Beruflich Dokumente
Kultur Dokumente
1. Textual
2. Structural
3. Originalist
4. Precedential
5. Historical Practice
6. Prudential
1
JUDICIAL POWER LIMITATIONS
Justiciability Constitutional Limits on Judicial Review:
Constitutional 11th Amendment
Standing o No judicial power to suits against states or its agencies by citizens of
o Lujan another state or country or by its own citizens
o Mass v. EXCEPTIONS: state waiver of sovereign immunity, violation
EPA of 14th Amendment, unconstitutional acts of state officials
Prudential Case or Controversy
Standing o Case must be in adversary form capable of judicial resolution
Mootness No Advisory Opinions by Art. III fed. Ct.
Ripeness
Political Justiciability
Question
o Baker v. Constitutional Standing:
Carr 1. Injury in Fact
a. Personally suffered or will suffer
b. Invasion of legally protected interest
c. Concrete, particularized, actual, imminent (Lujan)
2. Causation
a. Fairly traceable the defendants act (Mass v. EPA)
3. Redressability
a. There is a Remedy at law Requested remedy must be allowed
(Lujan)
Mootness
Live controversy no longer exists Decision would have no practical effect
in achieving desired result
o EXCEPTION:
Capable of repetition, yet evading review
Ripeness
Cases not ready for decision premature adjudication
o EXCEPTION: declaratory judgment; injunctive relief
2
LEGISLATIVE POWER
SOURCES & SCOPE OF POWER
1. Express Powers:
a. Art. I, 8 Expressly grants specific powers
to Congress
2. Implied Powers:
a. Art. I, 8 Necessary & Proper Clause
i. Congress can pass laws to achieve its
express powers
3. Inherent Powers:
a. Congress has NO inherent domestic
legislative powers (but there are inherent
foreign affairs powers)
4. Delegation of Powers:
a. Congress can delegate legislative authority so
long as it gives standards to guide use of
powers
th
5. 10 Amendment:
a. Powers not delegated are reserved to the
states
6. The Supremacy Clause:
a. Art. IV, Cl. 2
i. Constitutional national laws override
state laws when there is a
controversy
3
LEGISLATIVE POWER
Federalism
o Sovereignty
McCulloch v. Maryland
U.S. Term Limits v. Thornton
o Limits of Necessary & Proper Clause
Comstock
Standard: statute must be rationally
related to the implementation of a
constitutionally enumerated power
Commerce Clause
o Pre-New Deal
Gibbons v. Ogden
Hammer v. Dagenhart (Child Labor Case)
o New Deal
Schechter Poultry
Knight
Carter
o After New Deal
NLRB v. Jones
Darby
Wickard
Heart of Atlanta
Katzenbach
Garcia
o Contemporary Commerce Power
Lopez
Morrison
Gonzales v. Raich
NFIB v. Sebelius
o 10 Am. Limitation
th
NY v. US
Printz
State Sovereign Immunity & 11th Amendment
Taxing Power
o Bailey v. Drexel Furniture (Child Labor Tax Case)
o NFIB v. Sebelius
Spending Power
o Butler
o Dole
o NFIB v. Sebelius
Dormant Commerce Clause
o Philadelphia v. New Jersey
o Dean Milk
o Solid Waste Management
Privileges & Immunities Clause
4
LEGISLATIVE POWER COMMERCE POWER
Congress Can Regulate:
Ways to Interpret the Commerce Clause: 1. Channels (If subject of traffic, then subject of
1. Textual commerce The Lottery Case)
a. Art. I, 8, Cl. 3 2. Instrumentalities (Interstate carriers as instruments of
b. Art. VI Supremacy Clause interstate commerce The Shreveport Rate Case)
2. Structural 3. Local Activities in Stream of Commerce
3. Originalist 4. Interstate Commerce
4. Precedential 5. Intrastate Activity
5. Historical Practice a. Substantial Effect (Gonzales v. Raich)
6. Prudential i. Even if not commercial and is purely
a. Substantial Effects Test intrastate activity
b. Economic v. non-economic
c. Direct v. Indirect Congress CANNOT Regulate:
d. Jurisdictional Nexus Economic Inactivity (NFIB v. Sebelius)
e. Stream of Commerce Test
f. Congressional Findings Doctrines Supporting Local Regulation:
g. Activity v. Inactivity Substantial Effects
h. National Police Regulation o Congress can regulate local activity if rationally
i. Congressional Findings that activity has a substantial effect on
j. Comprehensive interstate commerce
Congressional Scheme o Deference given to Congressional judgment
Look at aggregate impact of all
regulated activity
