Bloch Con law case outline

I. The role of the Supreme Court

The Basic Framework

Marbury v. Madison
Facts of the Case:
The case began on March 2, 1801, when an obscure Federalist, William Marbury, was
designated as a justice of the peace in the District of Columbia. Marbury and several
others were appointed to government posts created by Congress in the last days of
John Adams's presidency, but these last-minute appointments were never fully
finalized. The disgruntled appointees invoked an act of Congress and sued for their
jobs in the Supreme Court.
Question:
Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is
the Supreme Court the place for Marbury to get the relief he requests?
Conclusion:
Yes; yes; and it depends. The justices held, through Marshall's forceful argument,
that on the last issue the Constitution was "the fundamental and paramount law of
the nation" and that "an act of the legislature repugnant to the constitution is void."
In other words, when the Constitution--the nation's highest law--conflicts with an act
of the legislature, that act is invalid. This case establishes the Supreme Court's power
of judicial review.

Martin v. Hunter’s Lessee

Facts of the Case:
Lord Fairfax held land in Virginia. He was a Loyalist and fled to England during the
Revolution. He died in 1781 and left the land to his nephew, Denny Martin, who was a
British subject. The following year, the Virginia legislature voided the original land
grant and transferred the land back to Virginia. Virginia granted a portion of this land
to David Hunter. The Jay Treaty seemed to make clear that Lord Fairfax was entitled
to the property. The Supreme Court declared that Fairfax was so entitled, but the
Virginia courts, where the suit arose, refused to follow the Supreme Court's decision.
Question:
Does the appellate power of the Supreme Court extend to the Virginia courts?
Conclusion:
The Court rejected the claim that Virginia and the national government were equal
sovereigns. Reasoning from the Constitution, Justice Story affirmed the Court's power
to override state courts to secure a uniform system of law and to fulfill the mandate
of the Supremacy Clause.

Cooper v. Aaron
Facts of the Case:
The Governor and the Legislature of Arkansas openly resisted the Supreme Court's
decision in Brown v. Board of Education. They refused to obey court orders designed
to implement school desegregation. Local officials delayed plans to do away with
segregated public facilities.
Question:
Were Arkansas officials bound by federal court orders mandating desegregation?
Conclusion:
In a signed, unanimous per curiam opinion, the Court held that the Arkansas officials
were bound by federal court orders that rested on the Supreme Court's decision in

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Brown v. Board of Education. The Court noted that its interpretation of the Fourteenth
Amendment in Brown was the supreme law of the land and that it had a "binding
effect" on the states. The Court reaffirmed its commitment to desegregation and
reiterated that legislatures are not at liberty to annul judgments of the Court.

Cohens v. Virginia
Facts of the Case:
An act of Congress authorized the operation of a lottery in the District of Columbia.
The Cohen brothers proceeded to sell D.C. lottery tickets in the state of Virginia,
violating state law. State authorities tried and convicted the Cohens, and then
declared themselves to be the final arbiters of disputes between the states and the
national government.
Question:
Did the Supreme Court have the power under the Constitution to review the Virginia
Supreme Court's ruling?
Conclusion:
In a unanimous decision, the Court held that the Supreme Court had jurisdiction to
review state criminal proceedings. Chief Justice Marshall wrote that the Court was
bound to hear all cases that involved constitutional questions, and that this
jurisdiction was not dependent on the identity of the parties in the cases. Marshall
argued that state laws and constitutions, when repugnant to the Constitution and
federal laws, were "absolutely void." After establishing the Court's jurisdiction,
Marshall declared the lottery ordinance a local matter and concluded that the Virginia
court was correct to fine the Cohens brothers for violating Virginia law.

Sources of Judicial Decisions

McCulloch v. Maryland
Facts of the Case:
In 1816, Congress chartered The Second Bank of the United States. In 1818, the state
of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the
cashier of the Baltimore branch of the bank, refused to pay the tax.
Question:
The case presented two questions: Did Congress have the authority to establish the
bank? Did the Maryland law unconstitutionally interfere with congressional powers?
Conclusion:
In a unanimous decision, the Court held that Congress had the power to incorporate
the bank and that Maryland could not tax instruments of the national government
employed in the execution of constitutional powers. Writing for the Court, Chief
Justice Marshall noted that Congress possessed unenumerated powers not explicitly
outlined in the Constitution. Marshall also held that while the states retained the
power of taxation, "the constitution and the laws made in pursuance thereof are
supreme. . .they control the constitution and laws of the respective states, and
cannot be controlled by them."

Calder v. Bull
Facts of the Case:
Mr. and Mrs. Caleb Bull, the stated beneficiaries of the will of Norman Morrison, were
denied an inheritance by a Connecticut probate court. When the Bulls attempted to
appeal the decision more than a year and a half later, they found that a state law
prohibited appeals not made within 18 months of the original ruling. The Bulls
persuaded the Connecticut legislature to change the restriction, which enabled them
to successfully appeal the case. Calder, the initial inheritor of Morrison's estate, took
the case to the Supreme Court.
Question:
Was the Connecticut legislation a violation of Article 1, Section 10, of the

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Constitution, which prohibits ex post facto laws?
Conclusion:
In a unanimous decision, the Court held that the legislation was not an ex post facto
law. The Court drew a distinction between criminal rights and "private rights,"
arguing that restrictions against ex post facto laws were not designed to protect
citizens' contract rights. Justice Chase noted that while all ex post facto laws are
retrospective, all retrospective laws are not necessarily ex post facto. Even "vested"
property rights are subject to retroactive laws.

Political Control of the Supreme Court

Ex parte McCardle
Facts of the Case:
William McCardle was arrested by federal authorities in 1867 for writing and
publishing a series of editorials in his Mississippi newspaper. The editorials were
sharply critical of Reconstruction. McCardle sought a writ of habeas corpus on the
ground that the Reconstruction Acts under which he was arrested were
unconstitutional. McCardle appealed to the Supreme Court under an 1867
congressional statute that conferred jurisdiction on appeal to the High Court. After
hearing arguments in the case, but prior to announcing a decision, the Congress
withdrew its 1867 act conferring jurisdiction.
Question:
May the Congress withdraw jurisdiction from the High Court after that jurisdiction has
been given?
Conclusion:
The Court, speaking through Chase, validated congressional withdrawal of the Court's
jurisdiction. The basis for this repeal was the exceptions clause of Article III Section 2.
But Chase pointedly reminded his readers that the 1868 statute repealing jurisdiction
"does not affect the jurisdiction which was previously exercised."

U.S. v. Klein
Facts of the Case:
Lincoln issued a proclamation offering a pardon to any person who had supported or
fought for the Confederate Army, with full restoration of property rights, subject only
to taking an oath of allegiance. Congress had passed an act in 1863 that permitted
an owner of property confiscated during the war to receive the proceeds from the
sale of the confiscated property. Based on the statute and the President's
proclamation, V.F. Wilson took the oath of allegiance. Mr. Klein, administrator of Mr.
Wilson's estate, then applied, properly, to the Court of Claims to recover the
proceeds of the sale of property seized from Mr. Wilson.
In 1870, Congress passed a law that prohibited the use of a Presidential pardon as
the basis for claiming sale proceeds, and further said that acceptance of such a
pardon was evidence that the person pardoned did provide support to the South and
was ineligible to recover sale proceeds.
Question:
Was congress’ law in 1870 unconstitutional and did they exceed its powers?
Conclusion:
The SC ruled that the 1870 statute was unconstitutional and that Congress had
exceeded its power by invading the province of the judicial branch by prescribing the
rule of decision in a particular cause. The Court also ruled that Congress had
impermissibly infringed the power of the executive branch by limiting the effect of a
Presidential pardon.
Broadly speaking, Klein stands for the proposition that the legislative branch cannot
impair the exclusive powers of another branch. Put another way, Klein recognizes
and supports the fundamental value of separation of powers defined by the

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Constitution. Specifically, Klein means that Congress may not direct the outcome of a
case by prescribing the rule of decision, nor may Congress impair the power and
effect of a Presidential pardon. Read more broadly, Klein suggests, but does not
state, that Congress may not use the Exceptions Clause to cripple the Court's ability
to be the final arbiter of what the Constitution means.

