The Judicial Function
I.
II.
History of Judicial Review and Justicability
a. Following the American Revolution there was a great distrust of government
power and a fear of tyranny. After the Articles of Confederation were found to be
too weak, gave too much power to the states, the framers sought a balance
between not only the different levels of government (federalism), but also among
the branches of the national government (separation of powers). The framers
concentrated mostly on articles I and II, and left article III very short. It only
outlined that there would be a Supreme Court and that Congress could create
inferior courts. Therefore, the boundaries of the judicial function are created
mostly from case law and its powers are limited.
Judicial Review: Courts can interpret the laws and can void laws that conflict
with the Constitution
a. Sources of Authority:
i. Article III, §1: The judicial power of the United States shall be vested in
one supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish.
ii. Article III, §2: The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;--to all Cases
affecting Ambassadors, other public Ministers and Consuls;--to all Cases
of admiralty and maritime Jurisdiction;--to Controversies to which the
United States shall be a Party;--to Controversies between two or more
States;--between a State and Citizens of another State;--between Citizens
of different States,--between Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.
iii. Article VI: (Supremacy Clause) This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties
made or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land
b. Cases:
i. Marbury v. Madison (1803)-The question here was whether the Supreme
Court has the power to review legislative acts of Congress to determine
constitutionality.
1. General Rule: Courts interpret the laws and can void laws that
conflict with the Constitution
2. Reasoning: Since it is the Supreme Court’s role to interpret laws
and resolve conflicts between competing laws, and the
Constitution is the supreme law of the land, the Supreme Court has
the power to interpret the Constitution and decide if a law passed
by Congress conflicts with it.
ii. Ex Parte McCardle (1868)-Shows some of the limitations on judicial
review
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III.
1. General Rule: Congress can expand and limit the scope of the
Supreme Court’s appellate jurisdiction
c. Today: Supreme Court has limited power
i. Congress can expand and limit scope of SC appellate juris (Ex Parte
McCardle)
ii. Congress can create inferior courts of limited juris [art 1 sect 8 cl 9; art III
sect 1]
iii. SC can only hear issues b/f it from litigants with standing
Jurisdiction and Standing: Supreme Court has the power to review cases
initiated in State or Federal Court so long as the suit is justicable and the parties
have standing.
a. Sources of Authority:
i. Section 25 of Judiciary Act of 1789: “a final judgment or decree in any
suit, in the highest court of law or equity of a State in which a decision in a
suit could be had” could be “re-examined and reversed or affirmed in the
Supreme Court of the United States…”
ii. Article III, §2: The judicial Power shall extend to all Cases
iii. Article VI: (Supremacy Clause) This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties
made or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land
b. Cases:
i. Martin v. Hunter’s Lessee(1816)-upholds Sect 25 of Judiciary Act of 1789
1. Rule: Supreme Court has the right to review final decisions of
state courts
2. Reasoning: Although there is a system of dual sovereignty, the
states gave up some rights in the Const. anyway. If the Supreme
Court does not have the final say there would be uniformity in
federal law. The Const. was designed to operate upon the states
themselves, and not just the persons within the states—the states
are not equal sovereigns with the federal government
ii. Michigan v. Long (1983)-Independent and Adequate State Grounds
Doctrine
1. Rule: If state law does not make a “plain statement” that it is
based on independent and adequate state grounds the Supreme
Court has appellate jurisdiction to review the state court ruling
2. Reasoning: This promotes uniformity in the state’s interpretation
of federal law.
c. Today:
i. The Supreme Court steps in where:
1. there are issues of conflict between lower federal courts
2. a state strikes down a federal law
3. state case raises a constitutional question, especially if the states
are split
ii. Parties need 3 things to get into court:
1. jurisdiction
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IV.
2. right of action--legal vehicle to get into court
3. standing
a. must be the right kind of  to bring suit
b. must have sufficient stake in the controversy
Justicability (note: no one really knows what the hell this means) relates to cases
and controversies requirement. The policy is self-restraint by the judiciary
a. Sources of Authority:
i. Article III, §2: The judicial Power shall extend to all Cases…and
controversies
1. limit business of federal courts to questions presented in an
adversary context and in a form historically viewed as capable of
resolution through the judicial process
2. define the role assigned to the judiciary as part of the tripartite
federal system
b. Cases and Rules:
i. Flast v. Cohen (1968): Courts do not offer advisory opinions. Art III
requires a case or controversy
1. court can only hear cases before it and does not like to get involved
in political questions (separation of powers issue)
ii. Standing:
1. Purpose: to avoid collusive lawsuit
2. 4 requirements
a. Injury-in-fact (actual or threatened)—chain of causation
b. Injury must be traceable to action challenging
c. Must be redressable by judicial action
d.  must be in zone of interest of statute of amendment that
they are challenging (prudential)
3. (a-c) are Art III, Sect 2 “cases and controversy” requirement;
Courts created (d)
4. Conventional Standing
a. Warth v. Seldin (1975): requires only a-c; Third parties do
not have standing
5. Standing to Assert the Rights of Third Parties
a. Craig v. Boren (1976): “zone of interest” test
i. So long as  is in the “zone of interest” they can
bring suit
ii. Very rare
6. Taxpayer Standing
a. General Rule: Federal taxpayers have standing to
challenge federal statutes authorizing expenditures alleged
to violate the establishment clause
b. But, federal taxpayers do not have standing to raise other
constitutional expenditures
7. Citizenship Standing (Ex. environmental laws)
a. Lujan v. Defenders of Wildlife (Scalia)
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i. Rule: Plaintiffs with only a generally viable
grievance against the government do not state an
Art III case or controversy
ii. Reasoning: expansive standing standards interferes
with the separation of powers
b. Friends of the Earth, Inc. v. Laidlaw Environmental
Services (2000) (this case is not in the book) (Ginsburg)
i. Rule: You must have a “reasonable interest” in the
statutory violation (mostly applies to environmental
cases)
ii. Reasoning: citizen suits have long historical roots
and prior to this lower courts were requiring actual
injury to be found ( had to have cancer b/f they
could get an injunction against a polluting
company)
c. Raines v. Byrd (1997)
i. General Rule: Individual members of Congress do
not have a “sufficient personal stake” to file suits
ii. Reasoning: Court is attempting to avoid giving
Congress members to power to challenge all laws
they do not like
8. General things about standing:
a. Organizations can sue on behalf of their members so long
as the members have standing
i. Litigation is so costly that the poor can not bring
suit
ii. Aesthetic reasons can be as important as economic
reasons for standing (ex. hiking and fishing)
iii.  must specify some interest in the resource (live
near it or use it regularly)
b. States have standing to enforce its own law and advance
interests of society
c. Standing can be brought up by either party at anytime (like
SMJ)
d. Makes it more difficult to sue the US
e. Often manipulated by courts to avoid cases they do not
want to hear
iii. Mootness—The Court will not review moot cases only cases with a live
controversy
1. Definition: Standing in time
a. At the time the suit was brought  has standing but
circumstances change
b. Speaks to the “redressability” element of standing
2. Depends on the type of relief  is seeking
a. Retrospective relief—damages are always ok
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b. Prospective relief—an injunction may not be ok if  stops
doing act
3. DeFunis v. Odegaard (1974)-case was moot because  sought an
injunction to enter law school. By the time the case got to the
Court,  was beginning his 3rd year.
a. Exception: If the claim is “capable of repetition” the Court
may hear the case—not possible in this case
iv. Ripeness—The Court will only hear cases there are ripe for review
1. Opposite of Mootness
a. Case has not matured to the point of redressability and may
never reach that point
b. Protects court against giving advisory opinions
2. Depends on the type of relief  is seeking
a. Retrospective relief—damages are always ok
b. Prospective relief—an injunction may not be ok if  stops
doing act
3. City of Los Angeles v. Lyons (1983)-case not ripe where  sought
an injunction against the LAPD using chokeholds on non violent
suspects.
a. Injunction requires act will likely happen in the future
b. There must be an absolute certainty that conduct will
happen again
v. Political Question Doctrine (essentially separation of powers); The Court
will not attempt to interfere with the workings of the other 2 branches
1. policy
a. respect for other branches of gov’t
b. self-restraint
2. Elements: Baker v. Carr (1962)—Courts will not interfere where:
a. textually demonstrable constitutional commitment of the
issue to coordinate pol dept
b. or lack of judicially discoverable and manageable standards
for resolving it
c. or impossibility of deciding w/o an initial policy
determination of a kind clearly for nonjudicial discretion
d. or the impossibility of a court’s undertaking independent
resolution w/o expressing lack of respect due coordinate
branches of gov’t
e. or unusual need for unquestioning adherence to a political
decision already made
f. or potentiality of embarrassment from multifarious
pronouncements by various depts. on one question
3. Powell v. McCormack (1969)—Court will interfere where the
question is one of constitutional interpretation; here Congress was
in violation of Art. I, Sect 6 , Cl. 2 when they did not allow Powell
to sit in the 90th Congress
4. Nixon v. US (1993)(judge impeachment case)
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a. Judge facing impeachment argued that his hearing should
be in front of the entire Senate and not a subcommittee
b. Court held that case was not justicable: it violated elements
a and b
c. since the Senate has the “sole” power to try impeachments,
it must be able to function without interference in these
proceedings. Judicial review of the Senate’s trial would
introduce risks of violation of checks and balances, because
it would make the Judicial Branch the final reviewing
authority of the “important constitutional check” placed on
them by the Framers.
5. Goldwater v. Carter (1979)-here members of Congress attempted
to sue the president over his withdrawal from a treaty with Tiawan.
The court does not like to interfere with struggles between the two
political branches so they denied cert.
c. Today: All of the above policies and doctrines are in use today.
II.
The Scope of National Power
I.
I. History of National Power
A. Federalism - refers to the apportioning of power between the federal government and
the states. By the time the American Revolution had been waged and won, state
governments were fully entrenched. It was unlikely, therefore, that the states would agree
to the creation of a powerful central government at the total expense of its self-governing
authority. Granting the states specific self-governing powers and rights was not only
politically expedient, but also served the Framers' intent to limit the central government's
authority. The sharing of power between the states and the national government was one
more structural check in an elaborate governmental scheme of checks and balances.
B. Articles of Confederation, 1777
1. In order to have the colonies ban together in conducting the war with England,
the Continental Congress adopted the Articles of Confederation
2. Under the Confederation, the United States was governed by a unicameral body
of Congress however it possessed limited powers with the majority of the powers
vested in the states.
C. Constitutional Convention, 1787
1. The founding fathers were in agreement that a new federal government was
needed.
2. Ratification by the necessary nine states was completed in 1788
D. The Federalist Papers – a series of 85 letters published in the New York paper from
Oct. 1787 to April 1788.
1. written by Alexander Hamilton, John Jay and James Madison.
2. intended as a partisan debate on the side of ratification
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II.
II. Sources of National Power
A. Necessary and Proper Clause – (Article I, Section 8, Clause 18) – Congress has the
power to make all laws which shall be necessary and proper for carrying into execution
the foregoing powers, and all other powers vested by this constitution in the Government
of the United States, or in any department or officer thereof
1. McCulloch v. Maryland, 1819 – the main question here was the
constitutionality of a state law that taxed the activities of the Second Bank of the
United States, a federally chartered financial institution.
a. whether the Constitution granted Congress the power to charter the bank
– yes, the constitution does not limit the Congress to only the powers
delegated. The necessary and proper clause implies additional powers
b. “Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the latter and spirit of the
constitution are constitutional.”
c. Who decides appropriate?
2. Power to build roads and canals
a. History – at the constitutional convention, Franklin suggested that
Congress be given “a power to provide for cutting canals where deemed
necessary.” This was struck down.
b. In 1817 a bill apportioning funds for roadways was vetoed by the
president as not among the enumerated powers.
c. How does this decision differ from McCulloch? ~ appropriate?
III.
III. Federal Power under the Commerce Clause
A. Article I, Section 8 – Congress shall have the power to lay and collect taxes . . . to pay
the debts and provide for the common defense and general welfare of the United States.
B. History of the Commerce Clause
1. The Federalist No. 11 and The Federalist No. 42 – One of the principle
purposes of the Commerce Clause was to prevent individual states from erecting
trade barriers to interstate and foreign trade.
2. Although the general purpose was to give Congress the power too trump such
state imposed restraints, the language of the Commerce Clause is broad and
describes a general power over commerce among the states.
3. The clause has been interpreted as vesting Congress with the authority to adopt
legislation designed to promote an interstate economic agenda that transcends the
vision of a common market free from state imposed restraints.
4. Objections to the Commerce Clause – in 1787, there was a proposed
amendment requiring a 2/3 vote of each house for federal regulation of commerce
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as a response from fear from the South that Northern shipping might restrict free
access to foreign shipping and foreign markets
C. Gibbons v. Ogden, 1824 – established that Congress may preempt state legislation that
interferes with its exercise of authority to regulate interstate commerce.