Justice Marshall on Scope of Commerce National Police Regulation
Power: o Congress may regulate activity that pollutes
Commerce, undoubtedly, is traffic, commerce (Champion v. Ames)
but it is something more: it is
intercourse reaching into the Contemporary Limits to Permissibility of Local Regulation:
interior of each state, allowing 1. Jurisdictional Nexus
Congress to regulate intrastate o Statute must expressly refer to interstate
activities that affect the States movement/a jurisdictional element
generally (Gibbons v. Ogden) 2. Congressional Fact Finding
Rests on Pre-Emption Grounds o Not sufficient on its own
o Supremacy Clause of Art. IV 3. Causal Relation btwn Regulated Act is Remote or
Attenuated
4. Regulation intrudes on areas of state concern
5
LEGISLATIVE POWER
JUDICIAL LIMITS ON COMMERCE POWER
1. Direct vs. Indirect Effects Test
a. Does activity have a direct or indirect effect on
interstate commerce?
i. Manufacturing = indirect/incidental effect on
commerce NOT regulated (Sugar Trust
Case/Knight)
2. Substantial Economic Effects Test
a. Is there a close and substantial relation to interstate
commerce that the control is essential and appropriate
to security, efficiency, and maintenance? (The
Shreveport Rate Case/Texas Railway)
3. Stream of Commerce Test
a. Is activity within the stream of Commerce/in
interstate commerce? (Swift v. US)
4. National Police Regulation
a. Commerce power can be used to halt objectionable
commodities or transactions Responsible for the
safe, free, uninterrupted flow of commerce between
states (The Lottery Case/Champion v. Ames)
5. Congressional Findings
a. Not required, but absence of congressional findings
would be unhelpful to governments defense (U.S. v.
Lopez)
6. Jurisdictional Nexus
a. Does statute expressly refer to/require proof of
interstate movement? (U.S. v. Lopez)
7. Traditional State Autonomy
a. Is exercise of commerce power infringing upon areas
where states traditionally have been sovereign? (Lopez)
8. Economic vs. Non-Economic Activity
a. Is the activity Economic or Non-Economic? (Lopez,
Morrison, Raich)
i. Activities as a whole are quintessentially
economic (Raich)
9. Comprehensive Congressional Scheme
a. Is it part of a comprehensive legislation or single subject
legislation? (Raich)
10. Activity v. Inactivity
a. Congress CANNOT regulate inactivity (Sebelius)
6
LEGISLATIVE POWER DORMANT COMMERCE CLAUSE
Ways to Interpret the Dormant Clause: Dormant Commerce Clause
1. Textual Limits state power to enact regulations affecting
a. No explicit divestment of interstate commerce
state power to regulate RULES:
interstate commerce a. States CANNOT discriminate against interstate
b. Art. I, 8, Cl. 3 Court has commerce (unless no alternative for serving
read into the commerce legitimate local purpose)
clause judicially i. Discrimination = favoring in-state
enforceable limits on state interests against out-of-state interests
legislation when Congress ii. Protectionism = violation of Dormant
has not acted Commerce Clause (Philadelphia v. New
c. Art. I, 8 interpreted to Jersey)
mean states cant pass laws iii. Not discrimination if:
regulating interstate 1. Law benefits public entities over
commerce especially when private entities, yet treats all
protectionist private companies the same
d. Art. IV, 2 Privileges & b. States CANNOT place unreasonable burdens on
Immunities Clause bars interstate commerce
state legislation that i. Balancing Test Weigh local interests in
discriminates against out- keeping law (i.e., environment, trade,
of-state economic interests etc.) against burden on interstate
2. Structural commerce
3. Originalist 1. State highway laws are usually
a. Framers centralized power valid unless theres unreasonable
to regulate commerce in burden on interstate commerce
Congress b/c destructive POLICY REASONS:
trade war among states o Avoid trade barriers
was a problem (threat to o Lack of protection for out-of-state interests
the Union)
b. Alexander Hamilton CATEGORIES OF THE DORMANT COMMERCE CLAUSE
unneighborly regulations of 1. Facially Discriminate against out-of-state commerce
some states if not a. INVALID (Only Exception = Quarantine law)