II. Federalism at work, the scope of congress’ powers

The Values of Federalism and some techniques for implementing them
U.S. Term Limits v. Thornton
Facts of the Case:
On November 3, 1992, Arkansas voters adopted Amendment 73 to their State
Constitution. The "Term Limitation Amendment," in addition to limiting terms of
elected officials within the Arkansas state government, also provided that any person
who served three or more terms as a member of the United States House of
Representatives from Arkansas would be ineligible for re-election as a US
Representative from Arkansas. Similarly, the Amendment provided that any person
who served two or more terms as a member of the United States Senate from
Arkansas would be ineligible for re-election as a US Senator from Arkansas.
Question:
Can states alter those qualifications for the U.S. Congress that are specifically
enumerated in the Constitution?
Conclusion:
No. The Constitution prohibits States from adopting Congressional qualifications in
addition to those enumerated in the Constitution. A state congressional term limits
amendment is unconstitutional if it has the likely effect of handicapping a class of
candidates and "has the sole purpose of creating additional qualifications indirectly."
Furthermore, "...allowing individual States to craft their own congressional
qualifications would erode the structure designed by the Framers to form a 'more
perfect Union.'"

Doctrinal Fundamentals: Federalism and Judicial Review

Gibbons v. Ogden
Facts of the Case:
A New York state law gave two individuals the exclusive right to operate steamboats
on waters within state jurisdiction. Laws like this one were duplicated elsewhere
which led to friction as some states would require foreign (out-of-state) boats to pay
substantial fees for navigation privileges. In this case a steamboat owner who did
business between New York and New Jersey challenged the monopoly that New York
had granted, which forced him to obtain a special operating permit from the state to
navigate on its waters.
Question:
Did the State of New York exercise authority in a realm reserved exclusively to
Congress, namely, the regulation of interstate commerce?
Conclusion:
The Court found that New York's licensing requirement for out-of-state operators was
inconsistent with a congressional act regulating the coasting trade. The New York law
was invalid by virtue of the Supremacy Clause. In his opinion, Chief Justice Marshall
developed a clear definition of the word commerce, which included navigation on
interstate waterways. He also gave meaning to the phrase "among the several
states" in the Commerce Clause. Marshall's was one of the earliest and most
influential opinions concerning this important clause. He concluded that regulation of
navigation by steamboat operators and others for purposes of conducting interstate
commerce was a power reserved to and exercised by the Congress.

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Hammer v. Dagenhart
Facts of the Case:
The Keating-Owen Child Labor Act prohibited the interstate shipment of goods
produced by child labor. Reuben Dagenhart's father had sued on behalf of his
freedom to allow his fourteen year old son to work in a textile mill.
Question:
Does the congressional act violate the Commerce Clause, the Tenth Amendment, or
the Fifth Amendment?
Conclusion:
Day spoke for the Court majority and found two grounds to invalidate the law.
Production was not commerce, and thus outside the power of Congress to regulate.
And the regulation of production was reserved by the Tenth Amendment to the
states. Day wrote that "the powers not expressly delegated to the national
government are reserved" to the states and to the people. In his wording, Day
revised the Constitution slightly and changed the intent of the framers: The Tenth
Amendment does not say "expressly." The framers purposely left the word expressly
out of the amendment because they believed they could not possibly specify every
power that might be needed in the future to run the government.

Wickard v. Filburn
Facts of the Case:
Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1
acres under a Department of Agriculture directive which authorized the government
to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above
his allotment. He claimed that he wanted the wheat for use on his farm, including
feed for his poultry and livestock. Fiburn was penalized. He argued that the excess
wheat was unrelated to commerce since he grew it for his own use.
Question:
Is the amendment subjecting Filburn to acreage restrictions in violation of the
Constitution because Congress has no power to regulate activities local in nature?
Conclusion:
According to Filburn, the act regulated production and consumption, which are local
in character. The rule laid down by Justice Jackson is that 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.'"

The Evolution of the Commerce Clause Doctrine

U.S. v. E.C. Knight Co.
Facts of the Case:
The Congress passed the Sherman Anti-Trust Act in 1890 as a response to the public
concern in the growth of giant combinations controlling transportation, industry, and
commerce. The Act aimed to stop the concentration of wealth and economic power in
the hands of the few. It outlawed "every contract, combination...or conspiracy, in
restraint of trade" or interstate commerce, and it declared every attempt to
monopolize any part of trade or commerce to be illegal. The E.C. Knight Company
was such a combination controlling over 98 percent of the sugar-refining business in
the United States.
Question:
Did Congress exceed its constitutional authority under the Commerce Clause when it
enacted the Sherman Anti-Trust Act?
Conclusion:
The Act was constitutional but it did not apply to manufacturing. Manufacturing was

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not commerce, declared Fuller for the majority; the law did not reach the admitted
monopolization of manufacturing (in this case, refining sugar). Although American
Sugar had monopolized manufacturing, the Court found no violation of the Sherman
Act because the acquisition of the Philadelphia refineries involved intrastate
commerce. The trust did not lead to control of interstate commerce and so "affects it
only incidentally and indirectly."

Houston, E & W Texas Railway v. U.S. (The Shreveport Rail

Case)
Facts of the Case:
A railroad company in Texas charged higher haulage rates for service between
Shreveport, Louisiana and Dallas, Texas, than it did for service involving greater
distances within Texas. The Interstate Commerce Commission (ICC) ordered the
railroad to charge similar rates for similar distances within and between states.
Question:
Did the ICC have the power to regulate intrastate rates?
Conclusion:
The regulation was legitimate. Justice Hughes argued that in situations where
interstate and intrastate commerce are "so related that the government of the one
involves the control of the other," Congress may lawfully exercise authority. In
fostering and regulating interstate commerce, Congress may take "all measures
necessary or appropriate" even if that means affecting intrastate commerce as well.

Champion v. Ames (The Lottery Case)

Facts of the Case:
The defendants in the case were arrested and convicted under an Act of Congress of
1895 that made it illegal to send or conspire to send lottery tickets across state lines.
Question:
Did the transport of lottery tickets by independent carriers constitute "commerce"
that Congress could regulate under the Commerce Clause?
Conclusion:
In a 5-to-4 decision, the Court held that lottery tickets were indeed "subjects of
traffic," and that independent carriers may be regulated under the Commerce
Clause. The Court emphasized the broad discretion Congress enjoys in regulating
commerce, noting that this power "is plenary, is complete in itself, and is subject to
no limitations except such as may be found in the Constitution." The Court argued
that Congress was merely assisting those states that wished to protect public morals
by prohibiting lotteries within their borders.

A.L.A. Schechter Poultry Corp. v. United States

Facts of the case:
The regulations at issue were promulgated under the authority of the National
Industrial Recovery Act of 1933. These included price and wage fixing, as well as
requirements regarding the sale of whole chickens, including unhealthy one
Question:
Were the NIRA provisions in excess of congressional power under the Commerce
Clause?
Conclusion:
The Court distinguished between direct effects on interstate commerce, which
Congress could lawfully regulate, and indirect, which were purely matters of state
law. Though the raising and sale of poultry was an interstate industry, the Court
found that the "stream of interstate commerce" had stopped in this case—
Schechter's slaughterhouses bought chickens almost exclusively from intrastate
wholesalers and sold completely exclusively to intrastate buyers. Any interstate

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effect of Schechter was indirect, and therefore beyond federal reach.

Carter v. Carter Coal Co.

Facts of the Case:
In 1935, Congress enacted the Bituminous Coal Conservation Act, also known as the
Guffey Coal Act. The Act regulated prices, minimum wages, maximum hours, and
"fair practices" of the coal industry. Although compliance was voluntary, tax refunds
were established as incentives to abide by the regulations. Carter, a stockholder,
brought suit against his own company in an attempt to keep it from paying the tax
for noncompliance. This case was decided together with R.C. Tway Coal Co. v. Clark,
R.C. Tway Coal Co. v. Glenn, and Halvering v. Carter.
Question:
Did the Bituminous Coal Conservation Act of 1935 exceed congressional powers
under the Commerce Clause?
Conclusion:
In a 5 to 4 decision, the Court held that the 1935 Act overstepped the bounds of
congressional power. The Court ruled that "commerce" is plainly distinct from
"production." Employing workers, setting wages and working hours, and mining coal
were found to be part of the local process of production, separate from any trade of
goods that could be regulated under the Commerce Clause. In striking down the law,
Justice Sutherland argued that "[e]verything which moves in interstate commerce
has had a local origin. Without local production somewhere, interstate commerce. . .
would practically disappear."

