPENSION CLAUSE laid out in the Constitution: ARTICLE 1, SECTION 2.
Argue: No rebellion, no invasion, must give us habeas corpus.

Petitioners: US has effective complete control over Guantanamo Bay, so to say its not under their control, and outside of the
country is not fair or applicable.
Issue: Do these non-citizen detainees have the constitutional privilege of habeas corpus?
Holding [Kennedy]: Yes. Art. I, 9 of the Constitution allows Congress to suspend the writ of habeas corpus only in instances of
rebellion or invasion and there was no claim that such a situation existed.
We hold that Art. I, 9, cl. 2 of the Constitution has full effect at Guantanamo Bay. If the privilege of HC is to be denied to the
detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause.
Moreover, the remedy provided, review in the D.C. Court, did not substitute for HC. Real risk it will lead to an erroneous
detainment. It does NOT replace HC.
Court reluctant to say exactly what they should.
The privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant
to the erroneous application or interpretation of relevant law. And the habeas court must have the power to order the
conditional release of an individual unlawfully detainedthough release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted. (p. 342)
The preclusions of federal courts hearing habeas corpus petitions from detainees was deemed to be an impermissible
suspending of the writ of habeas corpus.
We hold that petitioners may invoke the fundamental procedural protections of Habeas Corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they
are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a
part of that framework, a part of that law.
Kennedy (TEST): 3 factors to determine if enemy combatants can come into US courts and apply for HClook at the facts of the case
specifically and apply them to these factors:
1. Citizenship and status of the detainee and adequacy of the process through which that status determination was made
2. Nature of sites where apprehension and detention took place
3. Practical obstacles inherent in resolving the prisoners entitlement to the writ
See Al Maqaleh v. Gates, where a Bagram prison was not consider akin to Guantanamo Bay because Bagram, Afghanistan
was part a theater of war.
o Bagram was not under total United States control in the same way as GB was, and Bagram was located in the middle of
a sovereign nation.
o But we hold that the 3 factor, that is, the practical obstacles inherent in resolving the prisoners entitlement to the
writ, particularly when considered along with the 2 factor, weights overwhelmingly in favor of the position of the US.
It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.
Dissent [Roberts]: Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded
aliens detained by this country as enemy combatants. The political branches crafter these procedures amidst an ongoing military
conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say
what due process rights the detainees posses, without explain how the statute fails to vindicate those rights, and before a single
petitioner has exhausted the procedures under the law. And to what effect? The majority merely replaces a review system designed
by the peoples representatives with a set of shapeless procedures to be defined by federal courts at some future date.
RA: Essentially, the fact that detainees get review by the D.C. Cir. Is sufficient protectionactually, this was generous as it is. Its
Dissent [Scalia]: The judiciary has no business being involved in the matter at all.
What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None
whatever. But the Court blunders in nonetheless. Henceforth, as todays opinion makes unnervingly clear, how to handle enemy
prisoners in this war will ultimately lie with the branch that knows the least about the national security concerns that the
subject entails.
o The majoritys opinion will almost certain cause more American to be killed as dangerous individuals would be released
and commit terrorist acts
o And . . . will make the war harder on us. (p. 344)
Seems like hes almost saying this is a Political Question.
o The court has no role here, and the court should stay out of it.
The majority and the dissents articulated vastly different views about the role of the federal courts during the war on terrorism.
o For the majority, the Constitution and access to the federal courts to enforce it are essential even in times of
From this perspective, the decision was a profound reaffirmation of the rule of the law.
o For the Dissents, the decision was dangerous judicial meddling in a realm properly left to president and Congress.
Justice Scalia said that he believed that the people would needlessly die because of the majoritys opinion.
The issue is profoundly important in terms of the appropriate role of the Constitution, the judiciary, and the rule of law in the war
on terrorism

RA: Most Americans disagree with the decision.

Very popular subject of discussion in talk-shows.
RW #3 (347)
I think a big difference here is that Guantanamo Bay, albeit Cuba has ultimate sovereignty the US has the same plenary control it
had enjoyed since 1898 of Guantanamo Bay even after Spain ceded control over it.
Kennedy essentially attacks this idea that the Constitution has no effect at GB as garbage because its a mere technicality.
Here, Im not so sure a detention center located in Iraq is the same. In some ways, they are more like POW in a combat
zone. Which makes is much more difficult to extend the majoritys argument for HC here.
As Kennedy pointed out: The detainees, moreover, are held in a territory that, while technically not part of the US, is under
the complete and total control of our Government. (p. 341)
In fact, in this situation, Scalias point of endangering American citizens and making the war more difficult seems more
As for whether it would make a difference if the Yemeni national was a minor, age 15, I dont know.
One the one hand, a 15 year old seems less dangerous, more likely to be coerced into being part of a war, has a better
chance to changeif rehabilitation is a goal of ours, but the other factors remain constant.
RW #4:
Battle of educating the world versus leaving them in the dark and hoping to pounce on their lack of education.
True, educating them more could give them a better skillset to fight back, but couldnt it also lead to a grander worldwide
viewone that ultimately could help assist those in their own bubbles see that maybe war and extremist activity is NOT the only
way solve their problems?
Whats better? The risk of educating your enemy, or the possible benefit of showing them the light that war and death are
not the best means to achieving their goalswhatever they are?

