Constitutional Law I Outline PDF

Ch. 1: History and Overview 1. **Organization of Constitution** a. Preamble- makes clear the people, rather than the states, adopted the Constitution b. Article I- powers of legislative branch c. Article II- powers of executive branch d. Article III- powers of feder...

Ch. 1: History and Overview 1. **Organization of Constitution** a. Preamble- makes clear the people, rather than the states, adopted the Constitution b. Article I- powers of legislative branch c. Article II- powers of executive branch d. Article III- powers of federal judiciary 2. **Articles of Confederation** e. Weak federal government- could not tax, enforce laws, no national courts, no individual branches of federal gov 3. **Methods of Interpreting the Constitution** f. Constitutional interpretation is more complex than statutory interpretation i. Constitution is a higher law ii. Constitution is hard to amend iii. Constitution is 200 years old iv. Dead hand problem: men who wrote the constitution can reach into the future g. **Originalism** v. "Interpret" means to seek original meaning vi. Originalism is the only approach that recognizes the Constitution as law vii. Originalism is necessary to preserve democratic values viii. Originalism constrains the ability of judges to input opinions ix. Originalism established by precedent h. **Non-Originalism** x. Constitution's meaning today is not always the meaning it originally had xi. Look to judicial precedent and state practices xii. Avoids the dead hand problem Ch. 2: Judicial Power 1. **Judicial Power** a. Article III i. Sec. 1: Judicial power vested in one Supreme Court and inferior courts as Congress may from time to time establish; lifetime term ii. Sec. 2: Cases & controversies; Subject matter jurisdiction of federal courts b. [Judicial Review] iii. Political Question: actions of agents of the President and executive that are carrying out their will are only politically examinable iv. Supreme Court is supreme in exposition of the Constitution 1. *Marbury v. Madison:* Marbury filed writ of mandamus for SOS to deliver his commission, court found he did have a right to commission because signed by president and sealed by secretary, transmission (delivery) was a practice of convenience, since secretary was directed by president his actions are only politically examinable, the court could not issue mandamus because the court only has appellate jurisdiction and mandamus was original jurisdiction in this case, court looked at whether Congress had exceeded the limitations of Article III in a statute defining the SC's original jurisdiction v. The Supreme Court has appellate jurisdiction over state court decisions 2. *Martin v. Hunter's Lessee:* VA state court did not respect ruling of SC overruling their finding on land dispute case, Article III gives the SC appellate jurisdiction over state court cases vi. State officials and state legislatures are bound by orders of the Supreme Court based on its interpretation of the Constitution 3. *Cooper v. Aaron:* In Brown, SC held racial segregation unconstitutional and ordered desegregation, governor of AK didn't obey, SC held governor is required to comply because Article IV makes Constitution supreme law of land and Marbury held SC was supreme in interpreting Constitution c. **Obstacles To Judicial Review** vii. [Political Question Doctrine] 4. It is the relationship between the judiciary and the coordinate branches of the federal government which gives rise to the political question 5. No political question a. *Baker v. Carr:* Voter apportionment and equal protection, not a political question because the question here is the consistency of state action with the federal constitution and there is no question that has been decided or needs to be decided by a branch coequal with the court 6. [Political Question Factors:] b. Whether there is a textually demonstrable commitment in the Constitution of the issue to the President or Congress c. Whether there are judicially discoverable and manageable standards to resolving the question d. Whether resolution of the question calls for policy decisions inappropriate for judicial resolution e. Whether resolution of the question will express a lack of due respect for other branches of government f. Whether there is an unusual need for unquestioning adherence to a political decision that has already been made g. Whether there is the potential for embarrassment from inconsistent resolutions of the issue by the Court and one or more of the political branches 7. Yes political question h. *Nixon v. United States:* Nixon argued Senate could not appoint special committee to hear impeachment because Con says senate shall have sole power, court found political question because there was textually demonstrable commitment to another branch and too many definitions of try (lack of judicially discoverable standards), court cannot decide whether senate's use of committee violated Constitution viii. **Standing** (part of case & controversy requirement) 8. Whether the litigant is entitled to have the court decide the merits of the dispute or particular issue 9. [Standing Factors:] i. Injury in fact i. Concrete and particularized ii. Actual or imminent j. Causal relationship between the injury and the challenged conduct that is fairly traceable k. Likelihood that the injury will be redressed by a favorable decision iii. The court must be able to give effective relief (if not, it would be an advisory opinion) l. Prudential Component iv. Plaintiffs can't raise claims based on the legal rights of someone else v. No generalized grievances vi. Zone of interests: plaintiffs' claims must fall within the zone of interests protected by the law they're invoking 10. No standing- must have a personal stake in the outcome of the case m. *Allen v. Wright:* parents of black public school kids, allege harm by government aid to discriminatory private schools and tax exemptions impair their ability to have desegregated public schools, first issue not judicially cognizable because not directly injured and no personal stake, second issue not fairly traceable to tax exemption 11. No standing- can't be generalized grievance, ripeness n. *Lujan v. Defenders of Wildlife:* standing not precluded when plaintiff's asserted injury arises from government regulation of someone else (animals) but more is needed, court held they lacked standing because no current plans to return to Sri Lanka and no facts showed damage to species would produce imminent injury to them and unlikely court could redress their injury ix. **Case & Controversy** 12. Parties must be adverse and the court cannot issue advisory opinions o. *Muskrat v. United States*: Congress passed an act allowing Native Americans to bring suit against the US to determine the constitutionality of acts they passed allocating lands and restricting rights to land, the act stated that if found unconstitutional both sides would be paid, court found no case or controversy because parties not adverse and would be advisory opinion x. **Ripeness** 13. Brought suit too early, have not been injured yet xi. **Mootness** 14. Bring suit too late, can't be redressed by court d. **Congressional Control Over Federal Court Jurisdiction** xii. Article III Sec. 2: gives Congress power to regulate appellate jurisdiction of Supreme Court (exceptions clause) xiii. Although the Supreme Court's appellate jurisdiction is derived from Art. III of the Constitution, it is conferred subject to whatever exceptions and regulations Congress chooses to make 15. *Ex parte McCardle:* McCardle arrested for critical articles and sought habeas corpus but was denied, sought appellate review based on statute permitting SC appellate jurisdiction over such matters, Congress then passed new law repealing that part of statute, court held Congress can withdraw jurisdiction from SC because Art. II conferred appellate jurisdiction with such exceptions and under such regulations as congress shall make Ch. 3: Federal Legislative Power 1. **Express and Implied Federal Powers** a. **Necessary and Proper Clause** i. Necessary & Proper Clause- Constitution sets up the ends, but more is needed for the means; implied powers ii. The Necessary & Proper clause expands Congress' authority, not limit it 1. *McCulloch v. Maryland*: whether congress had power to charter a bank and whether MD could tax it, establishing bank not enumerated but there are incidental and implied powers under N&P clause, MD can't tax bank because rule of Constitution supreme 2. The means must be reasonably related to an end (enumerated power in the Constitution), reasonably related could be a stretch a. *United States v. Comstock:* could congress enact civil commitment proceedings, court held yes because N&P clause grants congress broad authority, statute is modest addition to other related statutes, protect society, accounts for state interests, statute reasonably related to enumerated powers in Art. I, Congress could enact law that furthers other laws enacted in incidental authority 2. **Commerce Clause** b. Article I, Sec. 8, Clause 3: Congress shall have the power to regulate commerce with foreign Nations, and among the several states and within the Indian tribes c. **Early View** iii. Congress has the power to regulate interstate navigation under the commerce clause 3. Anything intrastate is reserved to the states 4. *Gibbons v. Ogden:* Ogden had exclusive right to operate steamboats in NY, Gibbons started and got sued, court held commerce includes navigation and "among" means between states, the only thing that limits Congress' plenary power is the wisdom and discretion of Congress iv. Congress does not have the power to regulate manufacturing under the commerce clause; manufacturing ≠ commerce 5. Formalist test b. *United States v. EC Knight Co.:* sugar refining company purchased all stock, congress enacted Sherman Antitrust Act to prevent monopolies, gov sued EC Knight for violating, court held Congress didn't have power to pass act because manufacturing and commerce are separate, slippery slope if Congress can reach manufacturing v. Congress can regulate activities occurring fully within a state if those activities have a substantial effect on interstate commerce. 6. Effects test c. Close and substantial relation to interstate commerce where control is essential or appropriate for: i. Security of traffic ii. Efficiency of interstate service iii. To maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance d. *Shreveport Rate Case:* RR company charged more for interstate lines than intrastate lines, Congress created regulation fixing prices, court held that wherever interstate and intrastate transactions are so related that the gov of one involves control of the other, Congress is entitled to prescribe final rule, N&P clause gives Congress authority vi. Congress's commerce power is plenary and they can prohibit activities 7. *Champion v. Ames:* federal lottery act prohibited buying/selling across state lines, court held that Congress's power is plenary and prohibiting is necessarily regulating, no 10^th^ amendment argument because Congress has express authority by commerce clause vii. [Indirect] effects on commerce are not enough 8. *Hammer v. Dagenhart:* act prohibited goods made by children under certain age from being sold in interstate commerce, court held this exceeded Congress's power because regulation had indirect effect on promoting interstate commerce, child labor is purely local issue (10^th^ amendment), did regulate commerce but beyond authority to regulate the manufacturing 9. *Carter v. Carter Coal Co*.: coal conservation act regulated min/max hours for workers, court held that unlike Hammer, statute does not regulate transportation and only regulates labor practices, production and transportation are separate, this had indirect effect on commerce d. **New Deal Age** viii. Broad view of commerce 10. Substantial effects test (back to Shreveport) e. Close and substantial relation to interstate commerce f. *NLRB v. Jones & Laughlin Steel Corp.:* NLRB ordered corporation to cease discrimination and reinstate employees, court held that Congress has power to regulate intrastate activities that have a close and substantial relation to interstate commerce, the stoppage of the operations by industrial strife would have huge effect on interstate commerce 11. *Hammer v. Dagenhart* is overruled g. Congress can choose means to attain a legitimate end h. *United States v. Darby:* FLSA prohibited interstate shipment of goods produced by employees whose wages and hours of work were below requirements, court held that prohibition of shipment interstate of goods produced under substandard conditions is within Congress's authority, overruled Hammer and the direct/indirect test, yes substantially related to interstate commerce ix. Aggregation Principle: may have no effect on commerce individually, but together there is an effect on commerce 12. *Wickard v. Filburn:* agricultural adjustment act set quotas, Filburn exceeded quota but was going to use excess for personal use, court found that Congress had power to regulate home consumption of what because even though no individual effect on congress, in the aggregate it has a substantial effect, no jurisdictional element (regulated farm production w/o expressly linking production to interstate commerce 13. *Katzenbach v.