1. Under the Commerce Clause, augmented by the Necessary and Proper Clause,
Congress may regulate any commerce that has interstate effects
2. Congress may not, rely on the commerce power to regulate matters that are
completely internal to a state
3. The problem with Gibbons v. Ogden is that it did not forsee future problems
that would arise, particularly the validity of state regulations of local maters that
were potentially subject to federal regulation under the Commerce and Necessary
and Proper Clauses
D. Cooley v. Board of Wardens – except in those areas which by their nature require a
uniform national rule, the states retained a concurrent power to regulate local activities
that affect interstate commerce until such a time as Congress may opt to regulate those
matters itself
1. This allowed for the expansive view of federal power set forth in Gibbons v.
Ogden, while preserving state authority to regulate most local activities when the
federal commerce power lay dormant
2. The Court later abandoned the concurrent power approach and divided the
activities specifically into whether they were local or interstate. – This curtailed
the Congress’ ability to regulate local economic activity through the Necessary
and Proper Clause as augmented in the Commerce Clause
a. Tenth Amendment – “The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the
States respectively or to the people”
b. the underlying assumption was that there was an enclave of activity,
internal to the states, that was virtually insulated from congressional
regulation
E. If there is a conflict between state and federal laws, federal laws will prevail.
F. New Deal Power - The Court’s hostility to the New Deal’s initial regulatory measures
to respond to the Depression inspired President Franklin Roosevelt to attempt to pack the
Court. Although this effort failed, the Court soon changed its tune and upheld Congress’
authority to enact sweeping federal regulatory legislation. Until the Court’s Lopez
decision in 1995, the Court had not struck down a federal law on the grounds that it
exceeded Congress’s commerce clause authority for nearly 60 years. During this period
the ban on racial discrimination in public accommodations in the Civil Rights Act of
1964 was upheld against commerce clause challenge in Heart of Atlanta Motel
G. Post-Depression Commerce Power [United States v. Darby] – questioned the
constitutionality of the Federal Labor Standards Act which prohibited the shipment in
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interstate commerce of certain products manufactured by employees with less than
minimum wage or who worked above the specified maximum hours.
1. While manufacture is not of itself interstate commerce, the shipment of
manufactured goods interstate is such commerce and the prohibition of such
shipment by Congress is indubitably a regulation of the commerce
2. Congress could regulate intrastate activity that had a substantial effect on
interstate commerce
3. Rejected an argument that the Tenth Amendment prevented Congress from
enacting the FLSA: “Our conclusion is unaffected by the Tenth Amendment
which provides non delegated powers to the states.” *Since the power over
commerce was surrendered to the United Sates by the Constitution, and since the
FLSA came within the scope of that power, the Tenth Amendment had no bearing
on the constitutionality of the FLSA.
E. Heart of Atlanta Motel, Inc. v. United States – a motel that serves interstate travelers
may be barred from engaging in racial discrimination that may deter persons from
traveling, thus having an effect in other states – this is considered interstate commerce
F. United States v. Lopez – To be within Congress’s power under the commerce clause, a
federal law must either regulate economic or commercial activity that can substantially
affect interstate commerce or require that the regulated activity be connected to interstate
commerce [the court held that a federal statute barring possession of a gun in a school
zone does not “substantially affect” interstate commerce, noting that there were no
congressional findings to help the Court to evaluate whether the regulated activity had
such a substantial effect.
G. Katzenbach v. McClung – the court has observed that racial unrest has a generally
depressant effect on business. This indicates a broad power in Congress, under the
commerce clause, to regulate all forms of racial discrimination, because a locally
depressed business will affect those in other states who deal with the local business. [A
restaurant that purchases supplies from other states may be barred from racial
discrimination under the commerce power, since such discrimination may effect the
quantity of the restaurant’s business]
H. Jones v. Laughlin Steel – the court warned that the scope of the interstate power ‘must
be considered in the light of our dual system of government and may not be extended so
as to embrace effects upon interstate commerce so indirect and remote that to embrace
them, in view of our complex society, would effectually obliterate the distinction between
what is national and what is local and create a completely centralized government.
I. The test today
1. The balancing test – burden of following the regulation weighed against the
substantiality if interstate commerce
2. Rational Basis test – Is there a rational basis for Congress finding that a
regulation affects interstate commerce?
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3. Dormant Commerce Clause – even is Congress has not acted, a state regulation
that burdens interstate commerce is unconstitutional
a. Milk Cases – discrimination
b. Pike v. Bruce Church – balancing test – Is it discriminatory, if so,
looks at whether local interest is pretextual or legitimate. If
legitimate, looks to whether there are less discriminatory alternatives
c. Oklahoma v. Minnows Case – Statute which banned the export of
minnows while permitting intrastate consumption thereof was
unconstitutional because non discriminatory means were available
d. If facially discriminatory, the state bears the burden of proving that the
statute is legitimate.
i. Maine’s statute banning the importation of live fish bait was
upheld because it further a legitimate state interest in protecting Maine’s
ecology by keeping out unknown parasites
IV. IV. The Taxing Power
A. Article 1 §8, clause 1 provides that Congress may “lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common defence and general
Welfare of the United States
1. This text has been interpreted broadly to vest Congress with an almost
unreviewable discretion to define the ends to which the power to tax and spend
may be applied
2. Independent Powers
a. tax subjects
b. spend money on activities that it could not regulate directly
B. Sonzinsky v. United States, 1937 – defines what constitutes a tax!
1. Does the measure operate as a tax?
2. Does it raise some revenue? – The tax will be upheld under the taxing power if
its dominant intent is to raise revenue rather than regulate or prohibit action
a. Objective Approach – its dominant intent will be fiscal, despite the
apparent regulatory purpose – even a small revenue will be sufficient
b. Subjective Approach – looks at the language and operate effect to
determine the dominant intent
i. Who enforces the tax statute
ii. How much detailed activity one must engage in to be subject to
the tax
iii. Whether intent is required
iv. Amount of the tax
V. The Spending Power – If the spending is directed toward the common defence or the general
welfare, than it falls within the scope of the Spending Power.
A. United States v. Butler – Congress entered into a Contract with farmers to pay them to
submit to a regulatory scheme designed to reduce the production of a particular crop.
1. While clearly spending, the court found this as a disguise to regulate production
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a. the program was not truly voluntary because the farmers who did not
cooperate were at an economic and therefore competitive disadvantage
B. Modern Law – the Court today is more differential toward congressional exercises of
power than it was when Butler was decided. Today, most ‘spending’ would be allowed
under the commerce clause because virtually all acts deal with interstate commerce
V.
VI. The War Power
A. Article 1 § 8 grants Congress the power to declare was, to raise and support armies, to
provide and maintain a navy, to make rules for the government and regulation of the land
and naval forces, and to provide for organizing, arming, disciplining, and calling forth the
militia
1. These powers give Congress a wide scope of authority during war
B. Woods v. Cloyd W. Miller Co. – Congressional authority under the war power may
also continue after cessation of hostilities to remedy evils created by the war
C. Post war power is limited so as to swallow up the limits on congressional power
VII. Other General Powers
A. International Agreements
1. Article 6, Supremacy Clause – any state or federal statute that conflicts with a
treaty provision is invalid
2. Missouri v. Holland – upheld a treaty over state interests
3. United States v. Belmont – The constitutional powers granted to the President
in Article II includes the power to make executive agreements (without the
consent of Congress)
B. Property Powers
1. Article IV § 3 clause 2 provides that Congress shall have the power to dispose
of and make all needful rules and regulations respecting the territory or other
property belonging to the U.S.
2. Kleppe v. New Mexico - the power to determine what is “needful” is vested in
the Congress without limitations
C. Fiscal Powers
1. Norman v. B&O Railroad – the broad and comprehensive national authority
over the subjects of revenue, finance and currency is derived from the aggregate
of the powers granted to Congress, embracing the powers to lay and collect taxes,
to borrow money, to regulate commerce with foreign nations and among the
several States, to coin money and to regulate the value thereof. [Article 1 § 8 par.
5]
D. Naturalization
1. Article 1 § 8 clause 4 provides that Congress shall have power to establish a
uniform Rule of Naturalization
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2. Fourteenth Amendment § 1 provides those naturalized the same rights as native
born citizens
E. Regulation of Aliens
1. Kleindienst v. Mandel – The authority of Congress over admission, exclusion,
and deportation of aliens is absolute. Congress may exclude aliens altogether, or
prescribe the conditions upon which they may come into or remain in the country
2. Congress may authorize the Attorney General to determine that the admission
of an alien would be prejudicial to the interests of the U.S., and without a hearing,
the government may exclude an alien from the U.S.
F. Admiralty Powers
1. Article III § 2 provides that the judicial power shall extend . . . to all cases of
admiralty and maritime jurisdiction
2. The interpretation of the admiralty clause sustained the power of Congress to
legislate with respect to events or transactions occurring on navigable waters of
the United States whether or not the particular event or transaction occurred in
interstate commerce
Government Action
Source of Power
1. Congress pays for highways
Spending Power and the Commerce Clause
2. Federal tax on airline tickets
Taxing Power and the Commerce Clause
3. Congress conditions aid to states for
medical programs on state funding of
AIDS research
Spending Power
4. Congress adopts a tax to regulate
banknotes rather than to raise revenue
Power to coin money
5. Congress prohibits hunting on federal
lands
Property Power
6. Congress bars racial discrimination at
places of public accommodation
Commerce Clause
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Constitutional Law Outline
STATE SOVEREIGNTY & FEDERAL REGULATION
10th Amendment- Protection Against the Commerce Clause?
A. TEXT
“The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the
people”
NOTE- Only powers that the States had prior to ratification are thought to be “reserved”10th Amendment is not a substantive limitation on Congress’ power to regulate private activities,
but it does substantially limit Congressional power to use its Commerce power to regulate
states.
B. HISTORY1. 1936-1976- Supreme Court did not invalidate a single federal statute on the
basis that it violated state/local gov’t sovereignty. As a result, most thought
that10th Amendment was “dead” as a check on Commerce Clause power.
a. Constitutional attacks on application of federal regulatory
statutes to state activities = uniformly rejected
2. 1976-1985- Change in Supreme Court-began to treat 10th Amendment like an
important limit on federal power
a. Amendment was held to bar fed. gov’t from doing anything that
would impair states’ ability to perform their “traditional functions”
b. Court began to look at area the Federal gov’t was trying to regulate
with the Commerce Clause to see if it was an area typically
governed by the states or by the Fed. (if not one typically governed
by states than regulation was generally okay)
3. 1985- The line of cases establishing limit on Commerce Clause power = flatly
overruled by Supreme Court- One of greatest reversals of doctrine in modern
S. Court history!
C. CASESa. Maryland v. Wirth (1968)- Example were Court maintained application of
parts of Fair Labor Standards Act dictating min. wage & overtime for employees
of public schools & hospitals (area generally thought to be under state control)
1. Dissent- (start to see some indication of change) Justice Douglas &
Stewart said that Commerce power could not be exercised in a way that
unreasonably interfered w/ state sovereign power.
a. National League of Cities v. Usery- Overturned Wirth- Supreme Court held
that 10th Amendment barred Congress from making federal min. wage &
overtime rules applicable to state/local employees
1. Reasoning- Majority conceded that min. wage/overtime rules, as
applied to state employees, clearly affected commerce. – Found that the
min. wage/ overtime provisions could be applied to private employees w/o
problem BUT when applied to state employees= problem b/c impairs the
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States’ integrity or their ability to function effectively in federal
system. Did this in 2 ways:
a. Cost- Compliance w/ provisions would have cost state & local
subdivisions big sums of $- thus impairing their ability to
function effectively
b. Removal of discretion- stripped states of discretion to decide
how they wished to allocate funds available for salaries
2. Impact- If wage/hour rules = allowed to stand, Congress would have
right to make “fundamental employment decisions” re: state employees,
thus leaving little of States separate and independent existence
3. Concurring opinion –of Justice Blackmum- said that saw majority
opinion as adopting “balancing approach” that allowed for federal
regulation where the federal interest is apparently greater & where state
compliance would be essential
c. Hotel v. Virginia Surface Mining & Reclamation Association- defined 3 requirements
needed to make a National League of Cities challenge
1. Must be showing that challenged statute regulates “states as
states”
2. Fed. Legislation must address matters that are indisputably
attributes of state sovereignty
3. Must be apparent that State compliance w/ law would impair
ability to structure integral operations in areas of traditional
governmental functions
d. Garcia v. San Antonio Metro. Transit Authority (1985)- Overturned National League
of Cities
1. Facts- Issue was whether min. wage/overtime provisions of Fair Labor
Standards Act s/ apply to locally owned & operated mass transit
authorities. (Under National League this question = “Is municipal
ownership and operation of such transit system a “traditional
governmental function”?
2. Majority Holding- Led by J. Blackmuma. said that it was difficult if not impossible to identify a way to
distinguish between those things that are “traditional
governmental functions” and those that are not. Things change
over time and thus what state should do changes over time.
b. National League approach leads to judicial subjectivityinvites an unelected judiciary to make decisions @ state
policies it favors & which it doesn’t
c. Doesn’t mean no limitations on fed. Gov’t use of powers to
impair state sovereignty- state interests are protected by
“procedural safeguards inherent in structure of federal system”not judicially created limits. (Blackmum seems to suggest that
structure of political procedure re: elected reps are enoughCongress won’t take things too far!)