NLRB v. Jones & Laughlin Steel Corp.

Facts of the Case:
With the National Labor Relations Act of 1935, Congress determined that labor-
management disputes were directly related to the flow of interstate commerce and,
thus, could be regulated by the national government. In this case, the National Labor
Relations Board charged the Jones & Laughlin Steel Co. with discriminating against
employees who were union members.
Question:
Was the Act consistent with the Commerce Clause?
Conclusion:
Yes. The Court held that the Act was narrowly constructed so as to regulate industrial
activities which had the potential to restrict interstate commerce. The justices
abandoned their claim that labor relations had only an indirect effect on commerce.
Since the ability of employees to engage in collective bargaining (one activity
protected by the Act) is "an essential condition of industrial peace," the national
government was justified in penalizing corporations engaging in interstate commerce
which "refuse to confer and negotiate" with their workers.

United States v. Darby

Facts of the Case:
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.
Question:
Was the act a legitimate exercise of Congress's power to regulate interstate
commerce?
Conclusion:
The unanimous Court affirmed the right of Congress to exercise "to its utmost extent"
the powers reserved for it in the Commerce Clause. Relying heavily on the Court's

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decision in Gibbons v. Ogden (1824), Justice Stone argued that the "motive and
purpose of a regulation of interstate commerce are matters for the legislative
judgment . . . over which the courts are given no control." Congress acted with
proper authority in outlawing substandard labor conditions since they have a
significant impact on interstate commerce.

Heart of Atlanta Motel v. United States

Facts of the Case:
Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public
accommodation if their operations affected commerce. The Heart of Atlanta Motel in
Atlanta, Georgia, refused to accept Black Americans and was charged with violating
Title II.
Question:
Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce
Clause powers by depriving motels, such as the Heart of Atlanta, of the right to
choose their own customers?
Conclusion:
The Court held that the Commerce Clause allowed Congress to regulate local
incidents of commerce, and that the Civil Right Act of 1964 passed constitutional
muster. The Court noted that the applicability of Title II was "carefully limited to
enterprises having a direct and substantial relation to the interstate flow of goods
and people. . ." The Court thus concluded that places of public accommodation had
no "right" to select guests as they saw fit, free from governmental regulation.

Katzenbach v. McClung
Facts of the Case:
The owner of Ollie's Barbecue, in Birmingham Alabama, refused to serve blacks in
apparent violation of the Civil Rights Act of 1964. Part of the Act prevented
restaurants serving interstate travelers, or receiving a substantial amount of their
food from interstate commerce, from discriminating on the basis of race.
Question:
Does a restaurant's refusal to serve blacks burden interstate commerce to an extent
that Congress can legitimately prohibit such discrimination?
Conclusion:
The Court found that discrimination in restaurants posed significant burdens on "the
interstate flow of food and upon the movement on products generally." Furthermore,
argued Justice Clark, discrimination also posed restrictions on blacks who traveled
from state to state. Congress's solution to this problem was appropriate and within its
bounds to regulate interstate commerce.

United States v. Lopez

Facts of the Case:
Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his
San Antonio, Texas high school. He was charged under Texas law with firearm
possession on school premises. The next day, the state charges were dismissed after
federal agents charged Lopez with violating a federal criminal statute, the Gun-Free
School Zones Act of 1990. The act forbids "any individual knowingly to possess a
firearm at a place that [he] knows...is a school zone." Lopez was found guilty
following a bench trial and sentenced to six months' imprisonment and two years'
supervised release.
Question:
Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly
carrying a gun in a school zone, unconstitutional because it exceeds the power of
Congress to legislate under the Commerce Clause?
Conclusion:

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Yes. The possession of a gun in a local school zone is not an economic activity that
might, through repetition elsewhere, have a substantial effect on interstate
commerce. The law is a criminal statute that has nothing to do with "commerce" or
any sort of economic activity.

United States v. Morrison

Facts of the Case:
In 1994, while enrolled at Virginia Polytechnic Institute (Virginia Tech), Christy
Brzonkala alleged that Antonio Morrison and James Crawford, both students and
varsity football players at Virginia Tech, raped her. In 1995, Brzonkala filed a
complaint against Morrison and Crawford under Virginia Tech's Sexual Assault Policy.
After a hearing, Morrison was found guilty of sexual assault and sentenced to
immediate suspension for two semesters. Crawford was not punished. A second
hearing again found Morrison guilty. After an appeal through the university's
administrative system, Morrison's punishment was set aside, as it was found to be
"excessive." Ultimately, Brzonkala dropped out of the university. Brzonkala then sued
Morrison, Crawford, and Virginia Tech in Federal District Court, alleging that
Morrison's and Crawford's attack violated 42 USC section 13981, part of the Violence
Against Women Act of 1994 (VAWA), which provides a federal civil remedy for the
victims of gender-motivated violence. Morrison and Crawford moved to dismiss
Brzonkala's suit on the ground that section 13981's civil remedy was
unconstitutional. In dismissing the complaint, the District Court found that that
Congress lacked authority to enact section 13981 under either the Commerce Clause
or the Fourteenth Amendment, which Congress had explicitly identified as the
sources of federal authority for it. Ultimately, the Court of Appeals affirmed.
Question:
Does Congress have the authority to enact the Violence Against Women Act of 1994
under either the Commerce Clause or Fourteenth Amendment?
Conclusion:
No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held
that Congress lacked the authority to enact a statute under the Commerce Clause or
the Fourteenth Amendment since the statute did not regulate an activity that
substantially affected interstate commerce nor did it redress harm caused by the
state. Chief Justice Rehnquist wrote for the Court that [i]f the allegations here are
true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the
conduct of...Morrison. But under our federal system that remedy must be provided by
the Commonwealth of Virginia, and not by the United States." Dissenting, Justice
Stephen G. Breyer argued that the majority opinion "illustrates the difficulty of
finding a workable judicial Commerce Clause touchstone." Additionally, Justice David
H. Souter, dissenting, noted that VAWA contained a "mountain of data assembled by
Congress...showing the effects of violence against women on interstate commerce."

Other Powers of Congress: Taxing, Spending, and War Powers

The Taxing Power
Bailey v. Drexel Furniture Co.
Facts of the Case:
As an exercise of its taxing powers Congress enacted the Revenue Act of 1919, also
called the Child Labor Tax Law. Under the law, companies employing children under
fourteen years of age would be assessed ten percent of their annual profits. During
the same year in which the act was passed, Drexel Furniture Company was found in
violation of it and required to pay over $6000 in taxes, which it did under protest.
Question:
Did Congress violate the Constitution in adopting the Child Labor Tax Law in

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attempting to regulate the employment of children, a power reserved to the states
under the Tenth Amendment?
Conclusion:
Yes. The Court found that the Child Labor Tax Law was in violation of the Constitution
as it intruded on the jurisdiction of states to adopt and enforce child labor codes.
Chief Justice Taft argued that the tax law in question did much more than simply
impose an "incidental restraint" but exerted a "prohibitory and regulatory effect" in a
realm over which Congress had no jurisdiction. Taft feared that upholding this law
would destroy state sovereignty and devastate "all constitutional limitation of the
powers of Congress" by allowing it to disguise future regulatory legislation in the
cloak of taxes.

The Spending Power

United States v. Butler
Facts of the Case:
As part of the 1933 Agricultural Adjustment Act, Congress implemented a processing
tax on agricultural commodities, from which funds would be redistributed to farmers
who promised to reduce their acreage. The Act intended to solve the crisis in
agricultural commodity prices which was causing many farmers to go under.
Question:
Did Congress exceed its constitutional taxing and spending powers with the Act?
Conclusion:
The Court found the Act unconstitutional because it attempted to regulate and
control agricultural production, an arena reserved to the states. Even though
Congress does have the power to tax and appropriate funds, argued Justice Roberts,
in this case those activities were "but means to an unconstitutional end," and
violated the Tenth Amendment.

Steward Machine Co. v. Davis

Facts of the Case:
The Steward Machine Company challenged the validity of a tax imposed by the Social
Security Act. The Act established a federal payroll tax on employers; however, if
employers paid taxes to a state unemployment compensation fund (created by the
states subject to federal standards), they were allowed to credit those payments
toward the federal tax.
Question:
Did the Act arbitrarily impose taxes in violation of the Fifth Amendment or subvert
principles of federalism?
Conclusion:
In a 5-to-4 decision, the Court held that the tax under the Social Security Act was a
constitutional exercise of congressional power. The Court found that the tax was
uniform throughout the states and did not coerce the states in contravention of the
Tenth Amendment. The Court took note of recent unemployment statistics from the
years 1929 to 1936, maintaining that "[i]t is too late today for the argument to be
heard with tolerance that in a crisis so extreme the use of the moneys of the nation
to relieve the unemployed and their dependents is a use for any purpose narrower
than the promotion of the general welfare. . .The nation responded to the call of the
distressed."