* McClung: Ollie's bbq receives 70k worth of food annually from out of state, restaurant refused to seek African americans, court held congress had power to regulate because array of testimony that discrimination had restrictive effect on interstate travel by African americans, viewed in isolation food purchased by restaurant was insignificant, but taken together with other restaurants is significant x. Motive is irrelevant to whether Congress has commerce power 14. *Heart of Atlanta Motel, Inc. v. United States:* motel accessible to interstate highways and solicit people from out of state, testimony showed discrimination by hotels impedes interstate travel, court held motive of congress was irrelevant and they could regulate local activities that had harmful effect upon interstate commerce e. **Recent Cases** xi. Congress does not have power over intrastate activities that are not economic in nature 15. *United States v. Lopez:* Congress enacted gun free school zones act, court outlined three categories where Congress has power: i. Congress may regulate the use of channels of interstate commerce (*Darby* & *Heart of Atlanta*) j. Congress is empowered to regulate and protect instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may only come from intrastate activities (*Shreveport*) k. Congress has the power to regulate those activities having a substantial relation to interstate commerce (*NLRB*) 16. *United States v. Morrison:* Congress passed violence against women act to allow victims federal civil remedies, court held gender motivated crimes of violence are not economic and there is no jurisdictional element in statute, even though there were congressional findings those alone are insufficient, cannot use an aggregate argument because non-economic xii. Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class 17. A lengthy and detailed statute creating a comprehensive framework for regulating economic, commercial activity is under the power of Congress to enact 18. The intrastate activity does not have to be commercial and can be within the home 19. Rational Basis Test: The court need not determine whether the activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding l. *Gonzales v. Raich:* Congress passed controlled substances act and made manufacture/distribution/possession of marijuana federal crime, CA created exemption for medicinal purposes with physician approval, plaintiffs charged by federal agents, court held that like Wickard Congress has power to regulate homegrown marijuana because it is purely intrastate activity part of economic class that has substantial effect on interstate commerce xiii. Congress does not have the power to compel people to become involved in commerce 20. *National Federation of Independent Business v. Sebelius (1):* Congress enacted individual mandate under affordable care act to require Americans to maintain minimum insurance and those who don't must pay a fee to the IRS, insurance companies prohibited from denying coverage to those with pre-existing conditions, hospitals pass cost on to insurance companies who raise premiums and healthy people end up paying more, court held congress does not have power to pass mandate because does not regulate existing commercial activity, instead compels individuals to become active in commerce f. **Factors in Determining Substantial Effect** xiv. Addresses commerce or economic enterprises xv. Essential part of larger regulation of economic activity xvi. Jurisdictional element tying the regulated items to interstate commerce xvii. Legislative findings xviii. Truly national or truly local (10^th^ Amendment) 3. **Taxing Power** g. Congress has power to tax with limited exceptions h. Article I, Sec. 8: Congress has power to lay and collect taxes, duties, imposts, and excises...and provide for the common defense and general welfare (+ Necessary and Proper Clause) i. Taxes don't have to be limited to interstate commerce and Congress can tax wholly intrastate matters j. [Limitations:] xix. Article I, Sec. 9: no capitation or other direct tax shall be laid unless in proportion to the census or enumeration xx. No preference for one state k. Test for tax or penalty: xxi. Does the measure raise some revenue? (Kahriger) 21. Negligible revenue is enough xxii. Even if it does raise some revenue, does it function in a fashion that is more properly characterized as prohibitory or penal? 22. Disguised regulation must be validated by reference to some other granted power besides power to tax (such as commerce power) l. If a disguised regulation (penal), measure must be grounded by some other power besides taxing power, such as commerce power xxiii. *Child Labor Tax Case:* if employer departs from prescribed course of conduct for employing children of a certain age they have to pay gov 1/10 of entire net income for a full year (heavy exaction) (degree doesn't matter), court held that the tax here is a penalty to coerce people of the state to act as congress wishes in a respect completely the business of the state government, contained scienter requirement (mens rea typically found in punitive statutes, tax was enforced in part by department of labor who is responsible for punishing violations and not collecting revenue m. To stand on its own as a tax, measure must have a conceivable revenue raising purpose and not have provisions extraneous to any tax need (penalties) xxiv. *United States v. Kahriger:* occupational tax on persons in business of accepting wagers and requires them to register with IRS, plaintiff was professional gambler and argued tax was penalizing illegal intrastate gambling, the court held that the tax was a tax and not a penalty, all provisions are adapted to collection of a valid tax n. [Characteristics of a Tax:] xxv. People will pay less for tax than for actual insurance xxvi. No scienter (mens rea) xxvii. Payment is solely collected by IRS through normal means of taxation 23. *National Federation of Independent Business v. Sebelius (2):* affordable care act insurance mandate charged people a fee if they did not comply, the court found yes produces revenue and not a penalty, amount due for the fee will be far less than price of insurance, no scienter requirement, payment collected solely by IRS, every tax in some way regulatory, people still fully comply with law if they don't pay for coverage and instead pay fee, not a direct tax 4. **Spending Power** o. Court has been generous in viewing Congress' spending power p. Art I, Sec 8: Congress shall have power to... provide for the common defense and general welfare of the United States (+ Necessary and Proper Clause) q. Congress can attach conditions on spending, but can they do so to achieve