restrained will extend till b. State has heavy burden of showing discrimination
they become serious is legitimate for non-protectionist reasons
source of discord to (Philadelphia v. New Jersey)
intercourse btwn different 2. Facially Neutral, but all burden falls on out-of-state
parts of the Confederacy business (impermissibly protectionist effect)
c. Johnson vs. Marshall a. USUALLY INVALID
4. Precedential b. State must (1) justify local benefits of statute and
a. Cooley v. Board of (2) unavailability of non-discriminatory
Wardens: recognized alternative (Hunt v. Washington State Apple)
concurrent power to 3. Facially Neutral, but disproportionate adverse effect on
regulate commerce and interstate commerce
Congressional silence does a. BALANCING TEST Statute invalid ONLY IF total
not mean no limits on state interstate flow is substantially affected and
regulatory power burden on interstate commerce clearly outweighs
5. Historical Practice legitimate non-protectionist local benefits?
6. Prudential (Burden on challenger of statute)
7
LEGISLATIVE POWER TAXING POWER
Ways to Interpret the Taxing Power: Art. I, 8, Cl.1 Congress shall have power to law and collect
1. Textual taxesand excises, to pay debts and provide for the common
a. Art. I, 8, Cl. 1 defense and general welfare of the US
Congress has the power to
law and collect taxes, Art. I, 2, Cl.3 direct taxes shall be apportioned among the
duties, imposts, and several states
excises
2. Structural Rules of Taxing Power:
3. Originalist 1. Taxing power is NOT a regulatory power, but power is
4. Precedential plenary Can be exercised for any public purpose
5. Historical Practice a. No compelling governmental interest required
6. Prudential 2. Reasonable relationship to revenue production
a. Tax vs. Penalty (Child a. Tax acceptable it is facially a revenue producing
Labor Tax Case) measure (Sebelius)
b. Revenue Producing vs. 3. Penalty cannot be imposed in guise of taxes
Mere Regulation a. PENALTY:
i. Large monetary amount exacted
ii. Scienter requirement
iii. Payments are made to source other than
IRS
4. Disclosure requirements will not make a tax into a penalty
5. Amount of direct tax within a state must be in proportion
to population within the state (Art. I, 2, Cl.3)
8
LEGISLATIVE POWER SPENDING POWER
Ways to Interpret the Taxing Power: Art. I, 8, Cl.1 Congress shall have power to law and
1. Textual collect taxesand excises, to pay debts and provide for the
a. Art. I, 8, Cl. 1 Congress has the common defense and general welfare of the US
power topay debts and provide
for common defense and general Rules of Spending Power:
welfare of the United States 1. Regulating through conditional federal funding is
2. Structural permissible
3. Originalist 2. Spending Power NOT limited to what is stated in
a. Madisonian Power limited to Art. I, 8 (Hamiltonian View)
those enumerated in Art. I, 8 a. Dont have to spend in pursuit of other
b. Hamiltonian Clause provides for enumerated powers (U.S. v. Butler)
broader power; Power only limited b. Congress determines scope of general
by need to provide for general welfare
welfare 3. Reasonable Conditions Congress may impose
i. View adopted by the reasonable conditions for participation in federal
Courts spending program even if it induces states to
4. Precedential conform to federal standards (Sebelius)
5. Historical Practice 4. Unambiguous Conditions Conditions must be
6. Prudential explicitly stated (clear and unambiguous) so states
a. Dole Test modern can make informed choices (Sebelius)
interpretation of spending clause 5. Not Coercive/States May Reject 10th
Amendment is not a likely barrier to Congressional
Spending as long as states may reject federal grant
and its conditions
a. Butler Congress cannot...purchase
compliance
9
LEGISLATIVE POWER
External Constraints on Commerce Power
10th Amendment The power 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
Rules:
1. Commandeering of State Governments of
state officials = impermissible
a. Commandeer = directly compel state
to enact and enforce a federal
regulatory program
b. (New York v. US, Printz v. US)
2.