3. Dissent- agreed that National League was decided correctly- said that
Majority decision here rendered 10th Amendment meaningless. J.
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Powell says Blackmum’s idea = flawed b/c elected state reps. Become
part of fed. gov’t & get involved in politics- thus no guarantee those
reps. Will or will be able to protect states’ rights once they are in
office. J O’Connor- says need some affirmative limits on
Congressional pwr. re: treading on state sovereignty b/c has already
been extended too far under Commerce Clause
4. Significance of Case- Garcia suggests that once Congress acts under
Commerce power and thus regulates a state- the fact it is a state being
regulated = no practical significance if regulation valid to apply to
private party than valid re: state!
e. New York v. United States (1992)- seems to cutback some on broad scope of Garcia
1. Facts- Addressing low-level radio active waste problem- serious issue
& 3 states are “tired” of being dumping ground for other states. 1980 Congress got
together and passed law that states could get together to develop waste sites- no real teeth
to this so in 1985- Congress said states must become responsible for their own waste
either by building own site or going in w/ other states- gave 3 “incentives”. (Most
significant = take title incentive whereby is state didn’t arrange for disposal than would
have to take title of waste)
a. N.Y. challenges “take title” provision re: 10th Amendment re:
forcing state to regulate in a particular area
2. Majority Holding- J. O’Connor- 10th Amendment = violated;
Congress can’t simply commandeer a state to enact a certain statute or tell that have
to regulate in a certain manner. 10th Amendment is “mirror image” of Commerce
Clause- If states have the power under 10th than Congress = doesn’t have.
a. NY = being forced to choose between 2 unconstitutionally
coercive regulatory practices- Could either take care of waste itself or be forced to
indemnify waste-generators against tort damages- Since both options = unconstitutional,
Congress couldn’t escape 10th Amendment problem by offering the states these 2 options
b. Congress can encourage states to do something through
“incentives” devised through Congressional
1. Spending Power- can attach conditions on receipt of
federal funds
2. Could give states choice- either regulate the area
yourself or be preempted by fed.
c. Main Problem w/ Congress forcing states = there is no
accountability on fed. Government- they make the decision but
then state gov’t has to take the heat if people don’t like it
3. Dissent- Congress is not forcing its will on states here, rather it is
responding to request by many states to come up with compromise to solve waste
disposal problem
f. Printz v. United States (1997)- again seems to cut back some on Garcia
decision
1. Facts- In 1993 Congress enacted the Brady Bill w/ purpose of
controlling flow of guns- As temporary measure, the law ordered local law enforcement
officials to conduct background checks on prospective purchasers
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a. Printz- a county sheriff in Montana- objected to the requirement &
argued under New York- Congress couldn’t force him to do them on
fed. gov’t behalf
2. Majority Holding- J. Scalia said that Federal gov’t may not compel the
States to enact or administer a federal regulatory program. Congress has
power to regulate firearms based on Lopez v. United States- so can
regulate them directly but not indirectly by using state/local
a. Reasoning- Scalia rejected dissent’s argument that there was a
difference between compelling a state to make policy and
compelling state executive branch officers to perform
ministerial tasks- Said that it is an essential attribute of the
States’ retained sovereignty that they remain independent and
autonomous w/in their proper sphere of authority- Says if
Congress is allowed to give directives to states than it is acting
as executive & thus diminishes the executive power—“blurs
the lines of each branch”- Scalia also points out that this is
another situation were federal accountability is a problem
b. Would be “nice” if Fed. offering $, but still wouldn’t allow
fed. to force states to enforce- Still have to offer states a choice
c. Doesn’t matter @ size of national interest- Scalia says have
to draw the line- Fed. can’t order state officials to enforce fed.
laws
3. Dissent- Repeat opinion of Garcia- Idea that there are sometimes
national interests that may compel using state/local gov’ta. Point out the federal commerce power gave Congress authority
to regulate handguns-Then concluded, that this being true the necessary &
proper clause gave Congress the right to implement its regulation by
temp. Requiring local officers to perform tasks- Especially true since
Congress could have required private citizens to help with tasks
b. Result of Scalia’s fine line = may have to enlarge Federal
bureaucracy to enforce statute thus probably impeding states even more
D. LAW TODAYa. Although it seems that 10th Amendment places few practical
limitations on Congressional exercise of power under the Commerce
Clause
b. Congress may not:
(1) Compel a state to enact or enforce a particular law or
type of law
(2) Compel state/local officials to perform federally
specified administrative tasks
c. Significance of New York & Printz(1) Fits in w/ Garcia- Garcia seems to apply to generally
applicable federal lawmaking- 10th Amendment
doesn’t entitle state operations to be exempt just b/c it’s
a state- everyone is being regulated! BUT federal gov’t
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can’t force state/local to enact legislation or force
state/local officials to perform particular gov’t functions
b/c not part of generally applicable federal scheme
but rather is directed at state’s basic exercise of
sovereignty
(2) HOWEVER- if state chooses to conduct certain
activities themselves- Congress may regulate how they
do so b/c Congress isn’t telling state how to regulate its
citizens but rather is regulating state as a commercial
actor
c. Hypothetical #1- proposed after N.Y. v. U.S. – Bush tribunal- idea
that anyone who has person involved in Sept. 11- can be forced to turn
over to Sec. Of Defense- Suppose N.Y. state has someone, can fed.
Government makes them turn the person over? Violation of 10th?
Criminal laws are typically state governed- Certainly for fed. Government
to have ability to trump states there must have been some federal crime
committed- Could fed. gov’t require that state and local authorities interview all
students in their areas who are in U.S. on visas? – If offered money could
Congress do it under spending power? – under NY or Printz could make
argument that provision is unconstitutional
-Could you make argument that provision comes under war powers?
11th Amendment
A. TEXT
“ The Judicial Power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State”
NOTE- On its face, 11th Amendment seems to say that one state can’t be sued in federal court by
a citizen of a different state, or by a foreigner
B. HISTORY
1. Chisholm v. Georgia (1793)- P filed suit against GA to collect debt- Supreme
Court said there was nothing in Constitution to prevent this action- 11th
Amendment passed immediately afterwards to overturn Court decision
2. Idea deepens in Hans. v. Louisiana (1890) – Citizen of LA sues the state- LA
says it has “sovereign immunity”- Supreme Court says that the suit is barred on
11th Amendment, which indicates that states have sovereign immunity from
certain types of suits (even though there is no wording in there re: citizen suing
state)- Only way federal court can hear case against state is if state waives
sovereign immunity
3. State can waive immunity by:
a. State consent
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b. Congress has power to waive state immunity when it passes certain
types of legislation-BUT must unequivocally state that immunity is
waived
4. Ex Parte Young (1908)- Minn. State statute alleged to violate 14th
Amendment- suit brought against state official who was trying to enforceHolding- When state official is acting unconstitutionally (violating a federal
right) – they are acting outside of their official capacity and thus not covered by
immunity
5. Edelman v. Jordan (1974)- Suit @ welfare payments = illegally w/held Court
makes distinction re: Ex Parte Young- Says that Young idea that can sue state
officials but problem is that if allowed to sue for damages would bankrupt statesThus, can only sue for prospective injunctive relief (re: get officials to abide by
law in future)- NOT retroactive monetary damages
6. Fitzpatrick- said Congress had the right to waive immunity when passed
legislation re: due process clause (14th)
C. CASES
1. Pennhurst State School & Hospital v. Halderman (1984)a. Facts- District Court ordered state institute to rectify violations of state
law
b. Holding- Supreme Court has that can’t do this b/c 11th protects state
from suits in federal court re: violations of state law (sometimes can be heard
coupled with federal crime coming out of same facts). Doesn’t matter if state sued
on state or federal law- state = still immune unless consents or Congress waived
immunity
1. Ex Parte Young doesn’t apply- when dealing with violation of
state laws- this deals with suing state officials but the issue
here deals with state itself so can’t use this to get around
restriction.
2. Edelman doesn’t apply- case said could get prospective
injunctive relief re: state officials but not when suit is based on
violations of state law
3. DOES NOT overrule Fitzpatrick- Scalia distinguishes by
saying there Congress waived re: 14th Amendment not Commerce
Clause- 14th Amendment was enacted after 11th Amendment thus
indicating that suppose to impose some limit on state power. BUT
Commerce Clause was enacted before 11th Amendment so could
not have been intended to be a limit on state power
2. Seminole Tribe of Florida v. Florida (1996)a. Facts- Congress passed statute (IGRA) governing parts of gambling
operations being run by Indian tribes. IGRA said that when a state allows nonIndian gambling than it must also negotiate in good-faith w/ any local tribe re: an
agreement to let run comparable gambling operations If tribe believed that not
operating in good faith- could sue state in federal court
b. Holding- Statute violates 11th Amendment- Said even when
Constitution gives Congress complete law making authority over an area-11th
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restricts judicial power under Article III & Article I can’t be used to circumvent
these Constitutional limits
1. Reasoning- 11th embodies concepts of state sovereignty that
limits Article III jurisdiction of federal courts & Congress can’t expand those
limits b/c wants to
2. Even though suit involved Congressional power based on
Indian Commerce Clause- decision = applies to all sources of Congressional
power w/ exception of post-civil war amendments
c. Dissent- 2 ideas
1. Limited view of Amendment- all drafters of 11th meant to do
was limited suits re: diversity
2. Destructive Ability to protect federal rights- Prevents
Congress from providing federal forum for actions against States (re: copyright,
patent, bankruptcy, environmental law)
3. Bottom line- Congress doesn’t have power to waive state
immunity based on Commerce Clause or Indian Commerce Clause
3. Alden v. Maine (1999)a. Facts- Congress had said that Fair Labor Standards Act (min
wage/overtime) applies to states as employers as well as private employers- Congress also said
that employees could bring FLSA suits against state in state’s own courts. In this case, worker in
Maine did that
b. Holding- Congress has no authority to force Maine courts to hear
worker’s suits, even though suit was based on federal right that Congress did have a right to
confer on workers.
1. Rationale-- state immunity from private suit’s for money
damages in its own courts= fundamental aspect of
sovereignty (of 10th Amendment) that states enjoyed before
Constitution was ratified and still enjoy today
2. Similar to Seminole- same thought re: Congress’s ability to
use Commerce Clause authority to force states to defend in
federal court applies to state courts
c. Dissent- disagreed with majority contention that state’s had immunity
from suit in own courts prior to adoption of Constitution & that this
immunity carried forward when Constitution was enacted- Also believe
sovereign immunity could not apply where source of right asserted =
federal and not state
d. Impact- seems to mean that states have full sovereign immunity from
any private suit in the state’s own courts seeking damages for the state’s
violation of federal law- States seem to have large area where they are
insulated from Congressional attempts to give private individuals damages
remedies re: violations of federal rights
D. LAW TODAY1. Over years Supreme Court has interpreted 11th Amendment more broadly than just
restricting who can sue state in federal court. Here are some ways scope has been
interpreted:
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a. Suits by citizens of defendant state- Amendment interpreted as barring suits
by citizens against own state
b. Suits involving Federal question- interpreted to bar suits by private citizens
against states, whether based on diversity, alienage, or federal question
c. Constitutional embodiment of sovereign immunity-broad reading of
Amendment re: that states can’t be sued by citizens even in case raising
federal question- is held to be a constitutional limitation on federal judicial
power- not just broad interpretation thus Congress can’t overrule this broad
reading (Seminole Tribe)
d. Suits in equity- Amendment applies to both suits in law & in equity- can’t
sue to enjoin or order a state to do something (But can sue a state official in
private capacity re: enjoining or ordering)
e. Suit for injunction against violation of state law- Amendment bars
injunctions prohibiting state officials from violating state law (Pennhurst
State School Hospital)
2. Here are some things that are EXCLUDED from coverage by 11th:
a. Suits against officials for injunctions- doesn’t prevent suits against private
officials where relief sought = injunction against a violation of federal law
(Ex Parte Young)
b. Suits against officials for money damages- doesn’t bar suits against state
officials for money damages—as long as damages are to be paid out of
officials own pockets- Suit is barred where would lead to state being ordered
to pay damages out of its pocket!! (even if suit is nominally charged against
official rather than state)
c. Suits by federal government against state-are not barred
d. Suits against cities- are not barred (or against other political subdivisions)
e. State agencies and other entities- case law is unclear & inconsistent on
when Amendment bars these
f. Suits by one state against another- not barred as long as plaintiff state is
suing for itself and not merely to protect private interests of individual citizens
g. Suits in State Court- Amendment only applies to federal court!!- Does not
prevent private citizen from suing in state court even re: a federal right- (of
course, state court must still have jurisdiction over the claim)
h. So long as case started in state court not barred from Supreme Court
appellate jurisdiction
i. Waiver by state- protections of 11th can be waived
j. Suits under post-Civil War Amendments-If Congress passed law pursuant
to power to enforce post-civil war amendments-& that statute grants private
citizen right to sue in federal court- will trump 11th bar
1. Outside Post-Civil War Amendments- Congress may not abrogate 11th
(Seminole Tribe)
THE DORMANT COMMERCE CLAUSE
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A. TEXT
B. HISTORY
A. General- Commerce Clause is the one Constitutional grant that has given rise
to substantial litigation re: states’ powers in Dormant Commerce Clause
cases
B. Main Issue- “ Does the mere fact that the Const. gives Congress the power to
regulate interstate commerce prevent a state from taking a particular action
which affects interstate commerce, assuming Congress has not actually
exercised its power in the subject area in question?” NOTE- there is no clear
cut answer to this question
C. Traditional Approach- Supreme Court adopted middle ground between
granting states complete right to regulate were Congress has not chosen to act
AND allowing Congress to have exclusive control over power to regulate
interstate commerce--- This calls for:
1. Weighing state interests in regulating local affairs against
national interest in uniformity & integrated national economy
2. Because limitations imposed by DCC are implicit instead of
explicitly- Congress has said limitations on state commerce
related conduct imposed by Court may always be reversed by
Congress!