what they can't do directly? Yes r. Congress can spend broadly and it does not have to be for an enumerated power, but still can't infringe on reserved states' rights xxviii. *United States v. Butler:* agricultural adjustment act empowered secretary of agriculture to pay farmers to reduce number of acres dedicated to production, the question was whether the spending power has to be linked to commerce or another enumerated power, two views were asserted: m. Madison- Congress can only spend for enumerated power n. Hamilton- Congress can spend more broadly s. Conditions on federal funds that mildly encourage and not coerce state action is valid use of spending power xxix. *South Dakota v. Dole:* South Dakota permits 19yo or older to purchase beer containing up to 3.2% alcohol, Congress enacted act which directs secretary of transportation to withhold percentage of federal highway funds to states where purchase or possession of alcohol is lawful under 21, court found within Congress' authority to use spending power to indirectly encourage uniformity in laws, incident to spending power Congress can condition federal funds, Court found yes designed to serve general welfare needed national solution, directly related to safe interstate travel, reasonably calculated to address impediment to purpose for which funds are expended, not compulsion 24. [Limitations on spending power:] o. Must be in pursuit of general welfare (should defer substantially to judgment of Congress) p. If Congress wishes to condition federal funds, must do so unambiguously and enable states to exercise their choice q. Conditions on federal grants might be illegitimate if unrelated to federal interest in particular national projects or programs r. Other constitutional provisions may provide independent bar to conditional grant of federal funds (power may not be used to induce (so coercive pressure turns into compulsion) states to engage in activities that would themselves be unconstitutional) 25. *National Federation of Independent Business v. Sebelius (3):* The Affordable Care Act expanded the scope of the Medicaid program and increased the number of individuals states must cover, if the state does not comply with the act's new requirements it may lose not only the federal funding for those requirements but [all] of its federal Medicaid funds, Medicaid spending would increase by 100 billion per year, instead of simply refusing to grant the new funds to states that don't comply Congress also threatened to withhold those states' existing Medicaid funds, the court held that this case was different from Dole and the financial inducement here is much more than relatively mild encouragement and was instead a gun to the head, threatened loss of 5% of a state's overall budget is okay but over 10% makes it coercion 5. **War and Treaty Power** t. Article II, Sec. 2 xxx. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States xxxi. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur u. Under the treaty power, Congress can do something that it can't do directly under the commerce clause (at least in this case) xxxii. *Missouri v. Holland:* Congress passed act providing certain migratory birds shall not be destroyed or taken contrary to regulation of the department of agriculture, a district court held that Congress did not have power to enact law under Art. IV, another district court held Congress did not have power to enact law under commerce clause, in response Congress entered into a treaty and passed the migratory treat act protecting migratory birds, Congress was given express power to make treaties, the court held that Congress has the authority under the treaty power to make a treaty when Congress can't do it under the commerce clause v. War power does not end with the cessation of hostilities xxxiii. *Woods v. Cloyd W. Miller Co.:* The Housing and Rent Act made it unlawful to offer, solicit, demand, accept, or receive any rent for the use of occupancy of any controlled housing accommodations in excess of the maximum rent prescribed by an agency, the following day the appellee demanded 40 to 60% increases for rental accommodations, the district court held that Congress' power to regulate rents under the war power ended with the presidential proclamation terminating hostilities, the court held that the war power does not necessarily end with the cessation of hostilities and there was still a housing deficit, Congress also does not need to explain what power it is using, could be a slippery slope to allow war powers to continue but not an issue here 6. **State Immunity from Federal Regulation** w. [Three key principles:] xxxiv. When Congress is acting under its Article I powers, Congress can regulate the states in the same manner that it regulates private actors 26. *National League of Cities v. Usery:* The original FLSA specifically excluded the states and their political subdivisions from its coverage, Congress then extended the minimum wage and maximum hour provisions to almost all public employees employed by the states and their various political subdivisions, the court held that the challenged provision would impermissibly interfere with the integral governmental functions of states and their political subdivisions, the provisions would significantly alter or displace the states' abilities to structure employer-employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation, if Congress could do this there would be little left to the states' separate and independent existence (state sovereignty), Congress cannot pass laws that displace the states' freedom to structure integral governmental functions 27. Usery is overruled and integral governmental functions are no longer the test s. *Garcia v. San Antonio Metropolitan Transit Authority:* The San Antonio Transit Authority refused to pay overtime wages under the FLSA, the transit authority argued they were a state governmental entity engaged in a traditional governmental function and was thus constitutionally immune from the act, the district court held they were immune because was an integral governmental function (*Usery* test), the court held that the integral governmental function test is unworkable and inconsistent with federalism, judges are unelected and they shouldn't make the decision about what is an integral governmental function, the composition of the federal government was designed in large part to protect the states from overreaching by Congress, Congress' action here contravened no affirmative limit on Congress' power under the commerce clause, Congress has the authority under the commerce clause to regulate the wages and hours of state employees xxxv. Congress cannot compel a state