Congress’ Enforcement Power under the Reconstruction Amendments

Katzenbach v. Morgan
Facts of the case:
Prior to the 1960s, many states and municipalities in the United States used literacy
tests in order to disenfranchise minorities. In 1959, the U.S. Supreme Court held that
literacy tests were not necessarily violations of Equal Protection Clause of the

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Fourteenth Amendment nor of the Fifteenth Amendment. Lassiter v. Northampton
Election Board (1959).
In 1965, Congress passed the Voting Rights Act of 1965, which sought to safeguard
the voting rights of previously disenfranchised minorities. Among other provisions,
the Voting Rights Act made some literacy tests illegal. Section 4 (e) was aimed at
securing the franchise for New York City's large Puerto Rican population and
"provides that no person who has completed the sixth grade in a public school, or an
accredited private school, in Puerto Rico in which the language of instruction was
other than English shall be disfranchised for inability to read or write English."
Question:
Did Congress exceed its powers of enforcement under the 14th Amendment
Congress infringe on rights reserved to states by the 10th Amendment?
Conclusion:
Section 4(e) was constitutional. Justice Brennan stressed that Section 5 of the
Fourteenth Amendment is "a positive grant of legislative power authorizing Congress
to exercise its discretion in determining the need for and nature of legislation to
secure Fourteenth Amendment guarantees." Justice Brennan applied the
appropriateness standard of McCulloch v. Maryland (1819) to determine whether the
legislation passed constitutional muster.
Section 4(e) arguably expanded rights beyond what the Court had recognized in
Lassiter, but Justice Brennan ruled that Section 4(e) was appropriate. In doing so,
Brennan has often been credited with introducing the "ratchet theory" for
congressional legislation enacted under Section 5. The "ratchet theory" held that
Congress could ratchet up civil rights beyond what the Court had recognized, but that
Congress could not ratchet down judicially recognized rights. The "ratchet theory"
essentially set judicially recognized rights as a support, on which Congress could
expand if it so chose. According to this "ratchet" theory, Justice Brennan's opinion
allowed for multiple interpreters of the Fourteenth Amendment, as opposed to just
the judiciary.

City of Boerne v. Flores

Facts of the Case:
The Archbishop of San Antonio sued local zoning authorities for violating his rights
under the 1993 Religious Freedom Restoration Act (RFRA), by denying him a permit
to expand his church in Boerne, Texas. Boerne's zoning authorities argued that the
Archbishop's church was located in a historic preservation district governed by an
ordinance forbidding new construction, and that the RFRA was unconstitutional
insofar as it sought to override this local preservation ordinance. On appeal from the
Fifth Circuit's reversal of a District Court's finding against Archbishop Flores, the
Court granted Boerne's request for certiorari.
Question:
Did Congress exceed its Fourteenth Amendment enforcement powers by enacting
the RFRA which, in part, subjected local ordinances to federal regulation?
Conclusion:
Yes. Under the RFRA, the government is prohibited from "substantially burden[ing]"
religion's free exercise unless it must do so to further a compelling government
interest, and, even then, it may only impose the least restrictive burden. The Court
held that while Congress may enact such legislation as the RFRA, in an attempt to
prevent the abuse of religious freedoms, it may not determine the manner in which
states enforce the substance of its legislative restrictions. This, the Court added, is
precisely what the RFRA does by overly restricting the states' freedom to enforce its
spirit in a manner which they deem most appropriate. With respect to this case,
specifically, there was no evidence to suggest that Boerne's historic preservation

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ordinance favored one religion over another, or that it was based on animus or
hostility for free religious exercise.

The Tenth amendment as a federalism based limitation on congressional

power
Missouri v. Holland
Facts of the Case:
In December 1916, the United States and Great Britain entered into a treaty to
protect a number of migratory birds in the U.S. and Canada. Congress passed the
Migratory Bird Treaty Act in 1918 in order to facilitate enforcement of the treaty.
When Ray P. Holland, the U.S. Game Warden, threatened to arrest citizens of Missouri
for violating the Act, the state of Missouri challenged the treaty.
Question:
Did the treaty infringe upon rights reserved to the states by the Tenth Amendment?
Conclusion:
No. In a 7-to-2 decision, the Court held that the national interest in protecting the
wildlife could be protected only by national action. The Court noted that the birds the
government sought to protect had no permanent habitats within individual states and
argued that "[b]ut for the treaty and the statute there soon might be no birds for any
powers to deal with." The Court thus upheld the exercise of the treaty power and
thus found no violation of the Tenth Amendment.

Garcia v. San Antonio Metropolitan Transit Authority

Facts of the Case:
The San Antonio Metropolitan Transit Authority (SAMTA), the main provider of
transportation in the San Antonio metropolitan area, claimed it was exempt from the
minimum-wage and overtime requirements of the Fair Labor Standards Act. SAMTA
argued that it was providing a "traditional" governmental function, which exempted it
from federal controls according to the doctrine of federalism established in National
League of Cities v. Usery (1976). Joe G. Garcia, an employee of SAMTA, brought suit
for overtime pay under Fair Labor Standards Act.
Question:
Did principles of federalism make the San Antonio Metropolitan Transit Authority
immune from the Fair Labor Standards Act?
Conclusion:
In a 5-to-4 decision, the Court held that the guiding principles of federalism
established in National League of Cities v. Usery were unworkable and that SAMTA
was subject to Congressional legislation under the Commerce Clause. The Court
found that rules based on the subjective determination of "integral" or "traditional"
governmental functions provided little or no guidance in determining the boundaries
of federal and state power. The Court argued that the structure of the federal system
itself, rather than any "discrete limitations" on federal authority, protected state
sovereignty.

New York v. United States

Facts of the Case:
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. New York State and Allegany and Courtland counties were
frustrated in their compliance efforts by resistance from residents to proposed
radioactive waste sites and a lack of cooperation from neighboring states. New York
filed suit against the federal government, questioning the authority of Congress to
regulate state waste management.
Question:
Does the Low-Level Waste Act violate the Tenth Amendment and the "guarantee

12
clause" of Article Four?
Conclusion:
In a 6-3 decision, the Court upheld two of the three provisions of the Act under
review, reasoning that Congress had the authority under the Commerce Clause to
use financial rewards and access to disposal sites as incentives for state waste
management. The third provision, the "take-title" qualification, stipulated that states
must take legal ownership and liability for low-level waste or by the regulatory act.
"Either type of federal action," wrote Justice Sandra Day O'Connor, "would
'commandeer' state governments into the service of federal regulatory purposes, and
would for this reason be inconsistent with the Constitution's division of authority
between federal and state governments." This last provision violated the Tenth
Amendment.

Printz v. United States

Facts of the Case:
The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law
enforcement officers" (CLEOs) to perform background-checks on prospective
handgun purchasers, until such time as the Attorney General establishes a federal
system for this purpose. County sheriffs Jay Printz and Richard Mack, separately
challenged the constitutionality of this interim provision of the Brady Bill on behalf of
CLEOs in Montana and Arizona respectively. In both cases District Courts found the
background-checks unconstitutional, but ruled that since this requirement was
severable from the rest of the Brady Bill a voluntary background-check system could
remain. On appeal from the Ninth Circuit's ruling that the interim background-check
provisions were constitutional, the Supreme Court granted certiorari and
consolidated the two cases deciding this one along with Mack v. United States.
Question:
Using the Necessary and Proper Clause of Article I as justification, can Congress
temporarily require state CLEOs to regulate handgun purchases by performing those
duties called for by the Brady Bill's handgun applicant background-checks?
Conclusion:
No. The Court constructed its opinion on the old principle that state legislatures are
not subject to federal direction. The Court explained that while Congress may require
the federal government to regulate commerce directly, in this case by performing
background-checks on applicants for handgun ownership, the Necessary and Proper
Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it -
even temporarily. The Court added that the Brady Bill could not require CLEOs to
perform the related tasks of disposing of handgun-application forms or notifying
certain applicants of the reasons for their refusal in writing, since the Brady Bill
reserved such duties only for those CLEO's who voluntarily accepted them.