3. Supreme Court essentially has to interpret Congress’ silence on a
matter- deference is given to the ideals of Commerce clause
D. Gibbons v. Odgen (1824)- first case S. Court interpreted Congressional
Silence
1. Facts- NY granted exclusive steamboat operating license to OgdenGibbons got federal license to operate ship form NY to NJ but was
enjoined from doing so by Ogden’s monopoly. Thus, Gibbons argued this
monopoly violated commerce power
2. Holding- NY monopoly was invalid b/c conflicted w/ federal
commerce power- there are clearly some things that states can’t do b/c
would interfere with interstate commerce
a. Rationale- 2 fold
1. Meaning of congressional silence- J. Marshall said that states
could regulate commerce in a particular way if there was no
actual conflict between state regulation & act of Congress
2. Actual Conflict- existed here- federal licensing law and state
monopoly = conflicted- BUT under Supremacy Clause- federal
law trumps state law
E. Cooley v. Board of Wardens of the Port of Philadelphia (1851)- Court up
until this time had been making distinction on state regulation re: whether
dealt with interstate commerce or policy power—HERE- Court introduced
new way- whether subject matter being regulated was “local” or
“national”
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1. Holding- Court affirmed PA law that required ships that entered/left
port of Philly to hire local pilot- Thus saying, there are some state
regulations that affect interstate commerce that are permissible.
a. States can regulate- those areas = such local nature that
require different treatment from state to state.
b. States cannot regulate- those areas that require uniform
national treatment
2. Problems with this decisiona. Not easy to distinguish between those “subjects” that require
uniform nation treatment & those that need diverse local reg.
b. “Cooley test” doesn’t consider how extensively states regulation
impacted interstate commerce (only looked at subject matter)
3. To correct these problems- Courts began to look closely at impactdirect v. indirect impact on interstate commerce (direct impact=no good)
C. CASES- (Organized by applicable subject matter)
Taxation
A. General- fact that state tax burdens IC doesn’t necc. mean its
unconstitutional To determine whether tax is constitutional1. State taxation is most likely to violate Dormant Commerce
Clause- when a state tries to tax operations of business that
operates in more than 1 state
2. For multi-state company to successful challenge will have to
show (1) that company’s business activity doesn’t have
sufficient connection w/ taxing state (2) that tax discrim.
Against IC (3) tax has led to an unfair cumulative burden
3. Min. Contacts- As result of 14th Amendment- non domiciliary
company may not be taxed at all unless there are min.
contacts between company and state- threshold matter that
must be resolved before examining particular tax is equitable
B. Questions to Ask:
1. Is tax discriminatory? (can’t use one rate for local & higher
rate for interstate commerce if no difference between 2 classes)
2. Is activity being taxed sufficiently related to taxing state
3. Is the tax fairly related to benefits?
4. Is the tax fairly apportioned in light of local contracts/benefits
received by taxpayer? (is there an unfair burden?)
Complete Auto Transit, Inc. v. Brady
Note- Under this test a tax = fine, if (1) applied to activity having “substantial
nexus” w/ taxing state (2) is fairly apportioned (3) doesn’t discriminate against interstate
commerce (4) is related to services provided by taxing state
C. No Discrimination-state may not tax in a way that discriminates
against IC
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1. Facially discriminatory statutes- sometimes taxing statute can
be seen on its face as discriminatory
2. Burdensome but facially neutral statutes- may appear neutral
but still place a greater burden on interstate businesses than on intrastate ones—thus it will be
stricken
D. Cumulative burdens- even non-discrim. Tax may violate Commerce
Clause if taxpaying company can show that taxing scheme would expose it to unfair cumulative
taxation and thus unduly burden IC
1. “Substantial nexus” requirement- to prevent problem of
thousands of jurisdictions all taxing same interstate business—there must be a nexus between
taxpayer and jurisdiction imposing the tax
Discrimination Against Interstate Commerce
A. General Test- to decided validity of state regulation re: IC
1. Regulation must pursue legitimate state end
2. Regulation must be rationally related to legitimate end
3. Regulatory burden imposed by state on IC & any discrimination on
IC, must be outweighed by state’s interest in enforcing regulation
NOTE re: Test- Look for discrim. B-4 balancing!
1. If statute = discrim. On face- almost per se invalid
2. If not discrim. On face but creates substantial burden- than Court
will balance benefit w/ burden- If “disguised” discrimination- than
statute can be struck down unless state’s interest is legitimate &
benefit must be > burden
B. New Energy Co. of Indiana v. Limbach (1988)- the overall ruling in this case
is that the statute in question (dealing with tax credits offered on ethanol) violates the
Dormant Commerce Clause b/c it discriminates against IC- on the basis that Ohio’s
justification re: health & commerce- are no more than implausible speculation & thus
can’t justify discrimination
1. Important Point- Court here does say that a State can validate a
statute that discriminates against IC by showing that a legitimate local
purpose exists for the statute that can’t be achieved through
nondiscriminatory alternatives
2. High Standard for Justification- there are many cases in this area but
most are struck downImplied Restrictions of Commerce Clause- Transportation
A. General- many of early cases re: transportation regulation = not good law now b/c of
national highway laws- Initially state highways were maintained by State so had more room to
regulateB. Buck v. Kuykendall- (1925)- WA. Statute required all common carriers on highways
to get certificates- Holding – Court struck down statute on basis that it discriminated against
who could use highways- State tried to say statute was to preserve highways but Court found it
really was enacted to prohibited competition
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C. California v. Thompson (1941)- CA. statute required agents selling transportation on
public highways to get license & post bond- Holding- Court upheld statute b/c said on its face it
appeared to be measure to protect members of public who want to get car who are unable to
protect themselves- Thus, presented idea that states can uses licenses as long as they apply to
everyone and have legitimate justification (state not using power to try and prevent movement of
traffic in CA)
D. South Carolina State Highway Dept. v. Barnwell Brothers (1938)- S.C. Statute
prohibited use on state highways of trucks longer than 90 inches & wt. Of 20,000 lbs- Federal
district court said statute = violation b/c substantial burden on IC b/c 85-90% of trucks in IC
exceeded limits1. Supreme Court Reversed & Upheld Statute- on basis that regulation
applies to both interstate and intrastate trucks
2. “Local Concern”- Court resorted to Cooley idea that highways are a
particular local concern
E. Southern Pacific Co. v. Arizona (1945)- Statute prohibited size of trains & authorized
$ penalty for violation- Presents what happens when regulations of 2+ states place a large
cumulative burden on IC (not actual conflict necc.)
1. Holding- Supreme Court struck down on basis that there is much more
national interest w/ trains than highways- Many states had different train lengths &
while not contradictory b/c RR could simply follow shortest length & operate in all
states—BUT national compliance w/ rule of most restrictive state = violation b/c gives
most restrictive state authority beyond its borders!
2. Dissent- says that situation is similar to trucks in South Carolina and thus state
s/be able to regulate size of train
F. Bibb v. Navajo Freight Lines, Inc. (1959)- More like what you would see todayIllinois statute required use of contoured mud flap on trucks & trailers. Statute made illegal use
of mud flap in 45states & Arkansas specifically required straight mud flap so truck would not be
able to go between Arkansas & Illinois- Presents what happens when actual conflict between
regulations of 2+ states
1. Holding- Supreme Court held statute invalid on basis unduly burdensome on
IC- no safety reason to justify Illinois mud flap2. Note- typically when have 2+ state regulations that conflict- Court is likely to
strike down one- based on need for national uniformity (outweighs states
interest in regulating highways, railroads, etc.)
G. Kassel v. Consolidated Freightways Corp. (1981)- Iowa statute prohibiting 65ft. long
trucks- would not allow double trucks- one of the only states that didn’t allow- So companies
shipping through Iowa would either have to use more trucks or divert @ state
1. Holding- J. Powell -Statute = invalid- seems to rely a great deal on govenor’s
message =true reason for regulation is different than stated
2. State tried to argue that it was a safety measure- weak argument b/c allowed
broader cities to adopt regulation of other states & studies had shown that 65
ft. trucks did not pose bigger safety hazard.
3. Concurring- J. Brennan & Marshall- agree to strike down but don’t like
Court 2nd guessing legislature- instead say purpose of reg. = impermissible
4. Dissent- J. Rehnquist & Stevens- pt. Out there are 17 other states that don’t
allow 65ft. doubles- Says no Const. reason why state can’t reg. this area
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INSULATING IN-STATE BUSINESS FROM OUT-OF-STATE COMPETITION
A. General- State’s are allowed to impose quarantine & inspection laws unless Congress
steps in-) But can’t use them to protect in-state “resources” & discriminate against out-of-stateIf state is in good faith pursuing health/safety objective- Court will generally balance benefit /
burden (will consider extent of discrim. Effect & if there are alternatives
B. Baldwin v. G.A.F. Seelig, Inc. (1935)- NY trying to set prices to be paid by NY milk
dealers to NY milk producers- Also prohibited retails sales in NY of out-of-state milk if had been
bought at lower price than set for NY- Purpose of- to make sure NY farmers earned enough $
1. Holding- S. Court said unconst. b/c set barrier to traffic between states –
discriminatory on face- clearly designed to promote in-staters
2. Rationale- If NY was allowed to promote econ. welfare of farmers in this
way than other states would want to do- result in econ. rivalry, which would
go against national unity sought in Constitution.
C. Dean Milk Co. v. City of Madison, Wis. (1951)- Statute here made unlawful to sell
milk that no processed & bottled w/in 5 miles of city- Presents idea that even when
legitimate health interest is purpose of reg. Court will still balance interest and consider if
there is another alternative1. City argued- statute not discriminatory b/c applied to in-state producers as
well & main purpose = to protect against adulterated milk
2. Holding- Supreme Court said unconstitutional3. Rationale- might have been motivated by bona fide reason- but still
discriminated against IC- Big point- reasonable non-discriminatory
alternatives existed
4. Dissent-said good faith effort s/not be struck down b/c Court thinks there’s a
better way
D. Minnesota v. Clover Leaf Creamery Co. (1981)- statute prohibited retail sale of milk
in plastic containers but allowed other types of containers to be used- State says
environmental reason for statute
1. Holding- Supreme Court overturns state courts striking down of statute
2. Rationale- Statute is not discriminatory on its face b/c applies to all in and out
of staters- Court here accepts local interest as legitimate- Acknowledges that
statute has slightly more benefit to in-state but relatively slight- Ultimately,
statute doesn’t stop milk from coming in and out of state
E. Exxon v. Maryland (1978)- MD. Passed law prohibiting oil producers/retailers from
operating gas stations in MD- Reason = producers/retailers had received special treatment
during oil shortage- There are no producers/ retailers in MD, so impact = entirely on out
of staters- (and most of those helped = in-staters)- Statute attacked for discrimination,
unduly burdensome, & b/c nationwide nature of oil marketing only fed. could reg.
1. Holding- Supreme Court said = valid2. Rationale- (1) No discrimination- b/c didn’t discrim. Against all interstate
commerce (2) Not unduly burdensome- might cause sales volumes to shift but
not problem b/c Commerce Clause protects interstate markets NOT
particular interstate firms… (3) Not preempted b/c Dormant Commerce
Clause may only preempt when lack of national uniformity would hurt flow
of goods- but not problem here
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E. West Lynn Creamery v. Healy (1994) – Mass. Law imposes assessment on all fluid
milk sold to Mass. retailers- (@ 2/3 comes from out-state) & then $ is given to Mass.
dairy farmers1. Holding- Statute = void b/c discriminates against IC
2. Refers to New Energy case = re: if state chooses to provide subsidy to area
than can do that but can’t impose different taxes
3. Rationale- Statute on its face = not discriminatory b/c applies to all BUT then
$ only goes to Mass. farmers- $$ allows higher cost producers (local) to
compete w/ lower cost out-state producers- Seems to suggest if subsidy came
from general funds than would be fine
4. No tax – subsidy combo- tax by itself = fine, subsidy by itself = fine but
together become discriminatory tax
REQUIRING BUISNESS OPERATIONS TO BE PERFORMED IN HOME STATE
A. General- local regulations that require things to be done in state before product can be
shipped out of state- will usually be struck down (Minnesota v. Barber & Foster-Fountain v.