to enact legislation, but it can use incentives 28. *New York v. United States:* The take title provision under the Low Level Radioactive Waste Policy required states that failed by a particular date to dispose of all waste generated within their borders to take title to the waste and if they failed to do so they would face liability for all damages incurred by waste generators, residents in NY opposed the disposal facilities, petitioners do not contend that Congress lacks the power to regulate disposal of radioactive waste and if Congress wished to it could pre-empt state radioactive waste regulation, petitioners only argue that the 10^th^ amendment limits the power of Congress to regulate in the way chosen, the court held Congress may not commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program, the state must have the decision whether to comply, here the states had no choice 29. *Dole* (as above) xxxvi. Congress cannot require state officials to implement or administer federal laws 30. *Printz v. United States:* The Brady Act required the state Attorney General to establish a national instant background check system, under the system state law enforcement officers would have to respond to applications and if they did not they could be fined or imprisoned, petitioners object to being pressed unto federal service and contend that congressional action compelling state officers to execute federal laws is unconstitutional, looking at historical laws only establishes that the constitution permitted an imposition of an obligation on state judges to enforce federal laws, these early statutes do not imply an obligation on states, the structure of the Constitution established a system of dual sovereignty, this act transfers the duty to faithfully execute the laws to state officers, Congress is taking credit for solving problems but having the states pay for it, the court held that it matters not whether policymaking is involved and no case by case weighing of the burdens or benefits is necessary because such commands are fundamentally incompatible with our constitutional system of dual sovereignty 7. **State Sovereign Immunity as a Limit on Federal Power** x. Art. II, Sec. 2: "between a state and citizens of another state" (but then the 11^th^ Amendment created) y. 11^th^ Amendment xxxvii. 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 z. Without express consent from the state, Congress does not have the power to subject states to private suits for damages in state courts xxxviii. *Alden v. Maine:* A group of probation officers alleged that the state had violated the overtime provisions of the FLSA, the district court dismissed and held that Maine enjoyed sovereign immunity from suit in federal court under the 11^th^ amendment, they refiled in state court and the state court dismissed for sovereign immunity, the court held that Congress cannot use its Art. I powers to enact an FLSA provision to get rid of a state's sovereign immunity from suits in its own courts thereby allowing citizens to sue a state in state court without the state's consent, sovereign immunity is not derived from or limited by the 11^th^ amendment but rather is derived from history, private suits against nonconsenting states especially suits for money damages may threaten the financial integrity of the states xxxix. States can explicitly consent and waive sovereign immunity Ch. 4: Limitations on State Power 1. **Preemption of State Law by Federal Law** a. Art. VI, Clause 2 i. This Constitution, and the laws of the United States... shall be the supreme law of the land b. Congressional control over an area can impliedly restrict the states' power c. [Types of Preemption:] ii. Express Preemption: when Congress expressly displaces state regulation of a particular subject (still have to determine if state law falls under federal legislation) iii. Implied Preemption 1. Conflict Preemption a. Impossibility Preemption: when compliance with both federal and state regulations is a physical impossibility b. Obstacle/Frustration Preemption: when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress 2. Field Preemption (very rare): When Congress chooses to regulate a subject exclusively by federal law (no state laws may apply to the subject even if the state laws do not directly conflict with the specific requirements of federal law); Congress has occupied the field d. *Silkwood v. Kerr-McGee Corp.:* Plutonium escaped from a federally licensed nuclear facility and was subject to regulation under the Atomic Anergy Act, the contamination level in Silkwood's apartment required all of her stuff to be destroyed, her dad brought suit on her behalf in state court and the jury awarded actual damages and punitive damages, the court of appeals reversed the punitive damages award because federal laws regulating the facility preempted state tort law barring recovery of punitive damages, the court held that even though we held in Pacific Gas that the federal government has occupied the entire field of nuclear safety concerns nothing was said about displacing state law remedies, Congress did not provide any federal remedy for persons injured by such conduct and without state tort law remedies injured parties would have no redress, no field preemption because Congress did not create remedies, no conflict preemption because possible to pay both federal fines and state punitive damages for same incident and exposure to punitive damages does not frustrate purpose of federal remedial scheme for federal fines, a state tort claim for punitive damages is not preempted by the Atomic Energy Act 2. **Dormant Commerce Clause** e. Whether the mere grant of Art. 1 powers to Congress divests the state government of any power f. [Commerce Clause Big Picture:] not only can Congress 1) directly regulate interstate commerce, but it also can 2) regulate the "channels and instrumentalities" of interstate commerce and 3) intrastate economic activities that in the aggregate have a substantial effect on interstate commerce g. [Early Cases:] iv. The mere grant to Congress of a power suggests preclusion from the states acting on that power 3. *Gibbons v. Ogden (2):* Gibbons challenged NY law that restrained him from offering interstate steamboat services, argues that the Constitution grants Congress the whole power to regulate interstate commerce so states can't, the court held that even though the states and federal government can exercise the right to tax at the same time when a state proceeds to regulate commerce with foreign nations or among the several states it is exercising the very power that is granted to Congress h. Even if Congress has not attempted to regulate a particular aspect