10
EXECUTIVE POWER
Exec. Assertion of Power
o Executive Power
Youngstown (Steel Seizure Case)
o National Domestic Policy
Zivotofsky v. Kerry
o Foreign & Military Affairs
Dames & Moore v. Regan
Exec Discretion During War & Terrorism
o Detention & Trial of Enemy Combatants
Ex parte Quirin
Hamdi
Hamdan
Boumediene v. Bush
Congressional Authority to Restrain & Enable the
Executive
o Congressional Control over Exec. Action
INS v. Chadha
o Bicameralism & Presentment
Clinton v. NY
o Congressional Constraints on Appointment
& Removal of Exec. Officers
Bowsher v. Synar
Morrison v. Olsen
War & Treaty Power
o Woods v. Cloyd W. Miller
o Missouri v. Holland
Executive Privilege, Immunities, & Impeachment
o U.S. v. Nixon
o Clinton v. Jones
11
EXECUTIVE POWER EXECUTIVE ASSERTION OF POWER
Ways to Interpret the Constitution:
1. Textual TRIPARTITE ANALYSIS FOR WEIGHING EXECUTIVE
a. Art. II vests executive power in the POWER
President WITHOUT QUALIFICATION (Youngstown Justice Jackson)
i. Implied president has certain 1. President Acts pursuant to expressed or
inherent powers beyond those implied Congressional consent/authorization
specified in Constitution a. Presidents authority at its highest
2. Structural i. Includes all Presidents rights
3. Originalist PLUS with Congress can
a. Framers separation of Governmental delegate to him
powers prevent concentration of 2. President Acts in Absence of Congressional
power, maintain checks and balances, grant or denial (Congress is silent on approval)
decentralize to ensure liberty a. Zone of Twilight Uncertainty about
4. Precedential who has power (President and
5. Historical Practice Congress may have concurrent
a. Look to when in category 2 (zone of authority) Look to historical
twilight) practice Has there been consistent
6. Prudential performance by executive with
a. Youngstown Functionalist Approach congressional acceptance?
(Tripartite Analysis of Justice Jackson) b. President relies on his own
b. The Court, in declaring power of each independent powers Only the
branch, asserts its own power as the Powers Granted to him in Art. II
arbiter of these matters 3. President Acts in Conflict with express or
implied will of Congress
a. Presidents power at its weakest
b. Can only rely on presidential power
minus Congress
12
IF NATIONAL DOMESTIC POLICY Youngstown Jackson Analysis
If Congress is silent, could be yes or could be no (not sure zone of twilight case by case analysis)
o HOLDING = no to executive act
FUNDAMENTAL RIGHTS
Individual Rights Before Civil War
o Barron v. Mayor & City Council of
Baltimore
o Dred Scott v. Sanford
Post-Civil War Amendments
o Slaughter-House Cases
Incorporation of Bill of Rights
o Duncan v. Louisiana
o McDonald v. City of Chicago
DUE PROCESS
Substantive Due Process
o Lochner v. NY
o Nebbia v. NY
o Williamson v. Lee Optical
13