Haydel)
B. Pike v. Bruce Church, Inc. (1970) –Arizona statute requires that Arizona cantaloupes
be packed in state- Regulation = applied to CA. company shipping uncrated cantaloupes to its
CA plant- Purpose of- to enhance reputation of (and demand for) Arizona cantaloupes
1. Holding- Invalid- State’s interest to enhance reputation of cantaloupes is
outweighed by national interest in unencumbered commerce (per se illegal)
C. C & A Carbone v. Town of Clarkstown (1994)- statute for so-called overflow
ordinance- requires all waste produced in state to be processed at designated transfer
center before leaving locality
1.Holding- Invalid- Court here doesn’t even engage in balancing test b/c says the
statute is invalid b/c prohibits out-state producers from competing for disposal of
garbage- Purpose of statute = to “hoard trash processing jobs” w/in town- Didn’t matter
that lots of in-state processors were also deprived of ability
2. Concurring- O’Connor says- problem isn’t discrimination but rather excessive
burden- Not facially discriminatory but lots of cities are adopting these flow control
ordinances thus causing substantial interstate commerce burden
PRESERVING RESOURCES FOR IN-STATE CONSUMPTION
A. General –deals w/ deciding what is legitimate protection of resources & what is
disguised protectionist reg?
B. Pennsylvania v. West Virginia (1923)- W. VA passed law that said that every
company transporting gas produced in state must take care of domestic/industrial needs of state
first- Natural gas = resource in W. VA- State argued that it is a legitimate resource that the state
is running out of
1. Holding- invalid b/c discriminates against IC- Doesn’t mean that state can’t
protect resources- just have to do it in away that doesn’t interfere w/ IC (i.e. ban taking all
together or impose large fine on it)
C. H.P. Hood & Sons v. DuMond (1949)- NY statute designed to preserve NY ability to
preserve competition of milk industries in state- As result, NY denies Mass. milk distributor a
license to open an additional milk receiving station in NY State argues another station will
26
divert more NY milk to Mass. consumers & thus increase costs and maybe result in shortage to
Nyers.
1. Holding- invalid- b/c what NY is seeking here is econ. advantage—not really
concerned about health/safety of public-Econ. security may not be pursued
by discriminating against other states- If NY = allowed to do than other
states will want to do too!
2. Dissent- concerned that decision will insulate any local industry from
regulation b/c they can simply say they are going to do IC business
D. Philadelphia v. New Jersey (1978)- Statute prohibits importation of solid or liquid
waste into New Jersey on basis that state is running out of landfill space (PA & NY =
using NJ sites)
1. Holding-invalid- b/c “basically a protectionist measure” rather than a way to
resolve a legitimate local concern – Statute imposes on out-of-state interest the full
burden of conserving the State’s remaining space (might make a difference if state’s own
waste was included)
a. “evil of protectionism can reside in legislative means, as well as
legislative ends”- Purpose of statute can be legitimate and the statute can still be
discriminatory
b. Supreme Court did declare waste= article of commerce
c. Quarantine power of states- Attempt to distinguish- quarantine laws
ban importation of material that is hazardous at the moment of importation- Although
quarantine laws are typically upheld- can’t be used by state to try and “legitimize”
protectionist measure
E. Chemical Waste Mgmt. v. Hunt- Court struck down Alabama law trying to restrict
waste entering state by charging higher fees BUT said if state could show that b/c of
nature of waste coming from out of state it cost more to process than increased fees
might be okay
F. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources- Statute
prevented each county from accepting waste from outside county unless explicitly chose
to accept- One county didn’t adopt plan to allow out of county waste & then denied P’s
application to import out-state waste into county State argued that statute = even
handed b/c applies to in & out
1. Holding- Court says invalid- b/c if all localities decided not to allow waste
from outside state than would have Philly v. NJ situation
2. Dissent- says this is one of most responsible actions taken by a state & by
striking it down, Court is providing disincentive to states to take responsibility
for waste
G. Hughes v. Oklahoma (1979)- OK bars export of sale of minnows that are taken from
natural H2O of state
1. Holding- Violates Commerce Clause- Statute = discriminates on its faceThus, OK must justify it under balancing test- & must show that non-discrim.
Alternatives are not adequate to preserve state interest- Here- there were
other alternatives that could have been used to accomplish purpose (i.e. set
limit on # that could be taken by any dealer)
2. Overrules out of date Geer doctrine
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H. Sporhase v. Nebraska (1982)- Seems to suggest if have important resource that is
being depleted & state wants to restrict resource from going to another state- can do just
not in discriminatory way re: reciprocity clause
I. Maine v. Taylor (1986)- Seems to suggest if have a real health problem than can ban
import if can show no discriminatory means1. Holding- Court here says that not enough that there might be nondiscriminatory means in future—not enough to strike down regulation now
J. Camp NewFound v. Town of Harrison (1997)- tax exemption for charitable business
but not those doing business w/ out of staters
1. Important- J. Thomas – says junk Commerce Clause and bring back
export/import clause- Concern is that in many cases Court is acting as legislature by saying
what’s good/bad for IC- 2nd guessing legislature of state- Brings up? of who should be deciding
facility in these situations?
PRESERVING STATE-OWNED RESOURCES FOR IN STATE USE
D. LAW TODAY
B. General- use of direct v. indirect = not much better than “effect on commerce
v. police powers” So S. Court developed more complex tests
C. Modern Test Requirements1. Regulation must pursue legitimate state end
2. Regulation must be rationally related to legitimate end
3. Regulatory burden imposed by state on IC & any discrimination on
IC, must be outweighed by state’s interest in enforcing regulation
D. Application of Test1. Legitimate state ends= Court distinguishes between reg. For
health/safety (more likely to allow- similar idea to exercise of police
power) & those for economic benefit (protect of state own econ.
interest = not considered legit.)
2. Rational means to end- Court not substituting its thoughts for
legislature- all that needed is mere “rational relation”- NOT required
that means be the best way to achieve ends
a. Deference given to any facts found by state legislature
3. Balancing test- skewed towards finding constitutionality- Thus, were
reg. Is non –discrim. There is a presump. Of validity BUT this can be
overcome by showing that national interest in uniformity or in free
commerce = outweighs
a. Sometimes when doing balancing test- Court will consider whether there is another less
burdensome way to achieve the state’s objective (If so might find against state reg.) Dean Milk
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VI.
The Dormant Commerce Clause: Preserving State Owned Resources
A. Background
i. Problem:
1. the law is confused in this area
2. no real firm guidelines the courts are trying to balance two things
a. First: restrictions on trade end up hurting consumers by
making products cost, negatively effect the national
economy
i. Thus, courts scrutinize regulations and even if
regulations are not on its face discriminatory, they
can still be struck down by courts if it has an effect
on trade
b. Second: the goals of federalism
i. states have the power to regulate within their
boarders for their own benefit
ii. states have always been able to use their police
power to regulate safety or morals (as long as they
don’t go too far)
ii. The power to regulate commerce is in a limited way a shared power
between the state and federal government
1. But if the interest is national or would place a burden on national
concerns, the states may not regulate.
a. Discrimination against interstate commerce is
unconstitutional because it burdens national interest
2. Why? Policy
a. This policy keeps competition fair. The welfare of the
country depends on each state having a strong economy.
Competition between states would be counter-productive to
this goal.
b. the political process would not be an effective tool to
encourage fair competition, the courts are needed.
i. you are only a citizen of one state, the benefits are
only for the state, the burdens are on all other states
ii. the people who are negatively affected by
discriminatory practices cannot use the political
process of the state to correct it because they are not
represented in that state’s legislature.
iii. The Cooley Doctrine (1851)
Devised a test,
When the subjects of commerce regulation are
national in nature, (require a uniform system or
plan of regulation) they are not amenable to
state regulation.
29
statute must treat inter and intra state commerce the
same, unless it has a legitimate state interest
therefore: if a regulation does not require
a uniform national rule and is of local
concern it would be upheld
the test is hard to apply: it focuses too much on the subject
of regulation and is its use is limited today
iv. Direct v. Indirect Test
1. If congress has not regulated, but if the state regulation interferes
with interstate commerce it could still be unconstitutional.
a. indirect state regulation of interstate commerce is okay, but
direct, is not ok
2. Test does not work
v. Modern Test: Balancing
1. this test balancing the state’s interest in the regulation against its
burden on interstate commerce.
2. To apply ask two questions:
a. Does the regulation discriminate on its face?
i. is the discrimination purposeful?
1. if so it is usually held to be per se invalid
b. If not, Maine v. Taylor test: do the burdens on interstate
commerce outweigh the state’s interest in the regulation?
i. the state statute/ regulation must be even handed
ii. it must have legitimate local purpose
iii. the purpose must not be able to be served as well by
another means.
vi. Various areas of regulation
1. the basic test is the same in all areas of state regulation of
resources using the commerce clause, however, the state’s interests
in regulating certain areas are given more weight than others and
may alter the outcome of the balancing test.
B. Cases:
i. Background: a state may regulate incoming and outgoing commerce in
goods pursuant to its interest in protecting the health and safety of its
citizens, including the economic well being, but it cannot hoard resources
or have protectionist laws. Even if the state interests are legit, they cannot
excessively burden interstate commerce.
ii. Illustration:
1. how does the fact that the resources the state seeks to regulate are
found inside the state’s boarders effect the application of the
balancing test?
30
2. (under Cooley doesn’t the state have the authority to regulate
inside its boarders?)
3. Largely, the cases in this section examine the first prong of the
modern test and tests how much weight a state interest carries
when compared with the strict scrutiny of facial discrimination
(basically, few survive)
a. the regulation does facially impose burdens on out of state
interests that it does not impose on in-state interest.
b. the court then balances the state’s interest against the
burden on interstate commerce.
iii. Pennsylvania v. West Virginia (1923): natural gas
1. Facts: WV is a producer of natural gas. WV passed a statute
requiring natural gas producers to satisfy the needs of WV resident
before it could ship the natural gas out of state.
2. Held applying test:
a. it is facially discriminatory
b. improper b/c it burdens interstate commerce
3. You could put limits on use as long as it is applied uniformly
4. if the state owned the resource could change analysis: could
charge more for out of state users
iv. H.P. Hood & Sons v. Du Mond (1949: limits/ excludes incoming trade:
milk
1. Facts: the DF (NY) says if he is required to obtain a license, to file
a bond for the protection of producers, and to pay the farmers the
prices prescribed by the Bond
2. Held: the DF says if he is required to obtain a license, to file a
bond for the protection of producers, and to pay the farmers the
prices prescribed by the Bond
a. facially discriminates
b. burdens interstate commerce
v. Philadelphia v. New Jersey (1978) Waste
1. Waste is a article of commerce
2. Issue: whether a NJ law that limits incoming solid or liquid waste
which originates outside the state in order to conserve landfill
space within the state is constitutional under the commerce clause?
3. Applying the test:
a. the law discriminates on its face:
i. the law does what is off limits to interstate
commerce; it isolates itself from a problem
common to many and it discriminates against
articles of commerce coming from outside the state
when there is no reason apart from their origin to
treat them differently
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b. the court does not really care about the balancing part of
the test
i. the court says who cares what the “real” purposes,
the purposes could be legitimate, b/c it violates the
constitution on its face
4. dissent, Renquist:
a. the law was enacted to ensure the health of state’s
residents, it is no different than quarantine laws which
permit burdens to interstate commerce for the purpose of
ensuring the health of its residents
vi. Hughes v. Oklahoma (1979): minnows
1. OK wants to limit the out of sale of minnows from in state to
preserve the resource. (In the past this was defended using a
property argument in that the states owns the minnows.)
2. Applying the test:
a. this discriminates on its face
b. Even though this serves a legitimate state interest, it still
fails the test b/c there is a nondiscriminatory means to
achieve the same goal.
vii. New England Power Co. v. New Hampshire (1982)
1. Facts: NH law requiring New England power to sell locally
produced power solely within the state.
2. Held unconstitutional, applying test:
a. this law discriminates on its face
i. in-state consumers cannot get preferential treatment
over out-of-state consumers for privately owned
resources.
ii. this was simply protectionist the Commerce Clause
bans.
iii. Federal Power Act did not permit such a ban
b. didn’t need to really examine the second prong.
viii. Sporhase v. Nebraska (1982): ground water
1. Facts: NE permit system limiting out-of state export of ground
water to states granting reciprocity for sale of its waters in NE.