of commerce that they could, Congress's dormant power has a negative implication: the states are subject to implied limitations v. [Uniform National Standard Test (no longer used)] 4. States cannot regulate subjects for which a uniform national standard is necessary c. *Cooley v. Board of Wardens:* upheld PA law requiring ships to hire a local pilot when entering a local port d. *Wabash, St. Louis & Pacific Ry. Co. v. Illinois:* struck down IL law regulating rates for interstate RR transportation vi. [Discrimination Against Interstate Commerce Test ] 5. Is state discriminating against interstate commerce vs. intrastate commerce? e. States can discriminate against interstate commerce as long as it furthers a legitimate state interest and there are no reasonable non-discriminatory alternatives available 6. *Dean Milk Co. v. City of Madison, Wisc.:* An ordinance in Madison made it unlawful to sell any milk as pasteurized unless it had been proceeded and bottled at an approved pasteurization plant within a radius of 5 miles from the central square, appellant was denied a license to sell its products within Madison solely because its pasteurization plants were more than 5 miles away, the court held that in erecting an economic barrier protecting a major local industry against competition from without the state Madison plainly discriminates against interstate commerce, yes it furthers a legitimate state interest of health and safety but reasonable alternatives were available such as excluding milk not graded as high as their wanted standards regardless of where it was pasteurized 7. *Hughes v. Oklahoma:* OK statute provided that no person may transport or ship minnows for sale outside of the state which were seined or procured within OK waters, minnow business owner in TX arrested for buying minnows from OK, the court held that the statute on its face discriminates against interstate commerce because it forbids the transportation of minnows out of the state and overtly blocks the flow of interstate commerce at the state's borders, the state's interest in conservation and protection of wild animals is a legitimate state interest but alternatives are available such as limiting the amount of minnows that could be caught, discrimination has to be the only way to protect the state interest vii. [Excessive Burden on Interstate Commerce Test] 8. Where a state law regulated evenhandedly to effectuate a legitimate local interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the local benefits f. Balancing test: If legitimate state interest, then question of degree i. Burden on interstate commerce and whether interest could be promoted with lesser impact ii. Benefit on state 9. *Kassel v. Consolidated Freightways Corp. of Delaware:* Iowa statute restricts the length of vehicles that may use its highways, the court held that highway safety is a legitimate state interest but it could impose an excessive burden on interstate commerce, truckers have to stop and disassemble trucks to meet length requirements before entering Iowa, results in inefficient transportation and added expense, border cities have exemption, the exemption shows a hint of protectionism (passing off burden to other states), the statute imposes an unreasonable burden on interstate commerce and is unconstitutional 10. *Southern Pacific Co. v. State of Arizona:* AZ Train Limit Law made it unlawful for any person or corporation to operate within the state a train with more than 14 passenger or 70 freight cars, Congress has declined to pass legislation specifically limiting trains to 70 cars (dormant), because of the law appellant is required to haul over 30% more trains in AZ, the burden amounts to about \$1 million per year, freight trains have to be broken up and reformed at the CA and NM borders and the law often controls the length of passenger trains all the way from Los Angeles to El Paso, the law does not appear to lessen danger of accidents but could increase because more trains being used, the state interest in reducing casualties and accidents is so slight as to not outweigh the national interest in keeping interstate 11. *South Carolina State Highway Dept. v. Barnwell Bros.:* SC prohibits the use on state highways of motor trucks and semi trailers whose width exceeds 90 inches and whose weight including load exceeds 20,000 pounds, the trial court found the law was unconstitutional because it placed an unlawful burden on interstate commerce, the court held that the bare possession of power by Congress to regulate interstate traffic does not force the state to conform to standards which Congress might but has not adopted or curtails their power to take measures to insure the safety and conservation of their highways, the state has a strong interest in ensuring safety and economical administration of highways, to successfully regulate its highways the state must impose regulations equally on interstate and intrastate traffic, thus there is no unreasonable burden on interstate commerce viii. [Market Participant Exception:] 12. Allows states to discriminate against interstate commerce when they are buying or selling goods or services in the market (as opposed to regulating the market) 13. *South-Central Timber Development, Inc. v. Wunnicke:* Alaska had a requirement that timber taken from state lands must be processed within the state prior to export (protectionist), when imposing this requirement the state charges a significantly lower price for the timber than it otherwise would, if the state is acting as a market participant rather than as a market regulator the dormant commerce clause places no limitation on its activities, the court held that the market participant exception does not apply because Alaska was acting as more than merely a seller of timber in attempting to regulate timber processing, Alaska left buyers no choice of where to process their timber, here there is foreign commerce, a natural resource, and restrictions on resale, this exceeds the narrow scope of the exception ix. [Congressional Consent:] 14. In legislation enacted under its power to regulate interstate commerce, Congress may consent to state laws that would otherwise violate the dormant commerce clause 3. **Privileges and Immunities Clause (Comity Clause)** i. Article IV, Sec. 2 (not the 14^th^ Amendment) x. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states j. Is there a protected privilege? xi. If yes: 15. Is there a substantial reason for the discrimination, and 16. Does the discrimination bear a substantial relationship to the states' objectives (are there less restrictive means?) k. [Four Important Principles:] xii. The clause is an anti-discrimination measure that limits the ability of states to treat citizens of other states different from the state's own citizens xiii. The clause limits discrimination only with respect to rights that are "fundamental to the promotion of interstate harmony" 17. Medical services 18. Travel 19. Not hunting xiv. The clause may allow a state to discriminate against non-residents, even with respect to certain very important rights, if the state has a "substantial reason" for the discrimination xv. The term "citizen" means U.S. citizens and does not include corporations l. *Baldwin v. Fish and Game Commission of Montana:* Montana residents could purchase licenses to hunt elk only for \$4 but to only hunt elk a nonresident had to buy a combination license for \$151, the licensing scheme was challenged, the court held that only with respect to those privileges and immunities bearing upon the vitality of the nation as a single entity must the state treat all citizens resident and nonresident equally, elk hunting by nonresidents in Montana is a recreation and a sport and not basic to maintenance or wellbeing of union (not deprived of means of a livelihood), yes discriminatory but not basic to maintenance or wellbeing of union m. *Supreme Court of New Hampshire v. Piper:* NH limits bar admission to state residents, Piper applied to the NH bar and they told her she would have to establish a NH residence prior to being sworn in, she filed suit asserting that the NH bar admissions law violated the Privileges and Immunities Clause, the court found that one of the privileges which the clause guarantees to citizens of state A is that of doing business in state B on terms of substantial equality with the citizens of that state, the practice of law is important to the national economy and is fundamental to the promotion of interstate harmony and the vitality of the nation as a single entity, NH does not have a substantial reason because there is no reason to believe nonresidents will practice dishonestly or will not be abreast of local rules and procedures or will not be available when needed, the discrimination also does not bear a substantial relationship to the state's objective because out of state attorneys can be required to appoint a local attorney who would be available, the law violates the privileges and immunities clause 4. **State Power to Regulate the House and Senate** n. States generally cannot regulate the House and Senate by restricting their membership o. Art. I sets forth the only qualifications for members of Congress, and the states may not attempt to impose additional qualifications Part IV: Separation of Powers 1. Not express but implied in the structure of the Constitution a. Art I, II, III (vesting clauses) 2. Checks and balances prevent abuse by one branch 3. However, there is still shared responsibility Ch. 5: Federal Executive Power 1. Art. II, Sec. 1 a. The executive power shall be vested in a President of the United States of America 2. **Domestic Affairs** b. The President's power to issue an order must come from either an act of Congress or from the Constitution c. Zone 3: not express or implied from Congress or Constitution i. *Youngstown Sheet & Tube Co. v. Sawyer:* Disputes arose between steel companies and their employees during the Korean War, the employees representative gave notice of an intention to strike when the bargaining agreement expired, an agreement could not be made and the President issued an executive order to keep the steel mills going, President notified Congress afterwards, the companies argued that the seizure was not authorized by an act of Congress or by any constitutional provision, there is no statute that expressly authorizes the President to take possession of property as he did here, not expressly in Constitution so argue that it is implied in Constitution from aggregate of his powers, not under military power or take care clause or vesting clause, this is a lawmaking function and the President was not carrying out a congressional policy but his own policy ii. [Analyzing President Power: 3 Zones of Authority:] 1. When acting pursuant to express or implied authorization of Congress, their authority is at its maximum (strongest presumption of constitutionality) 2. When acting in absence of congressional grant or denial of authority, they can only rely upon their own independent powers... but there is a zone of twilight in which the President and Congress may have concurrent authority, in which its distribution is uncertain 3. When taking measures incompatible with express or implied will of Congress, the President's power is at its lowest, for then they can rely on Article II powers minus any of Congress' Article I powers over the matter (scrutinize with caution) 3. **Foreign Affairs** d. Foreign affairs is different: the failure of Congress to delegate authority does not in the area of foreign policy imply congressional disapproval of action taken by the executive e. Probably zone 1: implied authorization (Congress acquiesced) iii. *Dames & Moore v. Regan:* The American embassy in Tehran was seized and diplomats were held hostage, in response President Carter declared a national emergency and blocked the removal or transfer of all property for the Iran government, an agreement was entered into between the US and Iran, the President issued executive orders and the Treasury issued regulations to implement the agreement, the orders required courts to suspend pending litigation against Iran, Petitioners were currently suing the Iranian government and alleged that the actions of the President and the Treasury were beyond their statutory and constitutional powers, court found no express grant of power but potentially implied power, the court held the settlement of claims is a necessary incident to the resolution of a major foreign policy dispute and Congress has acquiesced in the President's action, the President does not lack the power to settle such claims here f. Controversial "extra-constitutional origin of the foreign affairs power" theory iv. *U.S. v. Curtiss-Wright Export Corp.:* Court held that the President may exercise not only the powers that the Constitution expressly grants to the federal government, but also other foreign affairs powers enjoyed by all sovereigns, the court allowed Congress to delegate to the President the power to declare by proclamation whether exporting arms to certain countries would be a crime g. [Treaties] v. Art. II, Sec. 2, Clause 2 4. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur vi. If two treaties can't be harmonized, then the later one will control vii. Treaties can be invalidated by statute viii. *Goldwater v. Carter:* Goldwater and other senators got together to argue that President Carter did not have the authority to unilaterally terminate the 1954 Defense Treaty with the Republic of China, we don't really know whether the President had the authority to do so but effectively he did, the concurrences said it was a nonjusticiable political question and issue of ripeness 4. **Executive Privilege** h. Exception to a general duty i. Trying to protect the President's communications with their close advisors j. There is an absolute right to keep confidential any communications with executive advisors regarding military, diplomatic, or sensitive national security interests (subject to in camara review) k. There is a presumptive right to keep confidential any communications with executive advisors on other subjects, but this presumptive right must yield to the demonstrated specific need for evidence in a pending criminal trial ix. *United States v. Nixon:* Nixon didn't know about Watergate ahead of time but tried to cover up after, his tapes and memos were subpoenaed and he argued he had absolute executive privilege or if not absolute there was at least privilege in this case, case is justiciable, argues for absolute privilege because protection of communication is important and separation of powers, court held not enough reason for absolute immunity here because not for the protection of military, diplomatic, or national security secrets (absolute immunity for these subject to in camara/private review), under second argument court balances privilege with duty of judicial branch in doing justice, it is necessary to resolve the competing interests in a manner that preserves the essential functions of each branch, there is a presumptive right to immunity on other subjects but the presumption must yield to the specific need for evidence in a criminal trial, the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial, no absolute or presumptive privilege here 5. **Executive Immunity** l. Not mentioned anywhere in the Constitution x. The only immunity discussed in the Constitution is immunity for any speech or debate in either House for Senators and Representatives m. The President is immune from civil liability for actions they take in their official capacity xi. *Nixon v. Fitzgerald:* Fitzgerald sued Nixon claiming he had suffered retaliation for his congressional testimony on the Department of Defense, Nixon claimed he had absolute immunity from liability for any action he took against Fitzgerald while President, the court held that the President is entitled to absolute immunity from damages liability predicated on his official duties, under the Scheuer case most state executive officers were accorded qualified immunity but sensitive duties of judges and prosecutors were accorded absolute immunity, similarly the President's unique status distinguishes him from other executive officials, not being immune could distract the President or make him overly cautious, even with immunity there are still sufficient remedies for misconduct n. The President is not entitled to temporary immunity for "unofficial acts" he does prior to becoming President xii. *Clinton v. Jones:* President Clinton was named a defendant in a suit which alleged that before he was President and while he was Governor of Arkansas Clinton had a state employee come to his room after speaking at a conference and he made sexual advances at her, the President argued to dismiss for immunity and to dismiss and refile after he was not President (temporary immunity while President), this conduct was of unofficial acts not official acts and there is thus no support for immunity for unofficial acts, this is distinguishable from Fitzgerald because there our central concern was to avoid rendering the President unduly cautious in the discharge of his official duties o. A former President has absolute immunity from criminal prosecution for official acts within the President's exclusive constitutional authority p. A former President has at least presumptive immunity for all other official acts xiii. *United States v. Trump:* Trump was indicted for his conduct while in office conspiring to overturn election results, the court held that Congress cannot criminalize acts within the President's exclusive constitutional authority and courts cannot hear criminal prosecution reviewing such acts, the President therefore has absolute immunity from criminal prosecution for official acts taken under the President's exclusive authority, the former President also has at least presumptive immunity for all other official acts Ch. 6: The Legislative Process 1. **Delegation of Legislative Power** a. Art. I, Sec. 1 i. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives b. [Nondelegation Doctrine]: The standards for determining when Congress crossed the constitutional line between delegating legislative authority and simply allowing executive and judicial actors to carry out their constitutionally prescribed functions ii. Statutes which delegate a substantial amount of policy making authority to actors outside Congress raise some constitutional questions 1. First Congress: difficult to tell 2. Second Congress: concern by some members 3. Early Cases (1813-1928): no real problems 4. The New Deal: the nondelegation doctrine exists 5. After the New Deal: its demise, "Congress simply cannot do its job absent an ability to delegate power under broad general directives" iii. The Constitution does not expressly forbid Congress from delegating the legislative power but courts have concluded that Congress may not delegate its legislative power iv. Current Test: 6. Congress impermissibly delegates legislative power only when it fails to provide an "intelligible principle" to guide the agency's or the executive official's exercise of discretion v. The Supreme Court has rejected almost all challenges claiming that Congress has impermissibly delegated legislative authority 7. *Whitman v. American Trucking Associations:* Section 109 of the Clean Air Act required administrator of EPA to promulgate national air quality standards and revise every 5 years, the administrator revised the standards and some states and companies challenged the new standards and the district court held Congress impermissibly delegated legislative power, we have only found the requisite intelligible principle lacking in two cases, here Congress must only provide substantial guidance on setting air standards that affect the entire national economy, does not have to be a determinate criterion for saying how much of the regulated harm is too much, there was enough guidance for an intelligible principle here because Congress outlined the goals and instructions to set standards (not a high bar)