III. State Regulation of Interstate Commerce: Federal Limitations

Cooley v. Board of Wardens
Facts of the Case:
A Pennsylvania law required that all ships entering or leaving the port of Philadelphia
hire a local pilot. Ships that fail to do so would be subject to a fine, which would go to
a fund for retire pilots and their dependents. This fund was administered by the
Board of Wardens of the Port of Philadephia. Cooley was a ship owner. He refused to
hire a local pilot and he also refused to pay the fine.
Question:
Does the law violate the Commerce Clause of the Constitution?
Conclusion:
According to Justice Curtis, who wrote the majority opinion, the pilotage law did not
violate the Constitution. Congress had provided in 1789 that state pilotage laws
should govern. Navigation was commerce; and, piloting was navigation. Though the

13
subject to be regulated was commerce, the interesting twist here was whether the
Commerce Power was exclusive. Some subjects demand a single uniform rule for the
whole nation, while others, like pilotage, demand diverse local rules to cope with
varying local conditions. The power of Congress was therefore selectively exclusive.

Modern Approach
- Regulation must pursue a legitimate state end
- Regulation must be rationally related to that legitimate end
- Regulatory burden imposed by the state on interstate commerce, and any
discrimination against interstate commerce, must be outweighed by the
state’s interest in enforcing its regulation.

Protection against discrimination

City of Philadelphia v. New Jersey
Facts of the Case:
A New Jersey law prohibited the importation of most "solid or liquid waste that
originated or was collected outside the territorial limits of the State."
Question:
Did New Jersey's waste importation law violate the Commerce Clause?
Conclusion:
Yes. The Court held that the law violated the principle of nondiscrimination as it
treated out-of-state waste differently than waste produced within the state. Since
New Jersey could not demonstrate a legitimate reason for distinguishing between
foreign and domestically produced waste, it was clear to the Court that the state had
"overtly moved to slow or freeze the flow of commerce for projectionist reasons."

C&A Carbone, Inc. v. Clarkstown

Facts of the Case:
A New York town, Clarkstown, allowed a contractor to construct and operate a waste
processing plant within town limits. The revenue from the plant would help
compensate the contractor. Clarkstown promised that the plant would receive
120,000 tons of solid waste each year, and permitted the contractor to charge an
$81 "tipping fee" for each ton received. To meet the 120,000 ton quota, Clarkstown
adopted a "flow control ordinance." The ordinance required that all solid waste
flowing into and out of the town pass through the new plant. C & A Carbone, Inc.
operated a similar plant within the town. To avoid paying the $81 fee, Carbone
trucked processed waste directly to an Indiana landfill. In 1991, a Carbone truck
carrying illegal waste crashed and police discovered that Carbone was violating the
ordinance. Clarkstown sued Carbone in a New York Supreme Court. Carbone
responded by suing Clarkstown in a federal District Court, claiming that the ordinance
violated the Commerce Clause by disrupting interstate commerce. The District Court
agreed but dissolved its injunction against Clarkstown when the New York Supreme
Court ruled in favor of Clarkstown.
Question:
Does a town's "flow control ordinance," which requires that all waste pass through a
certain waste processing plant, violate the interstate Commerce Clause by disrupting
commerce for waste processing plants in other states?
Conclusion:
Yes. The Court held 6-3 that the Commerce Clause invalidates local laws that
discriminate against interstate commerce, disrupt the flow of articles of commerce,
and grant municipalities disproportionate market gains. In an opinion authored by
Justice Anthony Kennedy, the Court found that "the article of commerce...is the

14
service of processing and disposing of [waste]." The Court held that the flow
ordinance was discriminatory because "[i]t hoards solid waste...for the benefit of the
preferred processing facility." For the ordinance to be constitutional, the municipality
would have had to prove that its effects on commerce are nondiscriminatory and
justified by a "legitimate local interest."

Dean Milk Co. v. Madison

Facts of the Case:
A Madison, Wisconsin ordinance prohibited the sale of milk within city limits unless it
came from a local farm or was pasteurized at an approved plant within five miles of
the center of Madison. When the Dean Milk Company, located in Illinois, was denied a
permit to sell milk, it filed suit against the city.
Question:
Did the Madison ordinance unconstitutionally interfere with interstate commerce?
Conclusion:
In a 6-to-3 decision, the Court held that the Wisconsin ordinance imposed an "undue
burden" on interstate commerce. The Court argued that general discrimination
against non-local producers was not narrowly tailored to serve the city's interests.
Reasonable, nondiscriminatory alternatives were available to ensure milk sold in the
city was wholesome and properly pasteurized. "To permit Madison to adopt a
regulation not essential for the protection of local health interest and placing a
discriminatory burden on interstate commerce would invite a multiplication of
preferential trade areas destructive of the very purpose of the Commerce Clause."

West Lynn Creamery, Inc. v. Healy

Facts of the case:

Healy was the Massachusetts Commissioner Department of Food and Agriculture

(respondent) Pl/pet is a milk dealer licensed within Mass. with 97% of the milk it
purchases is from out of state farmers. In response to Mass farmers losing market
share to lower cost producers from outside, Mass enacted a pricing order. The order
required every dealer in Mass. to make a monthly premium payment based on the
amount of fluid milk sales into a FUND. Said fund then distributed money to local
dairy farmers proportionate to their contribution into the State’s production of raw
milk.

Question:

Did the pricing order unconstitutionally discriminate against interstate commerce?

Conclusion:

Yes.

Principle under commerce clause is that a state may not benefit in-state economic
interests by burdening out-of-state competitors. Art. 1, § 8, cl. 3.

The Commerce Clause also limits the power of the Commonwealth of Massachusetts
to adopt regulations that discriminate against interstate commerce. Thus, state
statutes that clearly discriminate against interstate commerce are routinely struck
down ... unless the discrimination is demonstrably justified by a valid factor unrelated
to economic protectionism. The "premium payments" are effectively a tax that

15
makes milk produced out of State more expensive. Although the tax also applies to
milk produced in Massachusetts, its effect on Massachusetts producers is entirely
(indeed more than) offset by the subsidy provided exclusively to Massachusetts dairy
farmers. Like an ordinary tariff, the tax is thus effectively imposed only on out-of-
state products. The premiums simultaneously burdens interstate commerce and
discriminates in favor of local producers.

Market-participant doctrine
Hughes v. Alexandria Scrap Corp.
Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976) was a case argued before
the Supreme Court of the United States. Maryland created a program that, 1)
purchased junked cars, 2) paid a bounty for those with Maryland license plates and,
3) imposed more stringent documentation requirements on out-of-state processors,
in an effort to reduce the number of abandoned cars in Maryland.
The Issue before the Court is whether such a program violates the Dormant
Commerce Clause—essentially, whether Maryland could Constitutionally discriminate
or burden interstate commerce by imposing more stringent documentation
requirements on out-of-state processors or favoring in-state car dealerships when
they purchase junk cars.
Unlike previous Dormant Commerce Clause cases, Maryland was acting like a market
participant (as opposed to a state regulator). In such instances, the Court determined
that a state actor can favor its own citizens over the foreign citizens.
This case created the "market participant" exception to the general restrictions on
states imposed by the Dormant Commerce Clause.
Determining when a state is acting like a "market participant" rather than as a
regulator was not decided by this case, but found in South Central Timber
Development v. Wunnicke, 467 U.S. 82 (1984).

South-Central Timber Dev. v. Wunnicke

Invalidated Alaska's policy of insisting that high-bidders on state-owned timber agree
to process some of the timber they purchased at Alaskan sawmills. The Court saw
the bidding rules as an attempt to control commerce "down the stream," and that
therefore the state was acting as a regulator, not as a mere market participant.

Reeves v. Stake
Facts of the Case:
The state of South Dakota operated a cement plant. A substantial percentage of the
plant's production was sold to buyers outside the state. One such customer was
Reeves, Inc., a concrete distributor in Wyoming that obtained over 90 percent of its
cement from the state-run plant. In 1978, for economic reasons, the South Dakota
plant began supplying in-state customers before honoring other commitments.
Reeves, Inc. challenged South Dakota's "hoarding" of resources.
Question:
Did South Dakota's preferential system violate the Commerce Clause?
Conclusion:
In a 5-to-4 decision, the Court reaffirmed its holding in Hughes v. Alexandria Scrap
Corp. and found that "'[n]othing in the purposes animating the Commerce Clause
prohibits a State, in the absence of congressional action, from participating in the
market and exercising the right to favor its own citizens over others.'" The Court
found that South Dakota was acting as a "market participant" rather than a "market
regulator," and was capable of withdrawing from the interstate market if an in-state
shortage arose. The Court rejected arguments that cement was a "natural resource"

16
to which South Dakota had sought to limit outside access.