2. Held unconstitutional, applying test:
a. was facially discriminatory
b. But, for the second prong
i. although, it was an important and legitimate state
interest, the state failed to show that the reciprocity
requirement was narrowly tailored to this end.
ix. Maine v. Taylor (1986) ban on baitfish
32
1. Facts: ME criminal statute banning the importation of baitfish that
may be diseased to keep them from contaminating the local
resources
2. Held constitutional, applying test:
a. was facially discriminatory
b. But, the state interest was legitimate and there was not
other way at this time to protect the local resources
VII. The Dormant Commerce Clause: State Owned Resources
A. Introduction
i. This section uses the same balancing test as above. It looks into the way
the analysis changes when the state owns the resources it trying to
regulate.
ii. Most of these cases look at the second prong of the analysis, that the
statutes. regulations are not discriminatory on their face, but may because
of market conditions, be unconstitutional because they may impact more
severely on interstate commerce than on local commerce.
iii. State as market participant Doctrine:
1. is an important concept when looking at state owned resources.
a. when the state acts, not as a regulator but as a participant in
the marketplace, it is not subject to the ordinary constraints
of the Commerce Clause. The Dormant Commerce Clause
does not prohibit the state from discriminating on favor of
its own citizens.
b. subsides when funded from general revenues do not
involve the kind of regulatory burden covered by the
dormant commerce clause.
c. the state cannot regulate downstream, that falls outside the
market participant doctrine
B. Cases
i. State as market participant: Reeves, Inc. v. State (1980)
Facts: whether, consistent with the commerce clause, US
constitution, the state of SD may in a time of shortage,
may confine the sale of cement it produces solely to its
residents
Held constitutional, applying test:
Discriminatory on its face
how up held: States can favor their own
citizens when the state is acting as a
market participant, so SD could supply
all local contracts first then supply out of
state contracts
the SD is market participant, it is
competing like any other company, can
reserve resources its citizens. (like
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instate tuition, in the market for
education)
in these circumstances the state is not
acting as a regulator, the state is free to
dispose of the resources as they felt fit,
because the state owns the resource. it is
allowed to protect its own citizens. the
state can’t act as a regulator, and
requiring naked discrimination is illegal
distinguish this from natural resources:
from WV, not like a natural resource, the state is not
restricting the use of a natural resources, in this
case, they own the resources, and selling them
themselves it would not get into the dormant
commerce clause problem.
dissent: did not agree, SD could not withhold its cement
from interstate commerce in order to benefit private
citizens and businesses within the state
ii. White v. Massachusetts Council of Construction (1983)
1. Facts: the mayor required all construction projects funded wholly
with city funds or with city and federal funds be performed by a
work force at least half of which are bona fide residents of the city.
2. Held: does not violate the Dormant Commerce Clause
a. facially discriminatory BUT
b. don’t need to apply the test b/c since the city was acting as
a market participant not a regulator, so the commerce
clause did not apply the state is not regulating the market
c. the impact on people not living in the city does not matter
b/c the state is not regulating.
iii. South Central Timber v. Wunnicke (1984): illustrates a time when the
state crosses the line of the Market Participant Doctrine.
1. Facts: AL statute requiring buyers of timber sold by the state to
process that timber in the state.
2. Held unconstitutional:
a. the court held that the market participant doctrine did not
apply in this case: the state was in reality regulating the
processing market
b. it is doubtful whether a state may impose restrictions on the
subsequent use of goods purchased from the state—that
timber form the state must be processed in the state
3. if the state built its own processing plant, it could sell
only pre-process logs, it could do this even if it had a
discriminatory effect
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iv. New Energy Co. of Indiana v. Limback (1988)
1. Facts: an Ohio taxing statute awarded a tax credit against the Ohio
motor vehicle fuel sale tax for each gallon of ethanol sold
2. Held Unconstitutional
a. The state was not a market participant: the state of Ohio
was not a buyer or selling of fuel
b. Applying test: law is discriminatory on its face
c. the second prong did not fly: b/c the state’s health and
safety rustications were merely speculative and would not
justify the facial discrimination
v. Camps Newfound/ Owatonna, Inc. v. Town of Harrison
1. Facts: A non-profit church camp for children, most of them not
ME residents, brought suit under Dormant Commerce Clause
challenging a ME property tax that provided tax exemptions for
charitable institutions incorporated in the state and that operated
principally for the benefit of state residents.
2. this looks at what can be considered a state owned resource, and
charitable institutions are not even if they perform a quasi-state
function of helping local citizens.
3. Also considers what subsidies given to state residents are
constitutional .
4. Held unconstitutional, 4-5, applying test:
a. facially discriminatory; it penalized camps that served outof-staters
b. rejected the state interest argument: even limited
discrimination violates constitution rejected arguments
i. that the camps were charity focused on local
concerns and the state could give subsidies or the
state was acting as a market participant. because
these were private camps, the state sis not own
them.
VIII. Limits of Business Entry
A. Introduction
i. A state limiting business activity from out of state is subject to the same
type of restricting under the commerce clause as other regulations.
ii. the states cannot adopt laws that are essentially protectionist and burden
the free flow of commerce even though they are rationally designed to
achieve permissive police power objectives.
iii. the cases in this section examine the balancing test when the state seeks to
limit out-of-state business entry to achieve a state interest.
B. Cases
35
i. Lewis v. BT Investment Managers, Inc. (keeping national banks out)
1. Facts: FL statute prohibited PL from owning or controlling a bank
or trust company located within the state; the same statute also
prohibited it from owning businesses furnishing investment
advisory services to local banks or trust companies
2. Applying test:
a. it does discriminate on its face (although the state said it
did not discriminate against all interest commerce just a
certain type)
b. State interest did not out weigh even though it did have a
legit. state interest.
i. Even though banks have profound local concern ,
the statute overly prevents foreign enterprises from
competing in local markets, the statute makes out of
state location of a bank holding company’s
principle place of operations an explicit barrier to
the presence of an investment subsidiary in the state
ii. Edgar v. Mite Corp. (1982): restricting take over
1. Facts: An Il statute imposed restrictions on corporate takeover not
limited to Il corporations beyond those imposed by the federal law.
2. Held unconstitutional:
a. applying test:
i. did not dis. on its face.
ii. but the state law excessively burdened interstate
commerce by places a great burden on companies
wanting to operate in Il.
1. “directly” regulated commerce outside the
state
iii. CTS Corp. v. Dynamics Corp of America (1987)
1. Facts: IN statute provided that when an entity or person acquires
controlling stock of an Indiana corporation having a substantial
number of Indiana Shareholders, the acquiring party obtains no
voting rights.
2. Held: Does not violate the Commerce Clause
a. It is not on its face discriminatory; b/c it applies to all
tender offers whether or not the offeror is an Indiana
resident. Since the law applies only to Indiana Corporations
there is no danger of business being subjected to
inconsistent state regulations.
b. there is no undue burden on interstate commerce:
i. the statute is limited to Indiana corporations, those
who are incorporated under the laws of IN, and is
designed to protect the shareholders of such
36
corporations of such corporations including IN
residents.
ii. this speaks to the idea that the state may regulate
things inside its boarders.
iv. Bendix Autoclave Corp. v. Nidwesco Enterprises, Inc.
1. Facts; Ohio statute, an otherwise available statute of limitations
defense was tolled, and hence made unavailable with respect to
foreign corporations that did not appoint an agent for service of
process a step that operated as consent to the general jurisdiction of
the Ohio courts
2. Held unconstitutional:
a. discriminatory on its face:
i. the supreme court found this to violate the
commerce clause because it discriminated against
out of state DF
C. Cases Percival mentioned in class, RECENT
i. National….v. Sorell ( I didn’t catch name)
1. VT leg. passed a law that manufacturers that produce mercury
containing products to put a label of warning on how to dispose,
one such product is florescent light bulbs
2. Test: Held: court found no conflict with the dormant commerce
clause
a. On its face, it does not discriminate because all
manufacturers would have to also comply
b. The state has a legitimate local interest that products are
disposed of properly
i. and it didn’t burden too greatly out of state
producers
ii. VA v. Star Scientific
1. Required tobacco manufacturers to contribute to a reserve fund
based on how many cigarettes sold in the state, had they been sued
for the future when they might be sued
2. Held to not violate the commerce clause
a. not facially discriminatory, it applies to all man. how
weren’t sued, unless by defining who was sold someone
discriminatory
b. Burden
i. the DF said that the burden was requiring the DF to
keep track of cigarettes sold in the state, it was not
found to be a burden because they were already
keeping track for tax purposes
ii. But the court found that it was just leveling the
playing field
37
IX. Interstate Mobility of Persons
A. Introduction
i. The Commerce Clause has been used to invalidate state restrictions of the
free movement of people into a state.
ii. The power and operation of the nation depends upon the free movement of
people from one state to another.
1. Restricting free access to seaports, the national government, etc.
would compromise the right of citizens.
B. Cases
i. Crandell v. Nevada
1. Tax on people leaving the state was unconstitutional.
ii. Edwards v. California
1. CA passed a statute making it a misdemeanor to bring any indigent
person into the state.
2. Has state interest of not burdening the state
3. Held unconstitutional, indigence is a national burden that must be
shared nationally.
X.
The Privileges and Immunities Clause (and state regulatory
power)
A. Introduction
i. Art. IV 2 provides:
1. “Every Citizen of each state shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
2. This has been interpreted as a prohibition against unreasonable
discrimination against out-of-state citizens in regard to
fundamental national interests.
ii. Policy
1. It is an inherent problem with the federal system, how to reconcile
the advantages of a common citizenship with a dispersed
sovereignty in a number of independent or largely independent
states?
2. One the one hand the state should have autonomy, but also there is
a federal interest in having similar rights across the country.
iii. The term citizens does not include corporation or aliens
iv. Art. IV  2 does not apply to all forms of interstate discrimination. It
applies only if fundamental national interests are burdened, i.e. those
which bear on the vitality of the Nation as a whole.
v. Test asks three questions: (from New Hampshire v. Piper)
1. Is the activity in question “fundamental” in that it is sufficiently
basic to the livelihood of the nation as to be within the privileged
and immunities protected under Art. IV  2?
2. is there a substantial reason for the discrimination?
38
3. Does the discrimination bear a close relation to that reason,
including consideration of the availability of less restrictive
means?
vi. P&I clause v. Commerce clause, when analyzing need to distinguish
1. the P&I clause can apply to areas that the commerce clause
doesn’t, for example when the state is acting as a market
participant can restrict the regulation/ statute
2. but the Commerce Clause is more broad b/c it applies to areas that
do not rise to the level of a P or I
B. Cases
i. United Building and Construction Trades Council of Camden county and
Vicinity v. Mayor and Council of the City of Camden
1. This case illustrates difference between dormant commerce clause,
and P & I clause
2. Facts: The city passed a statute:
a. 40% of the employees had to citizens of the city of
Camden, who were working on the construction projects
that were funded by the city.
b. the city is having great financial problems, so many people
who were paying taxes. moved out of the city, the city was
loosing its tax base. through public works projects to
require the people who work for construction projects to
live in the city.
2. Issue; Does the P&I clause apply to municipalities?
a. the City of Camden says the P I clause does not apply,
because it burdens other citizens of the state not just people
from out of state,
i. it is local matter, but as a practical matter it does
burden people from out of the state, b/c Camden is
close to the boarder, it would have a great effect on
people from out of states.
3. Held: Unconstitutional
a. Does this affect the P&I clause, does the challenged statute
burden one of the P & I that the framers indented to be
protected by the clause?
i. the court said it burdens you in the exercise of
finding employment, that is fundamental privilege,
1. but this is public employment, this may be
different.
2. the court distinguished the White case, the
White case was a commerce clause, projects
were the city was a market participant,
39
3. this shows the P & I clause can be more
broad than the commerce clause, because
some activities that that would not violate
the commerce clause would violate the P&I
clause
4. Dissent: says that the citizenship of a municipality is
fundamentally different than citizenship of a state because
discrimination penalizes people within the state itself, within the
political control of the state, the SC should not deal with the issue
ii. Supreme Court of VA v. Friedman (1988)
1. Facts: VA rule requiring out-of-state lawyers to become
permanent residents of the statue in order to be admitted to the
state bar
2. Held: violated the Art. IV, 2, P&I clause, TEST:
a. Is the activity in question must be sufficiently basic to the
livelihood of the Nation as to fall within the purview of the
P&I clause?
i. the court found yes, b/c the practice of law is so
fundamental to citizenship that it falls under the
protection of the P&I clause.
b. Is there a substantial reason for the rule?
i. the state says that the waive rule is necessary to
ensure people are committed to the interest of the
state (in this case, PL is the exception to the rule
does not mean that you are less committed to the
VA bar)
c. Does dis. bear a close relation to the rule?
i. there are also plenty of non-discriminatory ways to
perform their obligations to stay a breast of VA law.
ii. So, the state fails this part of the test.
iii. Barnard v. Thorstein (1989)
1. Facts: Virgin Island’s (VI) court rule requiring applicants for
admission to the bar live in the VI for one year and to declare an
intention to reside and practice law there following admission.
2. Held: Unconstitutional, applying Piper test
a. Yes, practice of law is fundamental to citizenship
b. There is a reason for the discrimination.
c. But the state objective is not justified, there are less
restrictive means to address the problems relating to the
unique nature of the VI legal system.