Should non-citizens have the power to claim rights in the United States Constitution?


What protections does the writ of habeas corpus provide to detainees?

A historic victory for Executive accountability.

Without this decision these men might have remained in detentionforever without ever having a real chance to argue for
their releasebefore an impartial court.
Many detainees arebeing held in solitary confinement, including dozens who are clearedfor release; most are losing their
minds as a result.
In habeas proceedings, petitioners should be able to argue for more humane conditions ofconfinement.
Many detainees are also cleared for release to countrieswhere they may face torture; these men are basically in the
position ofrefugees and countries that can offer them asylum will have to be foundbefore they can be released.
A significant issue for the habeas caseswill also is challenges to the governments reliance upon informationobtained
through torture or unlawful coercion to justify the detentions.
Major General Jay Hood, former commander at Guantnamo,admitted to the Wall Street Journal that [s]ometimes we
just didn't getthe right folks, but innocents remain at the base because [n]obodywants to be the one to sign the release
papers. ... there's no muscle inthe system. Historically, the federal courts have been that muscle. Thisdecision ensures
that they will be.

Do you agree with Justice Kennedy, Justice Scalia, Chief Justice Roberts, or would you take a different
approach to resolve this case?

I think he nails it right on the head when he said, But the cases before us lack any precise historical parallel. They involve
individuals detained by Executive Order for the duration of a conflict that, if measured from September 11, 2001, to the
present, is already among the longest wars in American history. (p. 341)



He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators
present concur . . .
What is the constitutional status of executive agreements?
Dames & Moore v. Regan (p. 352, 1981)
Facts: President Carter negotiated an agreement with Iran whereby that country would free American hostages being held in Tehran
in exchange for (i) nullified attachments and liens on Iranian assets un US; (ii) directed these assets to be transferred to Iran; (iii)
suspended claims against Iran that could be presented to an International Claims Tribunal.
The Executive Agreement was challenged by Dames & Moore who had filed a lawsuit against Iran for breach of contract.
Issue: Americans were taken hostage in the US Embassy. They were eventually liberated after the president enterer into a number of
Executive Agreements with Iran. May POTUS enter into Executive Agreements?
Holding [Rehnquist]: Yes. Upheld the Constitutionality of the Executive Agreement.
Court emphasized that a series of Federal Statutes authorized POTUS actions.
Because transfer of assets was taken pursuant to specific congressional authorization, the strongest presumption and the
widest latitude of judicial interpretation support it. See Youngstown (Jackson Concurrance)
o Rhenquist: Because the Presidents action in nullifying the attachments and ordering the transfer of the assets
was taken pursuant to specific congressional authorizations, it is supported by the strongest of presumptions and
the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who
might attack it.
o A systematic, unbroken, executive practice, long pursued to the knowledge of the Congress, and never before
questioned may be treated as a gloss on Executive power vested in the President by Article II 1. Rhenquist,
quoting Frankfurther in Youngstown.
Burden of persuasion rests heavily upon the person attacking the agreement.
Congress implicitly approved of the practice of claim settlement
o International Claims Settlement Act of 1949 has been repeatedly amended, evidencing Congress approval
o Learned Hand: The constitutional power of the President extends to the settlement of mutual claims between a
foreign government and the United States, at lease when it is an incident to the recognition of that government; it
would be unreasonable to circumscribe it to such controversies.
The Executive Order did not divest courts of jurisdiction, it just suspended the claims temporarily

Leaves open whether POTUS has exclusive inherent authority to execute Executive Agreements or whether POTUS
can only execute Executive Agreements when authorized federal statutes.
NOTE: Appears that a federal statute WOULD prevail if it were in conflict with an Executive Agreement. (see US v.
Guy W. Capps: invalidated an Executive Agreement between the US and Canada because of its conflict with a federal
Chem Gem: So long as the president is not violating another constitutional provision or a federal statute (or treaty),
there seems little basis for challenging the constitutionality of an executive agreement.
What about the Treaty Clause?
o RA: Something has happened to the treaty clause and the Constitution
o Congressional Acquiescence: Congress allowed some of its power in foreign affairs to be taken by the
Precedent created the first time POTUS created an Executive Agreement and Congress didnt do
anything about it.
o Executive Agreements are not binding on future Presidents they can be overruled at anytime
o Also, Congress could pass a law invalidating the agreement if they wanted.
Compare to: Chahada v. INS and Clinton v. New York, where the Court ruled the shift in the balance of power
Why the difference?
o Domestic v. international affairs?
o Congress/SCOTUS less likely to get in POTUS way in foreign affairs.