The Privileges and Immunities Clause

United Building & Construction trades council v. Camden
Facts of the case:
A municipal ordinance of the city of Camden, New Jersey, required that at least 40%
of the employees of contractors and subcontractors working on city construction
projects be Camden residents.
Question:
Was the ordinance unconstitutional based on the privileges and immunities clause?
Conclusion:
A city can pressure private employers to hire city residents, but the same exercise of
power to bias private contractors against out-of-state residents may be called into
account under the Privileges and Immunities Clause of Article Four of the United
States Constitution.

The Equal Protection Clause

Metropolitan Life Insurance Co. v. Ward
Facts of the case:
An Alabama statute imposes a substantially lower gross premiums tax rate on
domestic insurance companies than on out-of-state (foreign) insurance companies.
The statute permits foreign companies to reduce but not to eliminate the differential
by investing in Alabama assets and securities.
Question:
Did the statute violate the equal protection clause?
Conclusion:
The Alabama domestic preference tax statute violates the Equal Protection Clause as
applied to appellants. (a) Under the circumstances of this case, promotion of
domestic business by discriminating against nonresidents is not a legitimate state
purpose. Western & Southern Life Ins. Co. v. State Board of Equalization of California,
451 U.S. 648, distinguished. Alabama's aim to promote domestic industry is purely
and completely discriminatory, designed only to favor domestic industry within the
State, no matter what the cost to foreign corporations also seeking to do business
there. Alabama's purpose constitutes the very sort of parochial discrimination that
the Equal Protection Clause was intended to prevent. A State may not constitutionally
favor its own residents by taxing foreign corporations at a higher rate solely because
of their residence. Although the McCarran-Ferguson Act exempts the insurance
industry from Commerce Clause restrictions, it does not purport to limit the
applicability of the Equal Protection Clause. Equal protection restraints are applicable
even though the effect of the discrimination is similar to the type of burden with
which the Commerce Clause also would be concerned.
(b) Nor is the encouragement of the investment in Alabama assets and securities a
legitimate state purpose. Domestic insurers remain entitled to the more favorable tax
rate regardless of whether they invest in Alabama assets. Moreover, since the
investment incentive provision does not enable foreign insurers to eliminate the
statute's discriminatory effect, it does not cure, but reaffirms, the impermissible
classification based solely on residence.

Facially neutral statutes with significant effects on interstate commerce

Hunt v. Wash. State Apple Ad. Comm.
Facts of the Case:
In 1972, the North Carolina Board of Agriculture adopted a regulation that required
all apples shipped into the state in closed containers to display the USDA grade or
nothing at all. Washington State growers (whose standards are higher than the
USDA) challenged the regulation as an unreasonable burden to interstate commerce.

17
North Carolina stated it was a valid exercise of its police powers to create
"uniformity" to protect its citizenry from "fraud and deception."
Question:
Did the North Carolina regulation violate the Commerce Clause by placing an
unreasonable burden on interstate commerce?
Conclusion:
The Court voted unanimously that the North Carolina regulation was an
unconstitutional exercise of the state's power over interstate commerce. Although
the regulation was facially neutral, it had a discriminatory impact on the Washington
growers while shielding the local growers from the same burden. The regulation
removed the competitive advantage gained by the Washington apples from stricter
inspection standards. The regulation produced a leveling effect that works to the
local advantage by "downgrading" apples from other states unjustly. Therefore, the
regulation places an unreasonable burden on interstate commerce.

Exxon Corp. v. Governor of Maryland

The Supreme Court of the United States upheld a Maryland law prohibiting oil
producers and refiners from operating service stations within its borders. The law was
a response to evidence that those stations, which represented about 5% of all those
in Maryland, had received preferential treatment during the 1973 oil crisis.
The challengers, including Exxon, claimed that the law violated the Dormant
Commerce Clause. Justice Stevens wrote for the majority, which disagreed with
Exxon et al.: "Since Maryland's entire gasoline supply flows in interstate commerce
and since there are no local producers or refiners, such claims of disparate treatment
between interstate and local commerce would be meritless."
Majority held that Act does not (1) discriminate against interstate dealers (2) prohibit
the flow of interstate goods (3) place added cost on them (4) or distinguish between
in-state or out-of-state retailers. The absence of any of these factors fully
distinguishes this case from Hunt v. Washington Apple Commission.
The Court held that the regulation was constitutional despite huge extraterritorial
effects of the regulation, less burdensome options available to the state, and no
legitimate state interest apart from a desire for cheaper oil. This case is an exception
to the rules set forth in Pike v. Bruce Church.

Kassel v. Consolidated Freightways Corp.

Facts of the Case:
An Iowa law restricted the length of vehicles traveling on its highways. Iowa justified
the law as a reasonable use of its police power to assure safety on the state's roads.
Question:
Did the law pose an unconstitutional burden on interstate commerce?
Conclusion:
The Court held that the law violated the Commerce Clause for two reasons. First,
Iowa could not prove that the vehicles it targeted posed potential danger to highway
travelers. The safety interest was "illusory." Second, the law was "out of step with the
laws of all other Midwestern and Western States" which did not have similar
regulations. This placed significant burdens on the flow of interstate commerce.

IV. The distribution of national powers

Intro
The Federalist No. 47(Madison)
Like the other Federalist Papers, No. 47 advocated the ratification the United States
Constitution. In No. 47, Madison addressed criticisms that the Constitution did not
create a sufficient separation of powers among the executive, judiciary, and
legislature. Madison acknowledged that the three branches intertwined but asserted

18
that the blending did not violate the principle of separation of powers. To support his
argument, Madison referred to the writings of Montesquieu. Madison attributes the
widespread support of a separation of powers to Montesquieu. According to
Montesquieu, tyranny results when one branch of government simultaneously holds
the powers of another branch. However, Madison argues that Montesquieu "did not
mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL
over, the acts of each other."[1]
Madison's interpretation of Montesquieu supported a system of checks and balances
quite similar to checks and balances the former thirteen colonies had created in their
state constitutions. Madison tried to enlist the support of the young states by
analyzing their individual constitutions. He finds that "there is not a single instance in
which the several departments of power have been kept absolutely separate and
distinct."[2] For example, the New Hampshire Constitution allowed its senate to serve
as a judicial tribunal for impeachments. The United States Constitution similarly
granted the powers of impeachment to the legislature. Madison said that if the states
did not think their constitutions violated the separation of powers, the new national
Constitution did not violate of the separation of powers either.
Although each branch has its distinctive powers, it cannot stand alone without the
check and balance system of the other two branches. Madison viewed the separation
of power as essential because without it only one power would rule the country,
which could easily lead to abusive ruling.

The Federalist No. 48(Madison)

Federalist No. 47 argued that the branches of government can be connected, while
remaining "separate and distinct". The argument of No. 48 is that, in order to
practically maintain the branches as "separate and distinct", they must have "a
constitutional control" over each other.
The paper begins by asserting that "power is of an encroaching nature", i.e. those
with power will attempt to control everything they can. It then asks how this
tendency can be stopped, in order to preserve the "separate and distinct" quality of
the branches of government. It then makes the claim that merely defining the
boundaries of the branches is an insufficient safeguard. It singles out the legislative
branch as being particularly successful in taking over power.
As an aside from the main argument, the paper notes that the danger of the
legislative branch taking over has not been thought about by the "founders of our
republics", i.e. the people who wrote the thirteen state constitutions.
The paper offers a number of reasons why legislative over-reaching is more likely in a
"representative republic", as distinct from other types of government. These reasons
include the claim that the legislature is "sufficiently numerous to feel all the passions
which actuate a multitude, yet not so numerous as to be incapable of pursuing the
objects of its passions" and that its powers are both "more extensive, and less
susceptible of precise limits".
Then two examples of legislative over-reaching are given: Virginia and Pennsylvania.
The Virginia example is primarily a long quote from Thomas Jefferson's Notes on the
State of Virginia, in which he corroborates the claims of the paper.
In respect of Pennsylvania, the paper summarizes the conclusions of a report by a
"Council of Censors" on apparent violations of the Pennsylvania constitution; it found
many. A small rebuttal is made to the claim in the report that many violations were
committed by the executive branch, not only the legislative branch.

