Constitutional Law
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States have the general police power to regulate public safety, health and morals.
Fed gov’t can only act according to enumerated powers.
Ways to challenge laws…
o 1) Do the feds have the power?
! Commerce clause
! Anti-commandeering against the states
! Tax & Spending
o 2) Has the state law been preempted by fed law?
o 3) Dormant commerce clause challenge to state law that unfairly burdens
trade?
! Consent or state involvement overrides this
o 4) Does the executive not have this power?
! Look at Youngstown or war powers
o 5) Does it violate substantive due process?
! For economic regulations on liberty (right to contract) very
deferential test – can easily be deprived of this right.
! For modern matters…
• Look at each subheading on my outline.
• Emphasis on history & tradition (Washington, vacco,
lawernce, Michael H…etc); int’l law (Geneva convention
in Hamdan).
• How to define the right? More narrow (right to marry gay
v. right to marry) (right to die peacefully v. right to die
whenever one wants).
• Who defines what the right is? (right to die or right to
protect from bodily intrusion..etc)
o 6) Is there a reason the court wouldn’t decide this?
! Political Question for decisions that belong to gov’t branches.
Wars and foreign policy. They are not capable of deciding.
! No advisory opinions – only live cases and controversies
(standing)
! Mootness – case is moot
! Ripeness – go through admin. Agency proceedings first.
Political Theory
o Federalist No. 10 (factions)
! United by a common impulse adverse to the rights of others
! Excessive factionalism in a large republican gov’t is solution –
cross cutting cleavages
o Federalist No. 51 (division of powers and checks n balances)
! Who will guard the guardians?
! Branches should be independent. Federal v. states. And different
branches. They will check and balance eachother.
o Counter-majoritarian Dilemma
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Someone has to look out for greater good in democracy. Problem
is it goes against form of gov’t.
Judicial Review
o Marbury v. Madison (1803)
! Constitution is supreme law of land, but who has final authority to
interpret? Marshall says SCOTUS. (exclusiveness? Hegemony?)
! Exec branch is subject to law, but they do have exec. privilege for
the interworkings of govt
! Individual rights are dependent on legislature – cannot sport away
vested rights of others
o Martin v. Hunter’s Lesee (1816)
! SCOTUS can review state ct. decisions
! Only if federal law is present, what happens if state says it is not?
o Cohen’s v. Virginia (1821)
! SCOTUS can review state criminal laws to see if const. rights are
violated
! State judges are elected – vulnerable to political process
o Cooper v. Aaron (1958)
! School board seeks postponement of racial desegregation bc of
“chaos, bedlam & turmoil”
! State officials must obey fed ct orders; cannot sacrifice the rights
of others even if it poses difficulty
o Dickerson v. United States (2000)
! SCOTUS decisions cannot be overruled by legislature
! Like Miranda – gives SCOTUS power of interpretation. Not for
rules or procedure.
o Arguments for…
! No other practical solution, need a check on power
! Accounts for up’s and down’s and protects minority rights?
o Checks on judicial power
! Pesident nominates & senate confirms (Bork)
! Impeached for bad behavior (never have)
! Congress can make exceptions to appellate jurisdiction
(Reconstruction acts in ex parte mcCardle)
! Protect const. or why have one
! Congressional amendment (congress 2/3 -> ¾ states ratify)
Necessary & Proper clause and Supremacy Clause
o McCulloch v. Maryland (1819)
! Congress has power to incorporate a bank bc it is necessary &
proper to collect taxes and raise armies
• Nec & Proper = “useful” or a calculated means to a const.
end.
! Maryland cannot tax a federal branch of gov’t
• Const. is supreme law of land; “power to tax is power to
destroy” fed gov’t
• Fed can tax states; states cannot tax fed
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Those limited and enumerated powers of fed gov’t are
supreme
Commerce Power (Power of fed gov’t to act)
o Definitions:
! “Commerce among the several states”
! If Congress acts, then supremacy clause. Inconsistent state action
not okay.
! If Congress doesn’t act, dormant commerce clause. Restraints on
free trade between the states. Unfairly burdens one state.
• Regulation designed for entire result (Gibs)
• See section below on this.
o Gibbons v. Ogden (1824)
! Ny leg. Grants exclusive rights to operate steamboats in NY waters
but explicitly conflicts w/ license he has under Fed. Nav. Act.
! Commerce is intercourse among more than 1 state
• Can be in a state’s interior
! This is commerce.
o Willson v. Black Bird Creek Marsh Co. (1829)
! Delaware law allows BB to build a dam across stream. Fed nav
laws allow him to sail. He crashes sloop.
! No dormant commerce clause bc feds didn’t regulate small
sloops.
! Police powers and health and safety of make this a state power.
o US v. EC Knight Co. (1895)
! Sherman anti-trust act cannot be used to stop sugar co. from
acquiring 98% of US manufacturing capacity.
! No power here – manufacturing is an indirect effect on commerce.
o Houston E&W Tex RR Co v. US (1914)
! RR charges lower rates for TX than for Louisiana. Rate
discrimination.
! Interstate OK if it substantially affects out of state
o Swift & Co. v. US (1905)
! Cattle are sent back and forth between states so they can be
regulated even if instate. Direct effect on commerce.
o Champion v. Ames (1903)
! Fed Lottery act prohibits lottery tix from being transported
interstate
! Ok bc they are traveling across states
o Hipolite Egg Co. v. US (1911)
! Congress can regulate shipment of eggs that contain deleterious
ingredients under FDA
o Hoke v. US (1913)
! SCOTUS upholds mann act, women cannot be transferred
interstate for immoral purposes
o Hammer v. Dagenhart (1918) OVERRULED
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Regulation of child labor is not OK bc the goods are created in
state.
! Only manufacturing here. Effects on IS do not matter; formulaic
test.
o RR Retirement Board v. Alton RR Co. (1935)
! Congress cannot establish a retirement and pension plan for RR
workers.
! Social welfare regs are IS
o Schechter Poultry Corp. v. US (1935)
! NIRA authorizes pres to make codes of fair competition (wages,
max hours, bargaining…etc)
! Unconstitutional. No commerce power bc hours and wages are
indirect. Slippery slope in concurring.
o Carter v. Carter Coal Co (1936)
! Establishes NIRA type system for coal industry, max hours and
min wages.
! Production is a local activity. No power to do this.
! Must be a direct relation not an indirect effect.
Modern Commerce Power
o Before this…
! Manufacturing; direct v. indirect effects
! Economic regulations were not OK – promote laissez faire (RR,
Schechter, Carter Coal, Hammer, EC Knight)
! Regulating products that were in themselves harmful or deleterious
was OK (Hoke, Hipolite Egg, Champion)
• Houston E&W and Swift (maybe gibbons) for products that
transfer through commerce
o After this…
! Can regulate:
• (1) Channels of IS commerce; (2) things traveling in IS
commerce; (3) have substantial relation to IS commerce (<Lopez states this) (4) necessary to a larger regulatory
scheme (Raich) (5) things in aggregate if it falls into one of
those (wickard)
! Economic (wickard, heart of Atlanta, katzenbach) v. non-economic
activity (Lopez, Morrison)
! Look at findings (altho not nec. or suff)
o NLRB v. Jones & Laughlin Steel Corp. (1937)
! NLRA finds Jones & Laughlin (4th largest producer of steel owns
boats..etc) guilty of unfair labor practices for union activity.
! “close and substantial” relation to interstate commerce – so feds
have the power
o US v. Darby (1941)
! Congress can ban shipment of goods in interstate commerce by
employees who violate min wages or max hours
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