Why do you think the Supreme Court held executive agreements constitutional?
Should executive agreements be unconstitutional?

1. The Napolitano Memo.



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.
Why do we separate powers in the first place?
10th Amendment is not a truism, but a core, essential value of the Constitution.
Why have a checks and balance?
o To slow the process of change.
o Legislative change should be slow and deliberate, not based on the changing whims of the demos
The principle interest is to make liberty possible. It achieves liberty in a bunch of different ways
Prevents the concentration of power in one person/institution.
Prevent the tyrannical abuse of the accrual of power.
The simple act of providing power does not foster liberty
o 2 Pre Requisites to Liberty
1. The difference sites of authority have to be mutually respectful and equal.
2. Stand independent and apart from the others.
SCOTUS has interpreted the separation of powers in very similar way to above, 3 keys:
o (1) Respect the institutions prerogative of each branch
o (2) Branch independence
o (3) The personal liberty that flows from the SoP
SoP: National/State powers (Vertical)
SoP: Executive/Congress (Horizontal)

What is the purpose of the 10th Amendment?

New York v. United States (p. 393, 1992)
Facts: The Low-Level Radioactive Waste Management Act Amendments of 1985 required states alone or in compacts with other
states to dispose of such radioactive waste within their borders. There were 3 incentives: (i) monetary, (ii) cost of access to
disposal sites, and (iii) the take title provision. Take Title Provision: if the State cannot make arrangements to dispose to the waste
by a certain date, the state will take title (ownership) of the waste and as a result of the states failure to take possession of the
waste. NY sued claiming the Act was inconsistent with the 10 Amendment and the Guarantee Clause.
Issue: May Congress compel states to take ownership of the waste?
Holding [OConnor]: Hell Fucking No
Congress can use incentives to influence a states policy choices. See South Dakota v. Dole
o BUT with these incentives, it is ultimately the states decisions whether to comply
Accountability: Here, the federal government directs the states to regulate, but it is state officials who will bear the brunt
of public disapproval.
First and Second incentives are okay, the Third is coercion.
The Constitution does not allow for Congress to mandate state regulation.
States are not mere political subdivisions of the United States. State governments are neither regional offices nor
administrative agencies of the Federal Government The Constitution instead leaves to the states a residuary and
inviolable sovereignty, reserved explicitly to the states by the 10 Amendment.
Dissent/Concurrence (Stevens): IDK what this crazy lady is talking about. The Federal Govt directs the states in many realms:
e.g. Govt regulates state operated railroads, schools, prisons, state elections, etc
During war, Congress could command states to supply troop quotas.



NY Lawyer: The difference is that Congress is REQUIRING them to take part in an activity. (RA agrees).
o 1. NY doesnt argue that this violates the Commerce Clause
o 2. NY doesnt argue that Congress cannot pass a law that supersedes their lawpreemption.
o 3. What is the problem: The law is FORCING the state to do something. By forcing that state (NY) to
do something, it violates the 10th Amendment.
Its either forcing them to do something they do not want to do, or to do something in a way
they do not want (p. 396).
Blurs the lines of accountability!
o Sep. of Powers should allows us to hold accountable, state officials/governmental officials.
P. 397 But where the Federal Government directs the States to regulate, it may be state
officials who will bear the brunt of public disapproval, while the federal officials who devised
the regulatory program may remain insulated from the electoral ramifications of their
decision. Accountability is thus diminished when, due to federal coercion, elected state
officials cannot regulate in accordance with the views of the local electorate in matters not
pre-empted by federal regulation.
Take Title is COERCION.
The Court rules that Congress cannot give states this choice, because it amounts in a indirect way, the
government regulating the states.
o To allow Congress to commandeer the states in this way, would violate the 10th Amendment. The
states are separate, sovereign power powers with their own constitution.
Why did we read this case?
o Discusses the extent to which Congress can commandeer a state to act, to direct, motivate, and
compel the states to deal with radioactive waste in their own way.
o If Congress can do this, the 10th amendment means NOTHING and the separation of powers is mere
o **States are laboratories of Democracy.**
Would they do the best thing, and take the best approach and then we could see the best?
Or is it a race to the bottom?
Do we really want up to 50 different ways of disposing waste?
NOTE: This is during the era when SCOTUS was shrinking federal power and reasserting the 10th

Why does the Constitution prevent commandeering?