19
A Case Study: Presidential Seizure – Youngstown, Dames & Moore
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure
Case)
Facts of the Case:
In April of 1952, during the Korean War, President Truman issued an executive order
directing Secretary of Commerce Charles Sawyer to seize and operate most of the
nation's steel mills. Truman did this in order to avert the expected effects of a strike
by the United Steelworkers of America.
Question:
Did the President have the constitutional authority to seize and operate the steel
mills?
Conclusion:
In a 6-to-3 decision, the Court held that the President did not have the authority to
issue such an order. The Court found that there was no congressional statute that
authorized the President to take possession of private property. The Court also held
that the President's military power as Commander in Chief of the Armed Forces did
not extend to labor disputes. The Court argued that "the President's power to see
that the laws are faithfully executed refutes the idea that he is to be a lawmaker."
*Jackson's opinion took a similarly flexible approach to the issue, eschewing any fixed
boundaries between Congress' and the President's power. Jackson divided
Presidential authority vis a vis Congress into three categories, ranked in descending
order of legitimacy: (1) those cases in which the President was acting with express or
implied authority from Congress, (2) cases in which Congress had thus far been
silent, and (3) cases in which the President was defying congressional orders. He
classified this case as falling within the third category.

Dames & Moore v. Regan

Facts of the Case:
In reaction to the seizure of the U.S. embassy and American nationals in Iran,
President Jimmy Carter invoked the International Emergency Economic Powers Act
(IEEPA) and froze Iranian assets in the United States. When the hostages were
released in 1981, Treasury Secretary Donald Reagan affirmed the agreements made
by the Carter administration that terminated all legal proceedings against the Iranian
government and created an independent Claims Tribunal. Dames & Moore attempted
to recover over $3 million owed to it by the Iranian government and claimed the
executive orders were beyond the scope of presidential power.
Question:
Did the president have the authority to transfer Iranian funds and to nullify legal
claims against Iran?
Conclusion:
The Court held that the International Emergency Economic Powers Act constituted a
specific congressional authorization for the President to order the transfer of Iranian
assets. The Court further held that although the IEEPA itself did not authorize the
presidential suspension of legal claims, previous acts of Congress had "implicitly
approved" of executive control of claim settlement. The Court emphasized the
narrowness of its ruling, limiting the decision to the facts of the case.

Foreign Affairs
Executive Authority
United States v. Curtiss-Wright Corp.
Facts of the Case:
Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia,
which was engaged in an armed conflict in the Chaco. This violated a Joint Resolution

20
of Congress and a proclamation issued by President Roosevelt.
Question:
Did Congress in its Joint Resolution unconstitutionally delegate legislative power to
the President?
Conclusion:
The Court agreed that the President was allowed much room to operate in executing
the Joint Resolution; it found no constitutional violation. Making important distinctions
between internal and foreign affairs, Justice Sutherland argued because "the
President alone has the power to speak or listen as a representative of the nation,"
Congress may provide the President with a special degree of discretion in external
matters which would not be afforded domestically.

The Prize Cases

Facts of the Case:
Lincoln proclaimed a blockade of southern ports in April 1861. Congress authorized
him to declare a state of insurrection by the Act of July 13, 1861. By the Act of August
6, 1861, Congress retroactively ratified all Lincoln's military action. These cases
involved the seizure of vessels bound for Confederate ports prior to July 13, 1861.
Question:
Did Lincoln act within his presidential powers defined by Article II when he ordered
the seizures absent a declaration of war?
Conclusion:
The President had the power to act. A state of civil war existed de facto after the
firing on Fort Sumter (April 12, 1861) and the Supreme Court would take this fact into
account. Though neither Congress nor the President can declare war against a state
of the Union, when states waged war against the United States government, the
President was "bound to meet it in the shape it presented itself,without waiting for
Congress to baptize it with a name."

Hamdi v. Rumsfeld
Facts of the Case:
In the fall of 2001, Yaser Hamdi, an American citizen, was arrested by the United
States military in Afghanistan. He was accused of fighting for the Taliban against the
U.S., declared an "enemy combatant," and transfered to a military prison in Virginia.
Frank Dunham, Jr., a defense attorney in Virginia, filed a petition for a writ of
certiorari in federal district court there, first on his own and then for Hamdi's father,
in an attempt to have Hamdi's detention declared unconstitutional. 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.
The district court ruled for Hamdi, telling the government to release him. On appeal,
a Fourth Circuit Court of Appeals panel reversed, finding that the separation of
powers required federal courts to practice restraint during wartime because "the
executive and legislative branches are organized to supervise the conduct of
overseas conflict in a way that the judiciary simply is not." The panel therefore found
that it should defer to the Executive Branch's "enemy combatant" determination.
Question:
Did the government violate Hamdi's Fifth Amendment right to Due Process by
holding him indefinitely, without access to an attorney, based solely on an Executive
Branch declaration that he was an "enemy combatant" who fought against the United
States? Does the separation of powers doctrine require federal courts to defer to
Executive Branch determinations that an American citizen is an "enemy combatant"?
Conclusion:

21
Yes and no. In an opinion backed by a four-justice plurality and partly joined by two
additional justices, Justice Sandra Day O'Connor wrote that although Congress
authorized Hamdi's detention, Fifth Amendment due process guarantees give a
citizen held in the United States as an enemy combatant the right to contest that
detention before a neutral decision maker. The plurality rejected the government's
argument that the separation-of-powers prevents the judiciary from hearing Hamdi's
challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred
with the plurality that Hamdi had the right to challenge in court his status as an
enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view
that Congress authorized Hamdi's detention. Justice Antonin Scalia issued a dissent
joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.

The War Powers Resolution

Page 399

Domestic Affairs
Executive Authority
United States v. Nixon
Facts of the Case:
A grand jury returned indictments against seven of President Richard Nixon's closest
aides in the Watergate affair. The special prosecutor appointed by Nixon and the
defendants sought audio tapes of conversations recorded by Nixon in the Oval Office.
Nixon asserted that he was immune from the subpoena claiming "executive
privilege," which is the right to withhold information from other government branches
to preserve confidential communications within the executive branch or to secure the
national interest. Decided together with Nixon v. United States.
Question:
Is the President's right to safeguard certain information, using his "executive
privilege" confidentiality power, entirely immune from judicial review?
Conclusion:
No. The Court held that neither the doctrine of separation of powers, nor the
generalized need for confidentiality of high-level communications, without more, can
sustain an absolute, unqualified, presidential privilege. The Court granted that there
was a limited executive privilege in areas of military or diplomatic affairs, but gave
preference to "the fundamental demands of due process of law in the fair
administration of justice." Therefore, the president must obey the subpoena and
produce the tapes and documents. Nixon resigned shortly after the release of the
tapes.

Nixon v. Fitzgerald
Facts of the Case:
In 1968, Fitzgerald, then a civilian analyst with the United States Air Force, testified
before a congressional committee about inefficiencies and cost overruns in the
production of the C-5A transport plane. Roughly one year later he was fired, an action
for which President Nixon took responsibility. Fitzgerald then sued Nixon for damages
after the Civil Service Commission concluded that his dismissal was unjust.
Question:
Was the President immune from prosecution in a civil suit?
Conclusion:
Yes. The Court held that the President "is entitled to absolute immunity from
damages liability predicated on his official acts." This sweeping immunity, argued
Justice Powell, was a function of the "President's unique office, rooted in the
constitutional tradition of separation of powers and supported by our history."