40
1) Twenty First Amendment
a) Text: Section 1. The eighteenth article of amendment to the Constitution of the United
States is hereby repealed.
Section 2. The transportation or importation into any State, territory, or
possession of the United States for delivery or use therein of intoxicating liquors,
in violation of the laws thereof, is hereby prohibited
Section 3. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by conventions in the several states, as provided in
the Constitution, within seven years from the date of the submission hereof to the
states by the Congress.
b) History: The Twenty First Amendment repealed prohibition
i) Started with 18th Amendment; ratified Jan. 29, 1919; effective Jan. 16, 1920
ii) Prohibition was Constitutionally added because it was not clear if Congress had the
authority under the Commerce Clause
iii) Section 2 of the 18th Amendment allows concurrent federal and state power to
enforce; because large percent of population wanted to continue to enjoy liquor the
law could not be enforced and it led to corruption of law enforcement
iv) The 21st Amendment still allows the state to regulate alcohol (can be a dry state if
they choose)
c) Cases/ Law Today:
i) Intrastate Regulations
(1) Gives state governments wide latitude over the importation of liquor and
conditions under which liquor is sold or used within the state; state can
regulate/own/operate liquor stores if it chooses
(2) However, state liquor regulations that constitute only an economic preference for
local liquor manufacturers may violate the Commerce Clause
(3) Commerce Clause prohibits both outright economic favoritism for local
businesses and attempts to regulate out-of-state transactions in order to guarantee
the competitive position of in-state businesses.
(4) Examples:
(a) A state sales tax on liquor produced in other states that does not tax sales of
locally produced alcoholic beverages violates the Commerce Clause. Bacchus
Imports, Ltd. v. Dias, 468 U.S. 263 (1984)
(i) Hawaii wines were exempt from a 20% excise tax on imported wines
(ii) The 21st Amendment cannot save this tax because the 21st gives the state
power to regulate the alcohol with the central purpose of promoting
temperance—not to allow economic protectionism
(b) A state law that requires out-of-state distillers or sellers of alcoholic beverages
to affirm that the price the distiller/seller is charging liquor retailers or
wholesalers in the state is no greater than the price the distiller/seller is
charging in other states violates the Commerce Clause. Such a price
affirmation law directly interferes with and burdens interstate commerce.
Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S.
573 (1986)
(5) The 21st Amendment does not suspend the Dormant Commerce Clause
41
ii) Interstate Regulations
(1) Liquor bound for out-of-state destinations is subject to the Commerce Clause
iii) Conflicts Between State Liquor Laws and Individual Rights
(1) Individual rights guaranteed by the Bill of Rights and the Fourteenth Amendment
outweigh state liquor control laws
(2) “Excessive drinkers” are entitled to procedural due process before the state can
post their names in liquor stores. Wisconsin v. Constantineau, 400 U.S. 433
(1971)
(3) The Equal Protection Clause prohibits different age minimums based on sex in the
sale of liquor. A state cannot permit 18-year-old females to buy beer and prohibit
18-to-21-year-old males from doing so. Craig v. Boren, 429 U.S. 190 (1976)
iv) Federal Power
(1) Twenty-First Amendment does not prohibit Congress from controlling economic
transactions involving alcoholic beverages under the federal commerce power.
Capital Cities Cable Inc. v. Crisp, 467 U.S. 691
(a) The state can regulate the time, place, and sales of liquor—but not advertising
of liquor on Cable TV
(2) Federal anti-trust law can prohibit a practice of liquor dealers that has the affect of
fixing minimum prices. 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987)
(3) Congress may, without violating the Twenty-First Amendment, “regulate” liquor
distribution by imposing conditions on the grant of federal funds given under the
spending power. South Dakota v. Dole, 483 U.S. 203 (1987)
v) ****Note: Watch for a Supreme Court decision regarding Virginia’s regulation of
state-owned liquor stores…residents must purchase out-of-state wine through the
local liquor store…cannot deal directly with out-of-state merchants—lower court
struck the regulation down as unconstitutional in violation of the dormant commerce
clause
2) Supremacy Clause (Preemption)
a) Text: Article VI[2]: This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the Supreme law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding
b) History:
i) Gibbons v. Ogden: NY trying to grant a monopoly for transporting passengers across
the river, found to conflict with a federal licensing scheme (federal law supreme)
ii) Most governmental power is concurrent, belonging to both the states and the federal
government
iii) Supremacy Clause provides that federal law is supreme and will render conflicting
state law void
c) Cases/Law Today:
i) Actual Conflict Between State and Federal Laws
(1) A valid act of Congress or federal regulation supersedes any state or local action
that actually conflicts with the federal rule—whether by commanding conduct
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inconsistent with that required by the federal rule, or by forbidding conduct that
the federal rule is designed to foster
ii) State Prevents Achievement of Federal Objective
(1) The conflict need not relate to conduct; it is sufficient if the state or local law
interferes with achievement of a federal objective. This is true even if the state or
local law was enacted for some valid purpose and not merely to frustrate federal
law
iii) Preemption
(1) Types of Preemption
(a) Express: Congress enacted a statute that expressly indicates that they want to
preempt/bar certain state laws or regulations in an area
(b) Implied: Congress did not explicitly say so, but court finds that because of the
nature of the statutory scheme Congress has set up, that state laws or
regulations should be preempted
(i) Field: Involves circumstances where courts have found that because of
the nature and purpose of the regulatory scheme adopted by Congress, it
evinces an intent of the federal government to “occupy the field”; states
cannot regulate it all (Napier v. Atlantic Coast Line R. Co., 272 U.S. 605
(1926): Congress gave ICC power to prescribe rules for the safety of
locomotives, and this barred all state regulation of locomotive safety—
even with respect to subjects ICC had not issued any regulations for)
(ii) Conflict: Congress has not done anything to indicate that it wanted to
preempt state regulation, but because of the nature of what the state has
done, it is impossible to comply with both the federal and state regulations
(2) A state or local law may fail under the Supremacy Clause, even if it does not
conflict with federally regulated conduct or objectives, if it appears that Congress
intended to “occupy” the entire field, thus precluding any state or local regulation.
(a) In the absence of conflict or express exclusion of state regulation, the courts
must determine if Congress intended to occupy exclusively a field of
regulation; the courts consider
(i) The need for uniformity
(ii) Legislative history
(iii)Pervasiveness of the federal regulatory scheme
(iv) Historical dominance of national or local interest in the area
(v) Potential for conflict from dual administration
(vi) Use of a federal regulatory agency to maintain continued regulatory
control of an area
(3) Courts are split on the preemption issue: struggle between federal and state
power…which entity should have more power? (Question now: should federal
government preempt state tort law on the issue of punitive damages, etc.?)
(4) Cases:
(a) Pacific Gas & Electric v. California Energy Commission (1983): Voters
could vote to bar the state from licensing any new nuclear power plants; but
federal government in Atomic Energy Act completely “occupied the field” of
nuclear regulation (implied preemption—field preemption because CA said it
was motivated by safety concerns); upheld here
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(b) Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992):
A state which has not opted out of the Federal Occupational Safety Health Act
may not regulate worker safety; [presumption against preemption]
(c) Geier v. American Honda Motor Co., Inc. 120 S.Ct. 1913 (2000): Court is
worried that gov. will find conflicts even when there is no impossibility for
the state and federal regulations to coexist; when does presumption against
preemption apply?; states are allowed to develop more stringent regulations
than those provided by the federal agency with federal approval; Can federal
silence constitute preemption? State could not impose tort liability on
companies who legally did not install airbags in vehicles the year before the
feds said airbags were mandatory
(5) United States v. Locke, 120 S.Ct. 1135 (2000): state tried to regulate waterways,
an area of historical significant federal presence (overruled)
III.
SEPERATION OF POWERS: The Executive Power
d) Text: Article II, Section 1…The executive Power shall be vested in a President of the
United States of America.
e) Various executive functions may be and are delegated within the “executive branch” by
the President or Congress
3) Domestic Powers of President
a) Appointment and Removal of Officers
i) Appointment
(1) Text: Article II, Section 2, the President is empowered “with the advice and
consent of the Senate” to appoint “all ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the United States,
whose appointments are not herein otherwise provided for…but the Congress may
by law vest the appointment of such inferior officers, as they think proper, in the
President alone, in the courts of law, or in the heads of departments.”
(2) Appointment of “Independent Counsel” (Special Prosecutor)
(a) Under the Ethics in Government Act of 1978, a special prosecutor (i.e. a
prosecutor appointed by the federal court upon the attorney general’s
recommendation that alleged government employee misconduct be
investigated) is an “inferior officer,” since the prosecutor has limited duties (to
investigate and prosecute a narrow range of persons and subjects). Therefore,
the Appointment Clause of Article II, Section 2 allows Congress to vest the
power to appoint a special prosecutor in the judiciary.
(b) The Ethics in Government Act scheme does not give executive powers to the
judiciary, since the Act gives the executive branch control of the decision to
investigate and the power to dismiss the independent counsel for good cause.
Morrison v. Olson, 487 U.S. 654 (1988)
(c) ****The Ethics in Government Act was not renewed by Congress following
the Starr investigation of President Clinton. It is feared that the Independent
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Counsel position is too powerful due to its non-removability by the executive
branch. The Independent Counsel position is constitutional, but currently
there is no statute to provide the means to select that person.
(3) Although Congress may appoint its own officers to carry on internal legislative
tasks, it may not appoint members of a body with administrative or enforcement
powers; Buckley v. Valeo, 424 U.S. 1 (1976)
(4) Commissioned military officers, who are officers of the Untied States appointed
by the President and confirmed by the Senate, do not require a second
appointment pursuant to the Appointments Clause to serve as military judges.
Weiss v. United States (1994)
ii) Removal
(1) Text: Constitution is silent concerning removal except for ensuring tenure of all
Article III judges “during good behavior”
(2) Cases/Law Today:
(a) Removal by President: Under the Court’s decisions, the President probably
can remove high level, purely executive officers (e.g. Cabinet members) at
will, without any interference from Congress. However, after Morrison v.
Olson, it appears that Congress may provide statutory limitations (e.g.
removal for good cause) on the President’s power to remove all other
executive appointees.
(b) Removal by Congress:
(i) Limitation on Removal Power: Congress cannot give itself the power to
remove an officer charged with the execution of law except through
impeachment.
(ii) Limitation on Powers of Removable Officers: Congress cannot give a
government employee who is subject to removal from office by Congress
any powers that are truly executive in nature.
(iii) Examples:
1. Provisions of the Gramm-Rudman Act vesting in the Comptroller
General authority to specify spending reductions binding on the
President was found to violate the separation of powers. The
Comptroller is an agent of Congress since by earlier legislation he is
removable for designated causes (i.e. inefficiency, neglect of duty).
Bowsher v. Synar (1986)
2. Myers v. United States, 272 U.S. 52 (1926): A federal statute by
which certain postmasters of the United States could be removed by
the President only “by and with the advice and consent of the Senate”
was found to be an unconstitutional attempt by Congress to involve
itself in the removal of an executive official
3. Humphrey’s Executor v. United States, 295 U.S. 602 (1935): Court
found that whether Congress can condition the President’s power of
removal by fixing a definite term and precluding a removal except for
cause, will depend upon the character of the office. In this case, the
Court found that the Constitution did not give the President
“illimitable power of removal” over officers of independent agencies,
such as the FTC.
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b) Pardons
i) Text: President is empowered by Article II, Section 2, “to grant reprieves and
pardons for offenses against the United States, except in cases of impeachment.”
ii) This power applies before, during, or after trial, and extends to the offense of criminal
contempt, but not to civil contempt, inasmuch as the latter involves the rights of third
parties.
iii) The pardon power cannot be limited by Congress, and includes power to commute a
sentence on any conditions the President chooses, as long as they are not
independently unconstitutional. Schick v. Reed, 419 U.S. 256 (1974)
c) Legislative Delegation
i) Much executive law-making results from congressional delegation of legislative
power. Such delegation is constitutional provided Congress exercises the essentials
of the legislative function by determining policy and formulating reasonable
standards to guide the exercise of executive discretion.
ii) Mistretta v. United States, 488 U.S. 361 (1989)
(1) Congressional legislation creating the United States Sentencing Commission in
the Judicial Branch and delegating to it power to formulate sentencing guidelines
binding on the courts does not violate separation of powers. The Act set forth the
policies and principles governing Commission operations and provides specific
directives to govern formulation of the Guidelines. There was, therefore, no
violation of the nondelegation doctrine
(2) Delegation of some rulemaking authority to a Commission located in the Judicial
Branch does not violate separation of powers if it does not intrude on the
prerogatives of another Branch and is appropriated to the central mission of the
Judiciary. Setting sentencing policy is a shared responsibility of the Branches and
the Judiciary has always played a role.