Shift away from the broad CC powers how do we connect?

This fits into that whole shift from BROAD federal power to rise of the 10th Amendment and state
This is an era in which SCOTUS is giving more powers to the states and protecting the states from congressional
The court is RENTRENCHING on the powers of Congress consistent with federalism, dual sovereignty, the
separation of powers.
Congress power is being curtailed.

How would you have resolved this case?

After New York v. United States, on what authority if any may Congress impose requirements on states?
Who/what does the 10th Amendment protect?
Printz v. United States (p. 402, 1997)
Facts: In reaction to the Reagan assassination attempt, Congress passed the Brady Bill to regulate guns. This law required that the

Attorney General create a national background check system within 5 years. In the meantime, the law required local Chief Law
Enforcement Officers (CLEOs) to be given a Brady Form from gun merchants when someone tried to buy a gun. The CLEOs were then
required to "make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the
law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the
Attorney General." Two CLEOs sued, claiming this provision was unconstitutional.
Issue: Does the 10 Amendment prevent Congress from conscripting CLEOs into federal service (via the N&PC)?
Holding [Scalia]: Yes
Question 1: Can the federal govt compel a state official to implement a federal regulatory scheme? NO
o 1) The 10 Amendment Argument: The 10 Amendment doesnt allow it.
Dual Sovereignty: The states retain a residuary and inviolable sovereignty
o 2) Prudential Argument: The power of the Federal would be increased way beyond belief if it could compel State
Officers to do their bidding. Were worried, historically weve been worried, and we are today, about a large
Federal Governmentbecause it undermines the intention of the Constitution
o SCOTUS rejects the distinction between policymaking (e.g. New York) and mere implementation
Just as the separation of the branches in the federal government serve to prevent the accumulation of excessive power
in any one branch, a healthy balance of power between the States and the Federal Govt will reduce the risk of tyranny and
abuse from either front.
The Federal Govt may neither issue directives requiring the States to address particular problems, nor command the
States officers, or those of their political subdivisions (towns, counties), to administer or enforce a federal regulatory
Question 2: Accountability
o Brady Bill inserts a local official between a citizen and their gun, a buyer and a seller
o CLEOs will receive the brunt of public anger over the policy
o Further, CLEOs will have to bear the cost of enforcement.
o If the Federal Govt wants to regulate, they should take responsibility for the public reaction
Even if it is a good idea, it doesnt matter if it is unconstitutional.
Conc (OConnor): Not overruled, CLEOs can still VOLUNTARILY participate in the act.
Conc (Thomas): Brady violates the 10 Amendment because it compels CLEOs to enforce a federal regulatory scheme
Dissent (Stevens): Brady is authorized by the N&PC
The 10 Amendment imposes no restriction on the exercise of delegated powers
The Framers intended to preserve state sovereignty, but they didnt speak to the question of whether individual state
employees may be required to perform federal obligations.
These are only modest and temporary duties imposed on CLEOs
RA: HATES this dissent
o Lets just trust Congress How about NO.

Is the Brady Act an effort to circumvent the Courts holding in New York vs. U.S.?
(p. 407)
How would you have ruled in Printz?
Does the Court give too much weight to the 10th Amendment in this case?
Is there anything that Congress can do to make this law Constitutional?
- Use the SPENDING POWER to add a financial incentive

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall
be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound
thereby, anything in the Constitution or law of any State to the contrary notwithstanding.


The Congress shall have power . . . [t]o establish a uniform rule of naturalization . . .
Occurs when the federal government has exercised power to regulate something and there is a conflict, or
potential conflict, between the federal law and the state law.
o Weve already read one! Gibbons v. Ogden! (commerce clause)
Here, validating one license invalidated another they had to make a choice. The court ruled
that the Federal Government wins.
The Rule: The state license, given to Ogden, is invalid under the Supremacy Clause to extent
that it conflicts with a Federal Stature.
2 Types of Preemption:
o (1). Express
When Congress says expressly that it is preempting State law over which congress has authority
to act.
o (2). Implied
Thats when Congress DOES NOT say expressly that it is preempting. Must look to congressional
intent, did it intend to preempt?
(a). Field Preemption: Federal law occupies the field, federal law is intending to be
comprehensive (like immigration).
(b). Conflicts Preemption: Conflict between fed/state the state law is preempted. If
there are mutually exclusive, you cannot have both, federal law controls.
o Sometimes referred to an impossibility.
(c). Purpose Preemption: A state law can be preempted if it impedes the
purpose/objective of a federal law. (same as conflict preemption)
Key analytical question: Congressional intent. Does Congress intend to preempt state law here?