Clinton v. Jones

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Facts of the Case:
Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an
Arkansas state employee, she suffered several "abhorrent" sexual advances from
then Arkansas Governor Clinton. Jones claimed that her continued rejection of
Clinton's advances ultimately resulted in punishment by her state supervisors.
Following a District Court's grant of Clinton's request that all matters relating to the
suit be suspended, pending a ruling on his prior request to have the suit dismissed on
grounds of presidential immunity, Clinton sought to invoke his immunity to
completely dismiss the Jones suit against him. While the District Judge denied
Clinton's immunity request, the judge ordered the stay of any trial in the matter until
after Clinton's Presidency. On appeal, the Eighth Circuit affirmed the dismissal denial
but reversed the trial deferment ruling since it would be a "functional equivalent" to
an unlawful grant of temporary presidential immunity.
Question:
Is a serving President, for separation of powers reasons, entitled to absolute
immunity from civil litigation arising out of events which transpired prior to his taking
office?
Conclusion:
No. In a unanimous opinion, the Court held that the Constitution does not grant a
sitting President immunity from civil litigation except under highly unusual
circumstances. After noting the great respect and dignity owed to the Executive
office, the Court held that neither separation of powers nor the need for
confidentiality of high-level information can justify an unqualified Presidential
immunity from judicial process. While the independence of our government's
branches must be protected under the doctrine of separation of powers, the
Constitution does not prohibit these branches from exercising any control over one
another. This, the Court added, is true despite the procedural burdens which Article
III jurisdiction may impose on the time, attention, and resources of the Chief
Executive.

Legislative Authority

Delegation
Page 418

Clinton v. New York

Facts of the Case:
This case consolidates two separate challenges to the constitutionality of two
cancellations, made by President William J. Clinton, under the Line Item Veto Act
("Act"). In the first, the City of New York, two hospital associations, a hospital, and
two health care unions, challenged the President's cancellation of a provision in the
Balanced Budget Act of 1997 which relinquished the Federal Government's ability to
recoup nearly $2.6 billion in taxes levied against Medicaid providers by the State of
New York. In the second, the Snake River farmer's cooperative and one of its
individual members challenged the President's cancellation of a provision of the
Taxpayer Relief Act of 1997. The provision permitted some food refiners and
processors to defer recognition of their capital gains in exchange for selling their
stock to eligible farmers' cooperatives. After a district court held the Act
unconstitutional, the Supreme Court granted certiorari on expedited appeal.
Question:
Did the President's ability to selectively cancel individual portions of bills, under the
Line Item Veto Act, violate the Presentment Clause of Article I?
Conclusion:
Yes. In a 6-to-3 decision the Court first established that both the City of New York,
and its affiliates, and the farmers' cooperative suffered sufficiently immediate and

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concrete injuries to sustain their standing to challenge the President's actions. The
Court then explained that under the Presentment Clause, legislation that passes both
Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e.
vetoed) by the President. The Court held that by canceling only selected portions of
the bills at issue, under authority granted him by the Act, the President in effect
"amended" the laws before him. Such discretion, the Court concluded, violated the
"finely wrought" legislative procedures of Article I as envisioned by the Framers.

Legislative Veto
INS v. Chadha
Facts of the Case:
In one section of the Immigration and Nationality Act, Congress authorized either
House of Congress to invalidate and suspend deportation rulings of the United States
Attorney General. Chadha had stayed in the U.S. past his visa deadline and was
ordered to leave the country. The House of Representatives suspended the
Immigration judge's deportation ruling. This case was decided together with United
States House of Representatives v. Chadha and United States Senate v. Chadha.
Question:
Did the Immigration and Nationality Act, which allowed a one-House veto of
executive actions, violate the separation of powers doctrine?
Conclusion:
The Court held that the particular section of the Act in question did violate the
Constitution. Recounting the debates of the Constitutional Convention over issues of
bicameralism and separation of powers, Chief Justice Burger concluded that even
though the Act would have enhanced governmental efficiency, it violated the "explicit
constitutional standards" regarding lawmaking and congressional authority.

Administrative Agencies
Myers v. United States
Facts of the Case:
An 1876 law provided that postmasters of the first, second, and third classes shall be
appointed and may be removed by the President with the advice and consent of the
Senate. President Woodrow Wilson removed Myers, a postmaster first class, without
seeking Senate approval.
Question:
Did the Act unconstitutionally restrict the President's power to remove appointed
officials?
Conclusion:
Yes. After tracing legislative debate of the First Congress in 1789 which dealt with the
interpretation of the President's appointment power, Chief Justice Taft concluded that
the power to remove appointed officers is vested in the President alone. According to
Taft, to deny the President that power would not allow him to "discharge his own
constitutional duty of seeing that the laws be faithfully executed."

Humphrey’s Executor v. United States

Facts of the Case:
President Hoover appointed, and the Senate confirmed, Humphrey as a
commissioner of the Federal Trade Commission (FTC). In 1933, President Roosevelt
asked for Humphrey's resignation since the latter was a conservative and had
jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to
resign, Roosevelt fired him because of his policy positions. However, the FTC Act only
allowed a president to remove a commissioner for "inefficiency, neglect of duty, or
malfeasance in office." Since Humphrey died shortly after being dismissed, his
executor sued to recover Humphrey's lost salary.
Question:

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Did section 1 of the Federal Trade Commission Act unconstitutionally interfere with
the executive power of the President?
Conclusion:
The unanimous Court found that the FTC Act was constitutional and that Humphrey's
dismissal on policy grounds was unjustified. The Court reasoned that the Constitution
had never given "illimitable power of removal" to the president. Justice Sutherland
dismissed the government's main line of defense in this case which relied heavily on
the Court's decision in Meyers v. United States (1926). In that case the Court upheld
the president's right to remove officers who were "units of the executive
department." The FTC was different, argued Sutherland, because it was a body
created by Congress to perform quasi-legislative and judicial functions. The Meyers
precedent, therefore, did not apply in this situation.

Buckley v. Valeo
Facts of the Case:
In the wake of the Watergate affair, Congress attempted to ferret out corruption in
political campaigns by restricting financial contributions to candidates. Among other
things, the law set limits on the amount of money an individual could contribute to a
single campaign and it required reporting of contributions above a certain threshold
amount. The Federal Election Commission was created to enforce the statute.
Question:
Did the limits placed on electoral expenditures by the Federal Election Campaign Act
of 1971, and related provisions of the Internal Revenue Code of 1954, violate the
First Amendment's freedom of speech and association clauses?
Conclusion:
In this complicated case, the Court arrived at two important conclusions. First, it held
that restrictions on individual contributions to political campaigns and candidates did
not violate the First Amendment since the limitations of the FECA enhance the
"integrity of our system of representative democracy" by guarding against
unscrupulous practices. Second, the Court found that governmental restriction of
independent expenditures in campaigns, the limitation on expenditures by
candidates from their own personal or family resources, and the limitation on total
campaign expenditures did violate the First Amendment. Since these practices do not
necessarily enhance the potential for corruption that individual contributions to
candidates do, the Court found that restricting them did not serve a government
interest great enough to warrant a curtailment on free speech and association.

Bowsher v. Synar
Facts of the Case:
Due to rising government budget deficits during the first term of the Reagan
Administration, Congress passed the Gramm-Rudman-Hollings Deficit Control Act of
1985. The act was designed to eliminate the federal budget deficit by restricting
spending during fiscal years 1986 through 1991. Under the law, if maximum
allowable deficit amounts were exceeded, automatic cuts, as requested by the
Comptroller General, would go into effect. This case was decided together with
O'Neill v. Synar and United States Senate v. Synar.
Question:
Did the functions assigned by Congress to the Comptroller General of the United
States under the Gramm-Rudman-Hollings Deficit Control Act of 1985 violate the
doctrine of separation of powers?
Conclusion:
The Court found that the duties which the Congress delegated to the Comptroller
General did violate the doctrine of separation of powers and were unconstitutional. A
two step process led Chief Justice Burger to arrive at this conclusion. First, in

25
exploring the statute defining the provisions of the Comptroller General's office
relating to the Congress's power of removal, it was clear to Burger that this officer
was subservient to the legislative branch. Second, in examining the functions that
this officer would carry out under the Deficit Control Act, Burger concluded that the
Comptroller General was being asked to execute the laws and, thus, was intruding on
the perogatives of the executive branch.

Morrison v. Olson
Facts of the Case:
The Ethics in Government Act of 1978 created a special court and empowered the
Attorney General to recommend to that court the appointment of an "independent
counsel" to investigate, and, if necessary, prosecute government officials for certain
violations of federal criminal laws.
Question:
Did the Act violate the constitutional principal of separation of powers?
Conclusion:
The Court addressed a number of constitutional issues in this case and upheld the
law. The near-unanimous Court held that the means of selecting the independent
counsel did not violate the Appointments Clause; the powers allocated to the special
court did not violate Article III; and the Act was not offensive to the separation of
powers doctrine since it did not impermissibly interfere with the functions of the
Executive Branch.

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