(3) The fact that Article III judges serve on a Commission with nonadjudicatory
functions does not violate separation of powers. Article III judges may perform
extrajudicial duties if such service does not “undermine the integrity of the
Judicial Branch”. Nor does the fact that the President appoints and removes
members of the Commission for good cause pose a sufficient threat to judicial
independence to violate separation of powers
d) Veto Power
i) Congress May Override Veto by Two-Thirds Vote: Every act of Congress must be
approved by the President before taking effect, unless passed over his disapproval by
two-thirds vote of each house (Article I, Section 7)
ii) President Has 10 Days to Veto
(1) The President has 10 days (excepting Sundays) to exercise his veto power. If he
fails to act within that time:
(a) The bill becomes a law if Congress is still in session; or
(b) The bill is automatically vetoed if Congress is not in session (pocket veto),
Pocket Veto Case, 279 U.S. 655 (1929)
(2) Brief recesses during an annual session create no pocket veto opportunity, Wright
v. United States, 302 U.S. 583 (1938)
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iii) Legislative Veto Unconstitutional: Immigration and Naturalization Services v.
Chadha, 462 U.S. 919 (1983)
(1) History: The legislative veto evolved as an important mechanism by which
Congress has attempted to secure the accountability of executive and independent
agencies to whom it must delegate portions of its authority in order to deal with
the vast scope of federal programs. In the last 50 years this type of veto
mechanism has been placed by Congress in nearly 200 separate laws.
(2) This Case: In the Immigration and Naturalization Act, Congress delegated
authority to the Attorney General to suspend deportation of aliens. However,
Congress reserved control over executive action by allowing either House to
review and veto the suspension order.
(a) Congress allowed suspension of deportation proceedings to allow flexibility in
cases where deportation would result in “extreme hardship”
(3) Holding (Burger): It is unconstitutional to authorize by statute a one-House
“veto” if such a “veto” constitutes action that is essentially legislative in purpose
and effect and which is thus of the kind generally subject to the bicameralism and
presentment requirements of Article I.
(4) Presentment Clause (Article I, Section 7(3)): Every Order, Resolution, or vote, to
which the concurrence of the Senate and House of Representatives may be
necessary…shall be presented to the President of the United States…
(5) Dissent (White): In light of the widespread congressional use of the legislative
veto, the court would have been better well-advised to decide this case on
narrower grounds of separation of powers.
(6) Dissent (Rehnquist): Congress has always insisted that it would give the
executive branch permission to suspend deportation only if it retained control of
the suspension process through some sort of mechanism, which was the purpose
of the one-House veto provision. By severing the one-House veto provision from
the rest of the statute and holding it unconstitutional, the court confounded
Congress’ intention.
iv) Line Item Veto Unconstitutional
(1) The veto power allows the President only to approve or reject a bill in toto; he
cannot cancel part (through a line item veto) and approve other parts.
(2) Rationale: The President’s veto power does not authorize him to amend or repeal
laws passed by the Congress. Clinton v. City of New York, 524 U.S. 417 (1998)
(3) The silence of the Constitution on the President’s power to amend or repeal
portions of a statute is “equivalent to an express prohibition”, Clinton
v) Alternatives to the Veto
(1) Congressional Review Act: all rules that agencies make must be reported to
Congress; there is a special provision for veto of an agency rule whereby the
action is then presented to the President…only used once to strike down the
OSHA “ergonomics rule”
(2) Office of Management and Budget: President has this office review agency rules;
if President agrees to agency rules there is no sense in Congress legislating
against it only to be vetoed
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e) Power as Chief Executive
i) The President has not inherent domestic law-making powers, at least in the absence of
extreme emergency. In emergencies, his power as Chief Executive under Article II,
Section 1, and his power to “take care that the laws by faithfully executed” (Article II,
Section 3), do appear to create some power to act subject to Congressional authority
ii) Guide for determining the validity of presidential actions regarding internal
affairs (Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), Justice Jackson
concurring opinion):
(1) Where the President acts with the express or implied authority of Congress, his
authority is at its maximum and his actions are likely valid;
(2) Where the Presidents acts where Congress is silent, his action will be upheld as
long as the act does not take over the powers of another branch of the government
or prevent another branch from carrying out its tasks [See United States v. Nixon,
418 U.S. 683 (1974)—President’s invocation of executive privilege was
invalidated because it kept federal courts from having evidence they needed to
conduct a fair criminal trial]
(3) Where the President acts against express will of Congress, he has little authority
and his action likely is invalid [The seizure of the steel mills by President
Truman to avert a crippling strike during the Korean war was held
unconstitutional since Congress had previously legislated regarding the scope of
executive power to curtail strikes, Youngstown]
iii) Executive Orders
(1) History:
(a) Presidents did not issue many executive orders until Teddy Roosevelt, for
example creating federal wildlife refuges
(b) Franklin Roosevelt also issued many executive orders as a result of the Great
Depression to manage economy
(c) President George W. Bush has issued 56 executive orders as of March 2002
(2) Recent Rulings
(a) Under the National Labor Relations Act, companies can replace striking
workers. President Clinton issued executive order to all federal agencies not
to hire federal contractors who replace strikers with strike breakers. Court
struck this order down because the NLRA allowed companies to do this,
President cannot change the law.
(b) President Bush issued executive order saying project labor agreements cannot
be required for any federally funded projects, and any project requiring this
agreement would not receive federal funds. Court struck it down on the
grounds that he was trying to change the law.
(3) Can President dictate how agencies are to make decisions?
(a) Congress has authority to create agencies
(b) President has some power over agencies…he can fire the head of the agency,
this may be important in regulations agencies will issue against President’s
will
(c) Percival argument: President does not have the legal authority to tell agencies
what rules/regulations to make…it is an important check on the Presidential
power if he has to fire the head of agency to get regulations his way
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f) Executive Impoundment
i) The President impounds when he withholds or delays the expenditure of
congressionally appropriated funds. This may defeat a congressional program or
policy.
ii) Court has not ruled on the Constitutionality of impoundment
4) Power Over External Affairs
a) War
i) Shared Power
(1) Congress has the power to declare war, to create and regulate the armed forces,
and to provide for the general defense. From these express powers are implied
broad powers to prepare for war, to regulate during wartime, and to remedy
wartime disruptions.
(2) Although lacking the power to declare or initiate “formal” war, the President has
extensive military powers.
(3) War Powers Resolution
(a) Sixty days after the President is required to report the use of the armed forces,
such use shall terminate unless Congress affirmatively acts. However,
President can then assert he has the power to protect the country
(b) Congress may limit the President under its power to enact a military
appropriation every two years
(c) Whether the War Powers Resolution is an unconstitutional delegation of
Congress’ power to declare war or excessively intrudes on the President’s
power as Commander in Chief, his duty to execute the law and his status as
Chief Executive, has not been judicially determined.
ii) The President may act militarily under his power as commander in chief of the armed
forces and militia, under Article II, Section 2, in actual hostilities against the United
States without a Congressional declaration of war.
(1) In The Prize Cases (1863) President Lincoln’s blockade of southern ports upheld
because he has the power to suppress insurrection against the government of a
state or the United States
(2) In Mora v. McNamara, 389 U.S. 934, cert was denied concerning the question of
whether or not the Vietnam War was “illegal”; Court did not want to get involved
(3) Note: An executive claim of national security does not justify an injunction
against newspaper publication of classified material, at least in the absence of
Congressional authorization or direct, immediate, and irreparable damage to the
nation. New York Times Co. v. United States (1971)
iii) This power includes the establishment of military governments in occupied
territories, including military tribunals
b) Foreign Relations
i) The President’s power to represent and act for the United States in day-to-day foreign
relations is paramount, United States v. Curtiss-Wright Export Corp. 299 U.S. 304
(1936)
49
ii) The President has the power to appoint and receive ambassadors and make treaties
(with the advice and consent of Senate, Article II, Section 3), and to enter into
executive agreements.
c) Treaty Power
i) Text: The treaty power is granted to the President “by and with the advice and
consent of the Senate, provided two-thirds of the Senators present concur.” (Article
II, Section 2, Clause 2)
ii) Supreme Law
(1) All treaties “which shall be made under the authority of the United States” are the
“supreme law of the land” (Article VI, Paragraph 2)
(2) Any state action or law in conflict with a United States treaty is invalid, regardless
of whether it is a state law or a state constitutional provision
(3) Self-Executing: No treaty has this supremacy status unless it is expressly or
impliedly self-executing, i.e. without necessity for congressional implementation
(a) Example: Legislation implementing a treaty with Canada regulating the
movement of migratory birds was held constitutional even though the Court
had previously indicated that the Commerce Clause was not a source of power
for the legislation. Missouri v. Holland (1920)
(4) Non Self-Executing Treaties: Some treaties require the signatory nations to pass
legislation to effectuate their ends. This serves as an independent source of
Congressional power.
(5) Conflict with Congressional Acts: Assuming that an act of Congress is within its
powers, a conflict between such act and a valid treaty is resolved by order of
adoption—the last in time prevails The Chinese Exclusion Case (1889)
(6) Conflict with Constitution: Treaties are not co-equal with the Constitution. For
example, no treaty (or executive agreement) could confer on Congress authority
to act in a manner inconsistent with any specific provision of the Constitution,
Reid v. Covert, 354 U.S. 1 (1957)
iii) Other Limitations
(1) The Court has never held a treaty unconstitutional
(2) It is conceivable that the treaty power extends only to subjects plausibly bearing
on relations with other countries
d) Executive Agreements
i) President’s power to enter into agreements with the head of foreign countries is not
expressly provided for in the Constitution; however the power has become
institutionalized. United States v. Belmont (1937)
ii) Executive agreements can probably be on any subject as long as they do not violate
the Constitution
iii) Executive agreements do not require the consent of the Senate
iv) Conflicts
(1) Conflicting federal statutes and treaties will prevail over an executive agreement,
regardless of which was adopted first
(2) Executive agreements prevail over conflicting state laws
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v) Example: The President, with implicit approval of Congress, has power to settle
claims of United States citizens against foreign governments through an executive
agreement, Dames & Moore v. Regan, 453 U.S. 654 (1981)). When the President acts
on a vital issue of foreign affairs with congressional approval and authorization, his
constitutional power is maximized.
5) Executive Privileges & Immunities
a) Privileges
i) Executive privilege is not a Constitutional power, but an inherent privilege necessary
to protect the confidentiality of presidential communications
ii) Presidential documents and conversations are presumptively privileged, but the
privilege must yield to the need for such materials as evidence in a criminal case to
which they are relevant and otherwise admissible. This determination must be made
by the trial judge after hearing the evidence.
iii) National Security Secrets: military, diplomatic, or sensitive national security secrets
are given great deference by the courts as privileged
iv) Criminal Proceedings: In criminal proceedings, presidential communiqués will be
available to the prosecution, where a need for such information is demonstrated,
United States v. Nixon, 418 U.S. 683 (1974)
(1) Nixon’s argument: Presidential talks with aides should be under absolute
privilege because the judicial branch should not be able to interfere with the
executive branch and the confidential conversations ensure candor
(2) Court’s answer: President is not above the law, there is no absolute immunity in
situations that infringe on the role of the courts in gathering criminal evidence
v) Screening Papers and Recordings of Former President: A federal statute requiring the
Administrator of General Services to screen the presidential papers is valid,
notwithstanding the privilege, Nixon v. Administrator of General Services, 433 U.S.
425 (1977)
vi) Screening by Judge in Chambers: The court will determine in an in-camera
inspection which communications are protected and which are subject to disclosure
vii) ****Note: The Bush administration thinks the Clinton administration was too liberal
in turning over documents to Congress. They are now challenging Congress’
attempts to get the names of parties present at the energy meetings with VP Cheney
as privileged
b) Immunities
i) Absolute Immunity for President
(1) The President has absolute immunity from civil damages based on any action that
the President took within his official responsibilities (even if the action was only
arguably within the “outer perimeter” of presidential responsibility) Nixon v.
Fitzgerald, 457 U.S. 731 (1982)
(2) The President has no immunity from private suits in federal courts based on
conduct that allegedly occurred before taking office. Clinton v. Jones, 520 U.S.
681 (1997) Rationale: The immunity is intended only to enable the President to
perform his designated functions without fear of personal liability
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ii) Immunity May Extend to Presidential Aides: Presidential aides share in this
immunity only if they are exercising discretionary authority for the President in
“sensitive” areas of national concern, such as foreign affairs.
(1) Other aides are entitled only to qualified immunity (good faith defense), they are
subject to liability only for violation of clearly established constitutional or
statutory rights which would have been known by a reasonable person. Harlow v.
Fitzgerald, 457 U.S. 800 (1982)
(2) The Attorney General enjoys only qualified immunity even when performing
national security functions. Mitchell v. Forsyth, (1985)
6) Impeachment
a) The President, Vice President, and all civil officers of the United States are subject to
impeachment (Article II, Section 4)
b) The grounds for impeachment are treason, bribery, high crimes, and misdemeanors.
Note: Whether high crimes and misdemeanors is limited to criminal offenses or includes
some acts of political maladministration or failure to discharge the constitutional duties of
the office has not been judicially determined.
c) A majority vote in the House is necessary to invoke the charges of impeachment (Article
I, Section 2)
d) A two-thirds vote in the Senate is necessary to convict. (Article I, Section 3). The Chief
Justice presides when the President is tried
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