How does preemption fit into the structure of the Constitution?

Arizona v. United States (p. 496, 2012)

Facts: Arizona passed a law with the purpose of deterring the unlawful entry and presence of illegal aliens in the United States.
Purpose: to discourage and deter the unlawful entry and presence of aliens and economic activity y person unlawfully present
in the US. The law established an official state policy of attrition through enforcement
o On April 23, 2010, AZ State Legislature passed S.B. 1070; Gov. Jan Brewer signed the bill into law.
o 3 makes failure to comply w/federal alien-registration requirements a misdemeanor.
o 5 makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State.
Two provisions give specific arrest authority and investigative duties with respect to certain aliens to state and
local law enforcement officers.
o 6 authorizes officers to arrest without warrant a person the officer has probably cause to believe has committed any
public offense that makes the person removable from the US.
2(b) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts
to verify the persons immigration status with the Federal Government.
o On July 6, 2010, the US sought to stop the enforcement of S.B. 1070 in federal district court before the law could take
The DC did not enjoin the entire act, but it did enjoin four provisions. The court enjoined provisions that:
(1) created a state-law crime for being unlawfully present in the United States,
(2) created a state-law crime for working or seeking work while not authorized to do so,
(3) required state and local officers to verify the citizenship or alien status of anyone who was
lawfully arrested or detained, and
(4) authorized warrantless arrests of aliens believed to be removable from the United States.
o AZ appealed DCs decision to the 9 Cir. The AC affirmed the DCs decision, holding that the US had shown that federal
law likely preempted:
(a) the creation of a state-crime for violation of federal registration laws,
(b) the creation of a state-crime for work by unauthorized aliens,

(c) the requirement to verify citizenship of all detained persons, and

(d) the authorization for police officers to effect warrantless arrests based on probable cause of removability
from the United States.
o Arizona appealed the court's decision.
Issue: Does federal law and federal regulation in immigration preempt this state law?
Holding [Kennedy]: Yes for 3 of the provisions.
Preempted Provisions
o (1) Section 3: created a state-law crime for being unlawfully present in the United States

If 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute
federal registration violations, diminish[ing] the [Federal Government]s control over enforcement and
detract[ing] from the integrated scheme of regulation created by Congress.
o (2) Section 5(c): created a state-law crime for working or seeking work while not authorized to do so
Creates a new crime where there is no federal crime.
Leg. History: Congress made a deliberate choice to NOT place a penalty and AZ is choosing to impose a
sanction where Congress decided to NOT impose a sanction. Contrary to Congressional Intent.
o (4) Section 6: authorized warrantless arrests of aliens believed to be removable from the United States
This would allow a state to achieve its own immigration policy
This section violates the principle that the removal process is entrusted to the discretion of the federal
government. A decision on removability requires a determination whether it is appropriate to allow a foreign
national to continue living in the United States. Decisions of this nature touch on foreign relations and must be
made with one voice
One section Not Preempted:
o (3) Section 2(b): required state and local officers to make reasonable efforts verify the citizenship or alien status of
anyone who was lawfully arrested or detained if they reasonable believe that the person is unlawfully in the US.
State and local police already communicate with ICE
ICE is already required to respond to police requests when they are detaining someone
Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations,
however. Indeed, it has encouraged the sharing of information about possible immigration violations. A
federal statute regulating the public benefits provided to qualified aliens in fact instructs that no State or
local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE]
information regarding the immigration status, lawful or unlawful, of an alien in the United States. The federal
scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter.
The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter
BUT SCOTUS is letting it stand for now, reserves the right to preempt it at a later date. (not yet
The National Government has significant power to regulate immigration.
Arizona may have understandable frustrations with the problems caused by illegal immigration, but the State may not pursue
policies that undermine federal law.
Dissent [Thomas]: Supports ONLY express preemption. Finds implied preemption problematic.
Dissent [Alito]: Give the law a chance to be implemented, before any parts are preempted. Basically, show me first, and then
well decide. Maybe AZ will find a way to NOT step on the Federal Governments toes.

How was Gibbons v. Ogden a case about preemption?

Should states with high illegal immigrant populations be able to regulate these populations?
How would you have ruled in this case?
Do you this case as more of a matter of federalism or Constitutional Rights?